R v McFall HC Hamilton T20514/Cri-2004-019-20514
[2005] NZHC 1665
•7 April 2005
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
T20514
THE QUEEN
v
RICHARD ALAN MCFALL NADIA RAIHA MCFALL PETER JOHN REYLAND IAN CHARLES ANDERSON DAVID ROBERT NATHAN
NICHOLAS JAMES CARTWRIGHT ERANA ELLEN MOORE JOSEPH HURU TURNER
JOSEPH WILLIAM MOORE KORO TATA
SAMUEL THOMAS HOWE EMILY MARIA ANANIA JAMIE NGAHINA GRACE
Defendants
Hearing:4 April 2005 (Heard at Hamilton)
Appearances: P. Crayton, M. Sturm, J. Mackie for Crown
C. White and B. Hesketh for R.A. McFall
M.I. Koya for N.R. McFall
G. Wilson for Anderson
R. Laybourn and K. Tustin for Turner
W. Dollimore for Nathan
S. Ellis and J. Buckle for Cartwright
W. Pyke and D. Cherry for E.E. Moore
R. Brown for J.W. Moore
D. Wallwork for Tata I West for Howe
R V MCFALL And Ors HC HAM T20514 7 April 2005
S. Cassidy for Anania
R. Barnsdale for Grace Judgment: 7 April 2005 at 3.00 Reasons: 4 April 2005
JUDGMENT OF PRIESTLEY J
(As to proceeding with trial in absentia of four absconding accused)
The application
[1] The Crown makes an application which fairly can be described as extraordinary. It does so against the basis of a regrettable and unusual situation which has arisen at the outset of this trial. The application requires the exercise of a judicial discretion. It also involves important issues of jurisdiction.
[2] I have decided to give an oral decision to meet the dictates of urgency. The urgent factors which confront the court include the need to empanel a jury tomorrow.
[3] I have been greatly assisted by the submissions of all counsel who have contributed wisely and responsibly to what, it will be apparent, is a difficult and complex issue.
[4] In essence, the Crown applies for this trial to proceed in the absence of four of the thirteen accused who face an indictment comprising a total of fifteen counts.
[5] This application has been driven, so far as the Crown is concerned, by the failure of the four relevant accused, Richard Alan McFall, Nadia Raiha McFall, Jamie Ngahina Grace, and Peter John Reyland to answer their bail.
[6] Those four accused failed to appear on the first day of the trial at 10.00am on Monday 4 April. The other nine accused all did appear. All but one of those accused had been bailed. All of them answered to their bail.
2
Background
[7] It is necessary for me to recite briefly the relevant procedural history of this trial. The indictment specifies serious offending under the Misuse of Drugs Act 1975 spanning alleged offending between May 2001 and early July 2003. Six of the counts specify offences under the Arms Act 1983, which are irrelevant so far as the matter I have to decide is concerned. The other nine counts allege conspiracies involving methamphetamine (both a Class A and Class B drug at the relevant times) and also heroin.
[8] The four accused who have absconded on bail can fairly be described as leading conspirators in the context of the case the Crown intends to present.
[9] In his submissions, Mr Crayton for the Crown recognises the centrality of the four absconding accused by pointing out three possible options.
[10] The first option is to adjourn the entire trial to enable the police to find and arrest the absent accused. The second option (which is the subject of the Crown’s application) is to proceed against all thirteen accused, including the four absent accused. The third option is to adjourn the trial so far as the nine attending accused are concerned. This would require considerable re-organisation, new disclosure and other pre-trial requirements which would probably take a month. That option would also involve summoning a new jury panel.
[11] The Crown’s best estimate so far as the duration of the trial if this last option was preferred would be a trial of approximately seven to eight weeks.
[12] This trial has, for a number of months, been given an indicated duration by counsel of at least twelve weeks, and possibly (depending on such factors as delays, speed, and the accused calling evidence) a duration extending out to fifteen or sixteen weeks. In the Crown’s submission, the trial time needed in respect of the four absent accused, if they were to be tried at a later date, would be no less than the estimate of the trial which was to proceed on 4 April.
[13] At the outset of the trial on 4 April, it was apparent that the four accused had absconded. It was also apparent that the three of those accused, who were represented by counsel, have given no excuse or indication to either the court or their counsel as to why they were absent. I issued warrants for the arrest of Mr and Mrs McFall and Ms Grace. Nicholson J had already issued a warrant for arrest in respect of Mr Reyland when he failed to appear at a previous callover.
