R v O'Carroll - [2015] NZHC 2152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-5509 [2015] NZHC 2152

THE QUEEN

v

DAVID GERRARD O'CARROLL TERRY JONES

Hearing: 1 and 2 September 2015

Appearances:

R M McCoubrey and K Eastwood for Crown
S J Bonnar QC and C S Fredric for D G O'Carroll
A J D Bamford for T Jones

Judgment:

4 September 2015

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 4 September 2015 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Meredith Connell, Crown Solicitor, Auckland
Bamford Law, Nelson

Counsel: S J Bonnar QC, Auckland
C S Fredric, Auckland

R V O’CARROLL [2015] NZHC 2152 [4 September 2015]

[1] The defendants in this matter, Mr O’Carroll and Mr Jones, are charged as part

of a wider police investigation known as Operation Genoa (the “Operation”).

[2] This judgment records my reasons for decisions made earlier this week in respect of two applications, the details of which are these.

[3] First, the Crown applied to adduce evidence of convictions of Ms Shannon Stevens and of Mr Michael Cavanagh, also charged as part of the Operation. I heard argument on this application on 1 September 2015 and on 2 September 2015 advised the parties that I would grant the application.

[4] Secondly, having informed the parties of my decision on the first application, I heard applications by Mr O’Carroll for discharge on charges 1 and 2 and by Mr Jones on charges 6 to 9 inclusive, pursuant to s 147 Criminal Procedure Act
2011. I discharged Mr O’Carroll on charge 1 and Mr Jones on charges 8 and 9.

Evidence of convictions

[5] The Crown applied to adduce evidence of:

(a) two convictions of Ms Stevens for manufacturing methamphetamine so as to establish against Mr O’Carroll that a manufacture of methamphetamine occurred on or about 9 March and 12 April 2014.

(b)two convictions of Mr Cavanagh, one for supply of ephedrine (a class B drug) and the other for supply of materials. The Crown sought to adduce this evidence as part of its case against Mr Jones. I need not say any more about this application as ultimately counsel resolved the matter between themselves.

[6] Mr O’Carroll (now) faces three charges of manufacturing methamphetamine, two with Ms Stevens and others on or about 12 March and 9 April 2014, and a third with Mr Nigel Bowker on or about 5 May 2014. Mr Bowker was also charged with various offences as part of the Operation.

[7] There is no dispute that a manufacture of methamphetamine took place in each of March and May 2014. The police found a “cook” in progress when they raided a property on the May date. As to March, the evidence includes photographs of Ms Stevens placing a chilli bin in a storage unit under her control on 12 March
2014, with a search shortly thereafter revealing that the bin contained a substantial quantity of methamphetamine.

[8]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Carroll

Details

AGLC: R v O'Carroll [2015] NZHC 2152
Case: [2015] NZHC 2152
Decision Date: 4 September 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the defendants David Gerrard O’Carroll and Terry Jones were part of a larger police investigation known as Operation Genoa. The court was presented with two main applications: the Crown's request to adduce evidence of convictions of two individuals, and the defendants' applications for discharge on specific charges. The Crown sought to present evidence of convictions of Ms. Shannon Stevens and Mr. Michael Cavanagh to support its case against the defendants. The court allowed the Crown to adduce evidence of Ms. Stevens' convictions for manufacturing methamphetamine, finding it admissible under the Evidence Act 2006, despite arguments regarding potential prejudice to the defendants.

The court then considered the defendants' applications for discharge under the Criminal Procedure Act 2011. David Gerrard O’Carroll sought discharge on charges 1 and 2, while Terry Jones sought discharge on charges 6 to 9. The court discharged O’Carroll on charge 1 due to insufficient evidence of manufacturing activity on the alleged date. However, the court denied discharge on charge 2, finding there was sufficient evidence to support a conviction. Jones was discharged on charges 8 and 9 as the court found no evidence that could reasonably lead a jury to convict him on these charges. The court found that while Jones was in possession of items relevant to other charges, there was no evidence linking him to the specific charges 6 and 7.

Orders