R v S HC Hamilton CRI 2006-019-6530
[2008] NZHC 1730
•10 November 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-019-6530
THE QUEEN
v
S
H
Hearing: 28 October 2008
Appearances: R Douch and L Dunn for the Crown
B Hart for accused S
D Gardiner for accused H
P F Gorringe as Amicus
Judgment: 10 November 2008
REASONS JUDGMENT OF PRIESTLEY J (On refusing adjournment application)
This judgment was delivered by me on 10 November 2008 at 10.00 am pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date: …………………………
Counsel:
R Douch, Crown Solicitors, Almao Douch,P O Box 19173, Hamilton 2001. Email: [email protected]
B J Hart, P O Box 47016, Ponsonby, Auckland 1001. Email: [email protected]
DRF Gardiner, P O Box 47016, Ponsonby, Auckland 1001. Email: [email protected]. P F Gorringe, P O Box 7098, Hamilton 2001. Email: [email protected]
Copy to:
D H H . 121 Horsham Downs Road, RD 1, Hamilton 3281. Fax: 07 855 0036
R V S AND ANOR HC HAM CRI 2006-019-6530 10 November 2008
Introduction
[1] On 28 October 2008, the first day of a scheduled three week trial, I gave brief reasons, which are contained in my 28 October minute, why I was dismissing two adjournment applications. With the consent of all counsel expanded reasons were to appear in a reserved decision at a later date. What follows are my full reasons.
Request to Hear Applications
[2] The trial should have begun with arraignment and the empanelment of the jury at 10 am on 28 October. Both accused faced an indictment of two counts laid in the alternative. The more serious count was one of kidnapping laid under s 209(b) of the Crimes Act 1961. The alternative count was one of abduction of a child laid under s 210(1).
[3] A co-accused Ms N Taylor pleaded guilty on arraignment before Lang J the previous Friday, 24 October. By arrangement with the Crown her plea was accepted on the lesser s 210 count. I had been advised by the Registrar that the Crown intended to present a one count indictment (s 210) in respect of both accused.
[4] At approximately 9.40 am the Court-taker advised me that counsel were discussing possible outcomes to the trial and needed more time. A jury panel of approximately 50 people had been pre-balloted. They were not in the courtroom. I readily agreed to delaying the start of the trial so that counsel could confer.
[5] At 10.20 am counsel asked to see me in Court for chambers. The Crown Prosecutor indicated to me that it would be helpful if I were to deal with the two pending adjournment applications (one by each accused). All counsel agreed with this course of action. I then excused the jury panel until 2.15 pm and heard argument.
[6] At 12.45 pm I returned to court and gave my brief reasons, recorded in the minute. At 2.15pm I was again informed that counsel wanted more time.
[7] I returned to court at 3 pm. Counsel informed me they wished to continue discussions and in particular Mr H wished to consider his position and possibly take further legal advice overnight. Given the time of day I agreed with counsel’s proposals that the trial resume at 9.30 am the next morning (29 October) with a possible jury empanelment then.
[8] When the trial resumed the next day (29 October) both accused pleaded guilty on arraignment. The circumstances surrounding those pleas are recorded in my 29 October minute.
Mrs S ’s Adjournment Application
[9] Mr Duff presented a tight and carefully considered argument in support of Mrs S ’s application to adjourn the trial. It had two limbs. The first was a pending application to the Supreme Court. The second limb was based on Ms Taylor’s (the former co-accused) status as a potential witness for the defence.
Outstanding leave application
[10] On 9 July 2008 I delivered a reserved judgment ruling that the venue of the trial would be Hamilton. My judgment effectively dismissed an application by Mrs S , under s 322(1) of the Crimes Act 1961, for the trial to take place in some other High Court centre.
[11] Mrs S challenged my judgment on appeal. On 22 September 2008 the
Court of Appeal dismissed the appeal.
[12] Undeterred, approximately a fortnight before the trial, Mrs S sought leave to appeal the Court of Appeal’s judgment and my own judgment to the Supreme Court. The threshold for obtaining leave is set out in s 13 of the Supreme Court Act 2003 which relevantly provides:
13 Criteria for leave to appeal
(1) The Supreme Court must not give leave to appeal to it unless it is satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal.