[14] Turning to the procedural history, which in my judgment has considerable relevance, it is as follows:
[a]All accused were arrested in the period June/July 2003;
[b]Committals took place in respect of all accused in the period March/May 2004;
[c]The first callover in the High Court was on 25 June 2004. All four absconding accused appeared on that occasion;
[d]There was a further pre-trial conference on 24 September 2004. Again, all accused appeared.
[e]There was a further pre-trial conference at which all four appeared, on 5 November 2004.
[f]There was a further pre-trial conference, again involving the four accused and their counsel, on 17 December 2004.
[g]There was a pre-trial telephone conference on 15 February 2005. The accused Richard Alan McFall indicated, through his then senior counsel, that he was likely to plead guilty. A special arraignment date of 10 March was organised for that purpose. At that date the accused indicated a change of heart and informed the court that the not guilty pleas were being maintained.
[h]There was a further pre-trial conference on 18 March 2005. Again, all accused other than Mr Reyland appeared.
[i]On 24 March 2005 Mr Reyland failed to appear, this being the date of the issue of the warrant of arrest to which I have referred.
[15] All these conferences were before me in my capacity as List Judge for the High Court in Hamilton, with the exception of the 5 November conference before Randerson J, the 15 February 2005 telephone conference before Harrison J, and the 10 March 2005 appearance involving the accused Richard McFall which was before Venning J.
[16] Significantly, the trial date was confirmed at the 17 December 2004 conference. It had, on previous callovers, been intimated as a likely date, so far as all accused and counsel were concerned. The 4 April 2005 date was set in concrete from 17 December 2004 onwards.
[17] I have been informed from the Bar by Mr Crayton that the Crown first became aware that the accused Mr and Mrs McFall had failed to observe their bail conditions some time on the afternoon of Friday 1 April. So far as the accused Ms Grace is concerned, her absconding of bail was unheralded.
[18] I do not consider any criticism can be attached to the police or the Crown given these timelines. It was by no means apparent, so far as Mr and Mrs McFall are concerned that they would not be appearing on 4 April. So far as Mr Reyland is concerned, his appearance clearly became a matter of concern on 24 March. The efforts of the police to find him, and to date the other accused, have been unsuccessful.
[19] The position faced by the court is quite stark. The three alternatives proposed by the Crown, to which I have referred, are the only viable options open to the court.
[20] I now need to turn to whether, in the exercise of my discretion (which raises, additionally, jurisdictional matters) it is appropriate for this trial to proceed in the absence of the four accused.
Discussion
[21] The Crown’s submissions advance a number of reasons why the Crown should proceed against the four in their absence. I have been referred to R v Jones [2003] 1 AC 1 (HL); to a pre-trial judgment of Heath J in R v Williams & Ors (HC Auckland, 8 September 2004); there is useful discussion also contained in a decision of France J in R v Sthmer, (HC Wellington, 17 June 2003). There is also a brief pre- trial decision of Panckhurst J (Trial Note No. 1) in R v Howie & Ors (HC Christchurch, 21 September 2004).
[22] Significantly, in my judgment, both Heath J and Panckhurst J, following the approach of the House of Lords in R v Jones, indicating that there was jurisdiction for the High Court to exercise a carefully controlled discretion to begin a trial in the absence of an accused. I return to that aspect later.
[23] The Crown’s submissions relied heavily on R v Jones and to the other authorities which I have mentioned. There are a number of cases, both in New Zealand and other jurisdictions, which deal with a situation where, during the course of a trial, an accused absconds whilst on bail. This is not that type of situation.
[24] The Crown relied on what can be described as a “template” approach, listing nine factors, which is scheduled as an appendix to R v Jones. Along with Heath J and Panckhurst J, I accept that template as being a near exhaustive list of considerations which the court has to weigh. The starting point of course is that to try anyone in his or her absence is rare. It could, for reasons I shall shortly canvas, be regarded as intrinsically objectionable. Trials in absentia are devices which are often associated with oppressive regimes where the rule of law is frequently submerged.
