R v Plant

[2019] NZHC 593

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2016-009-005491

[2019] NZHC 593

THE QUEEN

v

KEVIN RILEY PLANT

Hearing:

22 March 2019

Appearances:

C J Boshier for the Crown

K J Beaton for the Defendant

Judgment:

27 March 2019

JUDGMENT OF NATION J

[1]    Mr Plant is scheduled to go to trial on 1 April 2019 on charges involving serious sexual and violence offending between 1 January 2000 and April 2014. The charges have been before the Court for a considerable time. For various reasons, a number of earlier scheduled trials have had to be put off. The last occasion was in December 2018.

[2]    In a minute of 12 December 2018, Mander J most reluctantly vacated a trial scheduled to begin on 11 February 2019. He did that on the basis the trial would take place on 1 April 2019.

[3]    On 21 March 2019, Ms Beaton, then counsel for Mr Plant, filed a memorandum seeking the leave of the Court to withdraw as counsel and submitted that, with her

R v PLANT [2019] NZHC 593 [27 March 2019]

withdrawal, there would have to be a further adjournment of the trial. The Crown acknowledged it was for the Court to decide whether leave should be given to withdraw as counsel but conveyed their concern at a potential further postponement of the trial.

[4]    Ms Boshier for the Crown and Ms Beaton appeared before me at a special hearing on 22 March 2019. Mr Plant was not present but Ms Beaton told me that she advised him of what she was doing. She said she had read to Mr Plant the memorandum she had submitted to the Court. He indicated he did not wish to be present but wished to be advised of the outcome.

[5]    During the hearing, Ms Boshier advised me of the distress and anxiety which the complainant witnesses are experiencing over the prospect of their giving evidence. For reasons that are understandable, counsel had not advised them of the possibility that there might again be a change in the trial date. I accept that a further change in the trial date would be most distressing to them.

[6]    Ms Boshier however accepted that this does not appear to be a case where the defendant is consciously choosing to make it difficult for his counsel to continue acting for him so as to delay the trial. She also accepts it is not a case where a defendant has sought to dismiss his counsel so as to delay a trial or otherwise interfere with the normal course of the proceedings.

[7]    In her memorandum, Ms Beaton said she is forced to withdraw as counsel “for ethical reasons”. She says she cannot provide the Court with any more information as to how those reasons have arisen. She assured the Court that she had not taken the decision to seek leave to withdraw lightly but she considered there was no alternative.

[8]    In a situation such as this, the Court has no alternative but to rely on the obligations which counsel has as an officer of the Court. When counsel agree to act for a defendant, they may face many challenges in doing so to the best of their ability and in the best interests of the defendant they are representing. That may well require a certain robustness which must, on occasions, be a burden for defence counsel. It is nevertheless a burden which counsel have to bear, but without compromising their

ethical responsibilities as a barrister and officer of the Court. I must thus accept Ms Beaton is no longer able to represent Mr Plant.

[9]I formally grant Ms Beaton leave to withdraw.

[10]   I did not however agree to vacate the trial when counsel appeared before me on 22 March 2019. Ms Beaton submitted an adjournment would be necessary due to the scope of the evidence that new counsel would have to be familiar with to properly represent Mr Plant at the forthcoming trial.

[11]   Ms Beaton also referred to difficulties Mr Plant faced through not having been able to listen to phone calls he had made from the prison. These phone calls had been recorded and were on a disc which had been provided to earlier counsel. I was referred to correspondence which indicated his earlier counsel had overlooked the fact that he had received this disc. It was not made available to Ms Beaton when she began acting for Mr Plant. I was told Mr Plant believes there are calls on the disc which would be of assistance to him in his defence. He has not had the means to listen to that disc with the technology available to him in prison.

[12]   I indicated that I would not have put off the trial by reason of that apparent difficulty. Mr Plant must have a general idea as to what he said in the conversations he considers are relevant and who they are with. Steps could have been taken to ensure he was able to play and listen to the discs on which the conversations are recorded. It is not suggested the Police failed to meet their obligations as far as disclosure was concerned.

[13]   During the hearing on 22 March 2019, Ms Beaton told me that Legal Aid had approved the appointment of a second defence counsel for the trial and Mr Anselm Williams had already been involved in some preparatory work for the trial. I indicated that Mr Williams might well be able to make a significant contribution to the proper administration of justice and ensure there can be a fair trial for the defendant by taking over the role as senior counsel in representing Mr Plant at trial on 1 April 2019. I expressed the hope that he would be able to do so, while appreciating that this would have required an intense commitment on his part.

[14]   On 25 March 2019, Mr Williams filed a memorandum as to his position. The Court was grateful that he has done so.

[15]   Mr Williams said that, following my request of him, he had spoken to Mr Plant, the Crown prosecutor and Ms Beaton, and had reviewed the file.

[16]   Mr Williams was able to advise the Court that Mr Plant wants to be represented by counsel, does not want to represent himself in these proceedings and that he would like Mr Williams to act as counsel for him. Mr Williams told Mr Plant that he would be willing to do so subject to his reviewing the file.

[17]   In his memorandum, Mr Williams said that, having reviewed the file, he remains willing to act as Mr Plant’s counsel but says he would not be able to meet his obligations to Mr Plant if the trial were to proceed on either 1 or 8 April 2019.

[18]   Amongst other matters, he referred to the fact the Crown case involves 47 charges relating to four complainants, and 11.5 hours of evidential interviews. There are some 2,800 pages of disclosure of records received from Oranga Tamariki and approximately 15 hours of prison telephone calls, only some of which have been transcribed.

[19]   Mr Williams advises that Ms Beaton obtained funding from Legal Aid for a private investigator to interview witnesses on behalf of Mr Plant but that funding was only approved on 21 March 2019. Those enquiries are still to be undertaken.

[20]   Although earlier trials have had to be vacated, this has not been because of any obstructive behaviour on the part of Mr Plant. Mr Plant’s wish was for Ms Beaton to continue as his counsel. He is not being obstructive in the way he has now agreed to Mr Williams acting for him.

[21]   As Ms Boshier properly acknowledged, to force Mr Plant to go to trial now, either without counsel or with counsel who was not adequately prepared, would create the risk of Mr Plant’s trial being unfair. If there were to be guilty verdicts, the

consequences of that could then be a successful appeal and a retrial at which the complainants would again have to give evidence.

[22]   Against that background, I have no alternative but to vacate the trial scheduled for 1 April 2019. Mr Plant is remanded in custody to appear again at Court at 9.15 am on 2 May 2019.

[23]   Before then, counsel are to liaise with the Court as to the dates on which they will be available for this trial to proceed during the balance of this year, at the earliest date possible. Mr Williams is also to confirm by that time that all matters are in hand as far as the defence are concerned and that he will be ready to represent Mr Plant at trial at the new scheduled date.

Solicitors:

Raymond Donnelly & Co., Christchurch Kerryn Keaton, Barrister, Christchurch AMS Williams, Barrister, Christchurch.