R v McGuire HC Hamilton CRI 2006-019-617

[2007] NZHC 1891

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-019-617

QUEEN

v

ROBERT WILLIAM MCGUIRE, TANE KYLE DOUGLAS GIBBONS, KAIYA IAN GENE GIBBONS, TRISTRAM JARRED TAKA AND NICOL JOY STEPHENS

Hearing:         21 June 2007

(Heard at Hamilton)

Appearances: P Crayton for Crown

R Laybourn for R McGuire

W Pyke for T Gibbons

G Boot for K Gibbons

M Robb for T Taka

T Sutcliffe and L Walkington for N Stephens

Judgment:      21 June 2007

RULING (NO. 2) OF ASHER J

R V MCGUIRE & ORS HC HAM CRI 2006-019-617  21 June 2007

[1]      In the course of questioning Constable Baker, Mr Laybourn, who appears for

Mr McGuire, asked him this series of questions:

And you observed Tane Gibbons also in the kitchen area of the house ?….. Correct, Sgnt Smith had a hold of Tane.

Because the purpose of being there was pursuing a search warrant following up a burglary inquiry wasn’t it ?…..  that’s correct, yes.

[2]      Mr Pyke, who is counsel for Tane Gibbons, objected to that last question.  He submitted that there was no evidence before the Court that the inquiry was a burglary inquiry, and that this prejudicial information relating to Tane Gibbons should not be before the Court.

[3]      There  has  already  been  evidence  before  the  Court  adduced  by Mr Boot, counsel for Mr Kaiya Gibbons, that the Police initially went to the property pursuant to a warrant which related to “stolen property” (Notes of evidence: p 34/lines 10-15), and then again in a question by Mr Boot (Notes of evidence: p 39/lines 2-10) that there was on the site a large number of used car parts which were of interest to the Police because they were stolen.  That evidence was adduced without objection from any counsel.

[4]      I intend directing the jury that any evidence as to the reason for the execution of the search warrant or the presence of possible stolen property is entirely irrelevant to the task that they have to carry out.  I will direct them to put it entirely to one side in their deliberations, and to not regard it as implicating any particular accused with anything of any relevance to the counts before the Court.

[5]      However, the evidence has already been adduced as to the nature of the warrant.  And to an extent, the background as to why the initial search took place does set the scene and explain the arrival of the Police and avoids any implication that their arrival was because of any drug related matter.   The information being before the Court, it is legitimate for Mr Laybourn, or any other counsel who wishes to make the point, to make it clear that his client was not named in the warrant or its background documents.  Mr Pyke, having made the objection, I think it fair to limit

all references to the warrant as much as possible, but to allow counsel to disassociate their client from it.

[6]      The question is already recorded and has been heard by the jury, as has the answer confirming that the Police were there pursuing a search warrant following up a burglary inquiry.  There is no point at this stage in requiring it to be reworded as the answer has been given and heard by the jury.  As I have said, I will be giving a warning to the jury about placing any weight on the search warrant.   However, I direct  Mr Laybourn  and  any  other  counsel  to  limit  any  further  questions  to disassociating their particular client from the search warrant or inquiry.  Therefore, the next question asked should go no further than being along these lines: “Was Robert McGuire mentioned in the search warrant documents?”

[7]      Mr Laybourn and other counsel whose clients are not involved in relation to the search warrant, do not seek to take this line of questioning any further, and have not contested the limitation I have imposed.  However, I have set it out in detail to avoid any misunderstanding or departure from the very specific point that can be raised.

………………….

Asher J