[25]Returning to the nine factors or criteria, these are:
[i]the nature and circumstances of an accused’s behaviour in being absent from the trial (or disruptive), as the case may be;
[ii]Whether an adjournment might result in an accused being apprehended or attending voluntarily;
[iii]The likely time of such an adjournment;
[iv]Whether or not (and this is a highly important factor) the accused will be legally represented during the trial, regardless of whether he or she is present;
[v]The ability of an absent accused’s counsel to receive instructions and generally to run the defence;
[vi]Disadvantages to an accused in being unable to be present, including, of course, the ability to give evidence;
[vii]The risk of a jury drawing inappropriate or improper inferences from the absence of an accused. (In my judgment, this can be minimised by firm and appropriate directions).
[viii]The seriousness of the offence and its effect generally on the public and victims. (Victims are not a factor here, except in the wider sense of the pernicious nature of the supply of methamphetamine).
[ix]Matters relating to public interest.
[26] It is almost trite to observe that New Zealand’s criminal procedure and the relevant statutory provisions are based on the premise that an accused will be present throughout his or her trial. Section 355 of the Crimes Act 1961, for instance, deals with arraignments and the entitlement of a person to have the indictment read over if
required. Section 356 contains well known provisions relating to pleas. Of particular relevance is s376, which provides:
(1)Every accused person shall be entitled to be present in Court during the whole of his trial, unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.
(2)The Court may permit the accused to be out of Court during the whole or any part of any trial on such terms as it thinks proper.
[27] The analysis does not end there. Over-arching criminal procedures generally, and this application in particular, are the provisions of ss24, 24 and 27 of the New Zealand Bill of Rights Act 1990. Although I am of the view that s24 focuses largely on pre-trial matters, the right to consult and instruct a lawyer (s24(c)) obviously has some applicability during the course of a trial, as does the right to prepare a defence. With the exception of Mr Reyland, however, and his situation I shall shortly deal with, the three remaining absconding accused have already had counsel retained for them.
[28] The s25 minimum standards of procedure also have to be considered, although if the trial was to proceed in the absence of the four accused, it would clearly comply with s25. There is also, in my judgment, some tension between rights of natural justice enshrined in s27, which clearly involves such factors as an accused person being confronted by accusers, witnesses etc, and a trial in the absence of that particular accused.
[29] In the New Zealand authorities I have mentioned, Panckhurst J in R v Howie & Ors and Heath J in R v Williams & Ors, being alert to those factors, nonetheless saw no impediment to trying an accused in absentia.
[30] Section 376 cannot be read down. Sub-section (1) concurs a statutory entitlement to be present in court during the whole trial. It does not seem to me, however, that entitlement (which clearly permits an accused to be absent during some or all of the trial) is determinative on the power of this court to direct a trial in absentia. This section is subject to a helpful analysis by France J in R v Sthmer (see
generally paras 16 and 22). As Her Honour pointed out, the discretion to start and continue a trial in the absence of the accused was certainly the preference of the House of Lords in R v Jones.
[31] I turn now to a brief analysis of R v Jones. The approach taken by the House of Lords, with respect, strikes me as being sensible, principled and powerful. So, too, is the template adopted in the appendix. In the context of this trial, however, I will add another factor which I need to weigh, that being whether the absence of the four accused will cause any prejudice or unfairness to the nine accused who are present to be tried.
[32] I do not need to spell out in detail the facts of R v Jones. It involved a person who failed to appear on his fixed trial date. The trial was initially adjourned for a period of just over four months. On the second non-appearance, the trial was re- listed to the following day. The presiding Judge took the view that the defendant there had deliberately frustrated the attempts of the prosecuting authorities to conclude the trial and ruled that the trial should proceed in his absence. Particularly powerful and persuasive to me is the dictum of Lord Bingham at para 12:
Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way.
[33] This approach was also adopted by Lords Nolan and Hutton. Although Lord Hutton expressed the view that the absence of an accused in that situation could be construed as a waiver of the right to attend “in an unequivocal manner”, I, for my part, would not construe, in the absence of definite information as to why an accused has failed to appear, the absence as a waiver. My preference is the approach adopted
by Lord Rodger, who opined that an accused had an entitlment to appear and elected not to appear. This approach was also adopted by Lord Hoffmann and is consistent with what was an alternative approach by Lord Bingham.
[34] Heath J, in R v Williams & Ors, unhesitatingly adopted the Lord Bingham/Lord Rodger approach. Panckhurst J, in R v Howie & Ors, did not analyse the House of Lords decision, but adopted the approach of Heath J across the board. I also, with respect, adopt Heath J’s analysis.
[35] I turn now to the position of defence counsel. Mr White, Mr Koya and Mr Barnsdale for the accused R. McFall, N. McFall and J. Grace respectively are without instructions (clearly) on the matters raised by the Crown. They have, however, responsibly considered the Crown’s submissions and have themselves made brief submissions to me.