(2) It is necessary in the interests of justice for the Supreme Court to hear and determine a proposed appeal if—
(a) the appeal involves a matter of general or public importance;
or
(b)a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or
(c) the appeal involves a matter of general commercial significance.
…
[13] The Supreme Court, so counsel informed me, had already indicated that it had jurisdiction to entertain a leave application on the issue of a trial’s venue. There can be no dispute over this. The effect of s 8 of the Crimes Amendment Act (No.2)
2008, inserting s 379AB(1) puts jurisdiction beyond doubt.
[14] Mr Duff accepted the Supreme Court had yet to determine the leave application. Nonetheless he submitted Mrs S ’s trial should not proceed until the outcome of that application was known. Mr Duff further submitted that the effect of s 379A(6), which provides:
(6)Notwithstanding that an application for leave to appeal under subsection (1)(aa) of this section has been made, the Court may, if it is satisfied that it is in the interests of justice to do so, proceed with the trial without awaiting the determination of the application.
was to place a significant fetter on this Court’s discretion to refuse an adjournment application pending the outcome of the leave application.
[15] The reference in 379A(6) to s 379A(1)(aa) is significant. The latter provision relates to s 344A applications. The accused’s original application for a change of venue was not, of course, a s 344A application. Nonetheless counsel suggested it should be treated analogously.
[16] Mr Duff referred to R v Leonard [2008] 2 NZLR 218 in which the Court of
Appeal made this obiter comment:
[24] In our view s 379A(6) may have been unnecessary, as trial courts may well have inherent jurisdiction or inherent power to proceed with a trial if the interests of justice so require, without an application for leave being determined. This would apply to any pretrial matter covered by s 379A and not only in situations where s 379A(6) applies. Even were that not the case, in our view s 379A(6) should not prevent this Court from taking into account any unnecessary delay in the trial as a factor that weighs against leave being granted in all cases (see para [14](f)). This is particularly the case if there has been delay on the part of the applicant for leave. For the avoidance of doubt, nothing said here is intended to discourage trial judges from proceeding in trials where empowered to do so under s 379A(6), despite an application for leave to appeal not having been determined.
The dictum is double-edged as Mr Duff accepted. It supports his proposition that perhaps the provision would extend to any pretrial matters. Nonetheless there is a strong statement that s 379A(6) should not deter trial judges from proceeding with a trial merely because there is an extant leave application.
[17] Mr Duff’s final argument on this limb was to draw a possible distinction between the High Court’s inherent jurisdiction and its inherent power. Department of Social Welfare v Stewart [1990] 1 NZLR 697) In counsel’s submission, even if I decided I did have inherent power to proceed with the trial, it would be preferable if I allowed the adjournment, despite the Court of Appeal’s dictum in Leonard. The extent of this Court’s power was not clear. The matter was best left for an appellate court to decide.
[18] Finally, in oral submissions, Mr Duff in dialogue with the Bench, raised the issue of Austin, Nichols & Co Inc v Stichting Lodestar [2006] 2 NZLR 141. In essence, even though s 322 conferred a discretion to fix trial venues against the broad test of “expedient for the ends of justice” and even though, as here, the Court of Appeal had held not only that I have not exercised my discretion wrongly but indeed correctly, it might still be open to the Supreme Court to exercise its collective discretion a different way were the majority to decide both the Court of Appeal and I were plainly wrong.
[19] Despite these intricate and well constructed submissions I had no difficulty refusing the adjournment application on that limb. Whether or not the Supreme
Court grants leave is entirely a matter for it. However, the filter of s 13 of the Supreme Court Act is a relevant factor. The principles governing change of venue applications are clear, well established, and unremarkable. The Court of Appeal recently examined them in R v Foreman [2008] NZCA 55. In my judgment, there being no obvious matter of principle or indeed public importance arising out of the facts of this case (which I had accepted were unusual (see [46] – [48] of my 9 July
2008 judgment), it was improbable that the Supreme Court would grant leave. Nor, given the clear view expressed by the Court of Appeal in Leonard (supra [15]) am I attracted by the proposition that a leave application two steps up the judicial hierarchy should fetter a trial judge’s discretion on a trial adjournment application.
