R v S HC Auckland CRI 2006-090-10370

[2008] NZHC 914

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-090-10370

THE QUEEN

v

S

Hearing:         9, 10, 11, 12, 13, 16 June 2008

Counsel:         N E Walker for Crown

P J Kaye for Accused

Judgment:      16 June 2008

(ORAL) RULING OF HEATH J

Solicitors:

Crown Solicitor, Auckland
Counsel:

P J Kaye, Auckland

R V S HC AK CRI 2006-090-10370  16 June 2008

[1]      Counsel for the accused closed the defence case last Friday, 13 June 2008.

[2]      This morning we were to embark upon closing addresses followed by my summing up.  My intention was that the jury retire deliberate this afternoon.  Court was convened at 9.15am this morning to deal with procedural issues.

[3]      Mr Kaye, on instructions from Mr S  , has made an application for leave to reopen the defence case so that Mr S   can give evidence about correspondence with WINZ and the  Inland Revenue Department concerning the allegations against Ms Starkey and Fang Deng, to which reference is made in the correspondence on which the Crown relies to establish the crime of blackmail in counts 3 and 4 of the indictment.

[4]      Section 98 of the Evidence Act 2006 enables me to grant permission for an accused to call further evidence if the interests of justice require the further evidence to be admitted: s 98(4).  That permission may be granted at any time until the jury retires to consider its verdict: s 98(5)(a).

[5]      The correspondence, which I have seen, demonstrates that in the period after the alleged blackmail letters were forwarded to Ms S   and Fang Deng.  Mr S   pursued the allegations with the appropriate government departments.

[6]      However, the essence of the crime of blackmail focuses on the oral or written threat to disclose something about the complainant with the dual intention of causing the complainant to act in accordance with the accused’s will and to obtain a benefit for the accused.  Those issues are all assessed by reference to the conduct at the time the communication is made.

[7]      In addition, in respect of the defence created by s 237(2) of the Crimes Act

1961, the focus is on the belief of the accused at the time the alleged threats were made and the need for the threat to be made is a reasonable and proper means to obtain the benefit sought.   Again, that focuses on the particular time at which the alleged threat is made.

[8]      In my view, what has happened since that time in relation to the making of the  complaint  is  irrelevant  to  the  issues  the  jury  need  to  consider.  I  decline

permission for the additional evidence to be called.

P R Heath J