[36] In essence, those three defence counsel take the view that the Crown’s application, in the circumstances, cannot responsibly be opposed. They are not, however, and I specifically record, in a position to consent to the application, and did not do so.
[37] All three counsel (and indeed most of the counsel acting for the attending accused) made the obvious submission that it would be desirable for the trial to proceed in the presence of all thirteen accused.
[38] Messrs White, Koya and Barnsdale have all been retained by the Legal Services Agency. They, out of an abundance of caution, have indicated to me that if the trial were to proceed in the absence of their three clients, they would wish to seek leave to withdraw. All three, again responsibly, have indicated that if, in the interests of justice, I declined such leave, they would attend throughout the trial and represent the three accused to the best of their ability.
[39] No other counsel were in a position to oppose the Crown’s application. Indeed, some counsel saw considerable sense in it. It is clearly undesirable, so far as
the nine attending accused are concerned, for their trial to be further delayed unless it is absolutely necessary to do so.
[40] Mr Pyke, who represents the accused Erana Moore, who, at relevant times, appears to have been a member of the same household as Mr and Mrs McFall (she being Mrs McFall’s mother) submitted that his client might be subjected to considerable prejudice if counsel for Mr and Mrs McFall were not in attendance. On the basis, however, that those two absent accused are represented by counsel, Mr Pyke did not oppose a trial in the absence of the four accused. I agree with his position.
[41] Significantly, no counsel for the nine attending accused were in a position (nor did they attempt so to do) to point to any specific prejudice which would otherwise flow to their particular accused if the trial proceeded in the absence of the four.
Decision
[42] I am satisfied that, in the exceptional circumstances of this case and indeed generally, I have jurisdiction to order the trial to proceed in the absence of the four accused if, in my discretion, I consider it is in the interests of justice so to do.
[43] Weighing the authorities to which I have referred, and in particular having regard to s376 of the Crimes Act and the provisions of the Bill of Rights Act, in the absence of any statutory provision pointing specifically against a trial in the absence of the accused (which must, on any analysis, be a rare occurrence) I find the reasoning of both Lord Rodger and Lord Bingham in R v Jones compelling. In my judgment I have jurisdiction and I see nothing in any of the statutory provisions to which I have referred which comes anywhere close to denying or ousting it.
[44] It is trite to observe that criminal law in New Zealand is codified. Nonetheless, the Court’s statutory and inherent jurisdiction, (the latter as it extends to procedural matters), embrace, in my judgment, the jurisdiction to do what the Crown urges on my in this situation.
[45] I turn now to the exercise of my discretion. There are a number of reasons why I consider that the situation which faces the court here is exceptional and why the discretion to try the four accused in their absence should be exercised.
[46] The first is that all four accused were well aware of the 4 April 2005 start date. They have, for whatever reason, absented themselves in the full knowledge of that date. There has been no attempt by any of them to inform either the court or their counsel as to why they are absent.
[47] The second is that clearly the four accused are in receipt of legal aid and have competent counsel assigned to them who, provided I so direct, are in a position to represent the defence of those three during the trial.
[48] In terms of Mr Reyland, it is significant, in my judgment, that when he appeared before me at the callover (supra) on 17 December 2004, he unequivocally told me that he had approached counsel; that he would be retaining counsel; but he declined to supply that counsel’s name. It is clear from the callover Minutes of both me and Randerson J that the importance of retaining counsel was stressed on a number of occasions to Mr Reyland and he was told in no uncertain terms that his failure to secure representation would not, in itself, constitute a ground for an adjournment. No court can compel an accused to retain counsel, desirable though that may be. I have no hesitation in inferring that Mr Reyland has decided not to retain counsel. Similarly, he has failed to appear.
[49] His absence, of course, imposes on me as trial Judge an obligation (if he were here) to ensure that matters favourable to his defence and position are not overlooked. That I would have had to do if he was present in any event. I can also do it when he is not here.
[50] I turn now to factors relevant to this trial. It is a long trial (twelve to sixteen weeks). It involves many accused. As is already apparent from my narration, there would be huge logistic difficulty first in being able to re-schedule this trial (for either thirteen or nine accused). By way of example, 2000 jurors, so I am told, were summoned to obtain a jury panel of necessary size. The scheduling of this trial has
required considerable effort and planning on the part of various List Judges. Delaying it further would compound many difficulties. Those administrative factors, of course, are by no means of decisive. The interests of justice must always be paramount. They are, however, matters which I consider relevant to the exercise of my discretion.