[20] The alleged offending here took place over two years ago. The delays, for which no blame is attributable other than on the system, have been considerable. The alleged offending focuses on and requires Crown evidence from an eight year old boy. And finally, in the event of the trial proceeding and the Supreme Court then granting leave and reversing the Court of Appeal, the outcome, were Mrs S to be convicted, there would inevitably be a direction for a new trial. These are all strong reasons for proceeding with the trial as scheduled.
[21] Thus the adjournment application was refused on that ground.
[22] (In the wake of Mrs S entering a guilty plea to the s 210 charge she faced on 29 October the Supreme Court, in a prompt one paragraph decision released on 30 October, dismissed the leave application on the grounds Mrs S ’s guilty plea rendered the whole issue moot.)
Ms Taylor as a potential witness
[23] Section 73 of the Evidence Act 2006 provides:
73Compellability of defendants and associated defendants in criminal proceedings
(1) A defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding.
(2) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding unless—
(a) the associated defendant is being tried separately from the defendant; or
(b)the proceeding against the associated defendant has been determined.
(3) A proceeding has been determined for the purposes of subsection (2)
if—
(a)the proceeding has been stayed or, in a summary proceeding, the information against the associated defendant has been withdrawn or dismissed; or
(b) the associated defendant has been acquitted of the offence;
or
(c)the associated defendant, having pleaded guilty to, or having been found guilty of, the offence, has been sentenced or otherwise dealt with for that offence.
[24] This codification sets out the well known principle that a co-accused is not a compellable witness at an accused’s trial. Until Ms Taylor is sentenced (and on her arraignment Lang J set a provisional sentencing date of 2 December 2008) she was not compellable. In terms of ss73(2)(b) and 73(3)(c) until Ms Taylor has been sentenced the criminal proceeding against her has not been “determined”. Her counsel, Mr Pyke, had made it abundantly clear to Mrs S ’s counsel that Ms Taylor was not prepared to consent to giving evidence.
[25] Thus, submitted counsel, there was a degree of prejudice to Mrs S who wanted to brief Ms Taylor’s eidence. Counsel was, understandably perhaps, not particularly forthcoming as to why Ms Taylor’s evidence would be helpful to Mrs S at trial. Defence counsel are under no obligation to signal in advance that there will be defence evidence let alone what the nature of the defence might be. It was hinted that her evidence might perhaps be corroborative of a possible defence available to Ms Taylor. It was her bona fide belief that she had an entitlement to possession of the child in terms of s 210A.
[26] Ms Taylor’s involvement, on the available evidence of the Crown, was to enter the Hamilton Public Library on 18 August 2006 and persuade the child, who knew her, to leave the library in her company. She delivered the child to his
mother’s car outside. Her involvement in the offending was limited to a few minutes although there clearly would have been some pre-planning.
[27] With respect, I see this ground for an adjournment as being somewhat opportunistic. At the telephone conference on 14 October 2008 at which Mr Pyke signalled his client was to be arraigned and would plead guilty to the s 210 charge, Mrs S ’s counsel was largely concerned to find out whether Ms Taylor would be giving evidence for the Crown. He was assured by both Mr Pyke and the Crown Prosecutor that she would not.
[28] In the absence of any specific detail as to what helpful evidence Ms Taylor might have, I am attracted by Mr Douch’s submission that the defence interest in Ms Taylor is akin to a fishing expedition. Even if Ms Taylor was in a position to give evidence about Mrs S ’s beliefs at the time, (and it would be difficult to see how the accused had a bona fide belief that she was entitled to possession of her son in the circumstances given her involvement in Family Court proceedings and knowledge of relevant Family Court orders), the admissibility of such evidence might depend on whether or not Mrs S herself gave evidence in her defence. There would additionally be the risks of Ms Taylor strengthening the Crown case against both accused during cross-examination. Mr H ’s position would need consideration. His counsel, exemplifying the degree of co-operation both accused have exhibited throughout, did not make submissions on this aspect.
[29] Were Ms Taylor to have pleaded guilty on the morning of the trial or at any time after the trial got underway it would, in my judgment be fanciful to suggest that the trial should be aborted for the reasons advanced in support of the adjournment application.