[51] It is also clear that to try nine accused in one trial and the four absconders in another trial would add dramatically to the amount of court time involved, and resources. The nine accused who have appeared, and their counsel, are well aware of the strength and thrust of the Crown case against them. To require the Crown to have to re-jig its case to try the nine alone would be unfair to those accused, difficult, and impose further delay on all.
[52] I am also mindful of the fact that all accused have been awaiting their trial for approximately 21 months and that the 4 April date was identified some ten months ago.
[53] I also consider there are sound policy reasons as to why a trial of this sort should not be disrupted or thwarted by the decision of an accused to absent him or herself. Since Parliament classified methamphetamine as a Class A drug, coupled with a discernible police operational priority in detecting methamphetamine offending, the High Court has been confronted by a growing number of long-running methamphetamine related trials, many of which involve multiple accused. Huge planning and preparation is required for this. I have already referred to the size of the jury panel. Counsel need to devote days and days to preparation. Many witnesses are involved (in this case the Crown intends to call 146 witnesses). There is also, in many cases, expert evidence from ESR analysts.
[54] It is unusual (unless other offending in the relevant time period is involved) for accused in this situation to be remanded in custody pending trial. In this particular case, assuming that a large drug trial of this nature would require the best part of an eighteen month pre-trial phase, a remand period of imprisonment of that period would, in terms of the Parole Act, be tantamount to a sentence of four and a
half years. Time periods of this sort are highly relevant considerations under s8 of the Bail Act 2000.
[55] In my judgment, in addition to the matters specified in the R v Jones appendix, and weighing additional matters of the interests of the attending accused, the court is entitled to throw on to the scales the desirablity of sending a firm message to alleged drug offenders in particular, and to the public at large, that the High Court will not tolerate (unless there is some good reason) accused disrupting trials by not attending and thereby forcing an adjournment. It is not fantasy on my part to hypothesise the situation (although there is no suggestion that the attending accused fall into this category) whereby a number of accused (say eight to ten) jointly facing charges, could devise a plan of rolling absconding, thus delaying a trial indefinitely if the court were to prepared to countenance the situation that every absconding accused would be entitled to force the court to adjourn the trial to another date.
[56] Weighing all these matters together, and in particular having regard to the fact that three of the four absconding accused will be represented by counsel, (Mr Reyland, by his conduct has evidenced a clear intention not to retain counsel in any event), the disruptive effect on the court and on other accused by the four accused’s failure to appear; the clear knowledge of the four of a start date; the lengthy adjournment which would follow if the trial was adjourned, coupled with further disruption if the trial of these four was severed; the absence of any prejudice or injustice to the attending accused; the seriousness of the offending and the general public interest, particularly as I have articulated in terms of large and resource demanding methamphetamine trials, I consider that the trial against the four accused Mr McFall, Mrs McFall, Mr Reyland and Ms Grace should continue in their absence.
[57] Of course, when they are apprehended, they can join in the trial in the normal way.
[58]Accordingly, the Crown’s application is granted.
Other matters
[59] When the attending accused are arraigned tomorrow morning before the jury is empanelled, I shall direct the Registrar (assuming the absconding still persists) to enter not guilty pleas in respect of the counts levelled against the four accused.
[60] I note the applications, properly brought, by counsel Messrs White, Koya and Barnsdale that, in the absence of their clients, they having been retained by the Legal Services Agency, they seek leave to withdraw. I also note Mr Barnsdale’s formal objection that the trial should proceed against Ms Grace in her absence.
[61] I do not consider that the interests of justice would be served generally, nor do I consider that the specific interests of the three absconding accused would be assisted by allowing their counsel to withdraw. There is no suggestion (and indeed no possible justification in the circumstances of this case) for the Legal Services Agency to withdraw the briefs of the three counsel concerned. They need to be present for the trial. I accordingly decline their applications to withdraw and direct that all three counsel are to represent the interests of the three assigned accused throughout the ensuing trial.
[62] Clearly the three counsel retained by the Legal Services Agency whose clients have absconded, will have to implement whatever instructions they may have to date received. Clearly, too, they are under an over-riding obligation both to their clients and to the court to represent the interests of those three accused to the best of their ability.
Priestley J
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