[30] For these reasons I ruled that the s 73 ground was not a valid ground for an adjournment but indicated the issue could possibly be revisited during the trial if some sounder basis could be advanced.
Adjournment Application by Mr H
[31] Mr H , although unrepresented, had been able to file supporting affidavits and memoranda. These, in my judgment, had been prepared by an unacknowledged lawyer. There were a number of threads to Mr H ’s argument. His perceived dilemma was that because he had been unable to obtain a grant of legal aid, he was unrepresented by counsel.
[32] In terms of an analysis and with particular reference to the Supreme Court’s judgment in R v Condon [2007] 1 NZLR 300, I classified Mr H at the outset of the trial as being a self-represented accused who was unwillingly representing himself. Nonetheless an amicus had been appointed by me in early September, Mr Gorringe, to generally protect Mr H ’s position, give advice if sought, and to represent Mr H ’s interests at trial.
[33] It is unnecessary for me to go into the detail of the various matters contained in Mr H ’s affidavits and memoranda all of which were touched on in a global way by Mr Gardiner. Salient features are:
• Mr H , now aged 70, has longstanding health issues including a cardiac condition. On the basis of somewhat brief and nearly identical medical certificates he should not be subjected to the stress of representing himself at trial.
• Although since May 2008 Mr H has made efforts to retain counsel his apparent inability to persuade the Legal Services Board that he was entitled to a grant of legal aid has prevented him from securing counsel.
• A Mr Hirschfeld of the Auckland Bar, who on 28 October was still involved in a long-running drug trial in the High Court at Auckland before Winkelmann J, had expressed an interest (and indeed had filed a short memorandum to assist the court) in representing Mr H provided legal aid could be secured.
• Mr H , probably in conjunction with Mr Hirschfeld, had lodged an appeal under the Legal Services Act 2000 in the High Court at Hamilton which has its first mention in the chambers list on 5 November.
• Some six weeks after I had appointed Mr Gorringe as amicus on 2
September 2008 (seeing precisely the nature of the difficulties towards which Mr H was then heading and being determined to ensure that his inability to secure counsel did not ipso facto prejudice the start of the trial) Mr H raised various objections about Mr Gorringe’s role as amicus, such objections in the main being based on an alleged conflict of interest during a brief phase where Mr Gorringe was briefed by a Hamilton firm to give Mr H some advice on an unspecified topic relating to this trial.
[34] Mr Gorringe had already been appointed as amicus in a limited capacity by Cooper J to appear on 29 August 2008 on Mr H ’s then unresolved application for a stay and change of venue.
[35] Up to May 2008 Mr H had been represented by a variety of counsel, including Mr Hart and Mr Gardiner (both are appearing for his daughter Mrs S ), Mr Tait, and Mr R Laybourn.
[36] It is clear law in a criminal trial that a presiding judge is under an obligation to ensure that an unrepresented accused is given explanations and appropriate assistance by the judge. It is also clear from R v Condon that the primary interest so far as an unrepresented accused is concerned is to ensure the trial will be fair.
[37] Whether or not a trial involving a self-represented accused is fair is largely a matter for an appellate court to determine after the event. There is no proposition of law, however, to the effect that a trial involving an unrepresented accused will necessarily be unfair or indeed is deemed to be unfair from the outset.
[38] Clearly it would be desirable for Mr H to have representation. During the hearing I provided counsel with details of the many conferences between 24
April 2007 and October 2008 which Mr H had attended either represented or unrepresented. For more than six months it had been stressed to him on occasions by me (which Mr H always accepted), that it was desirable he retain counsel and that his inability to do so was not to be regarded as an excuse for the trial to be further delayed.
[39] In a situatuion where, for whatever reason, Mr H has been unable to obtain a grant of legal aid, I am satisfied that his fundamental entitlement to a fair trial can be preserved by a combination of both my oversight as presiding Judge and by the role of Mr Gorringe as court appointed amicus. Mr Gorringe is a senior and experienced counsel. He has prepared himself for the trial. Unlike Mr H he sees no possible conflict of interest. In any event, Mr Gorringe’s ultimate responsibilities are not to Mr H but to the Court.
[40] For these reasons I declined to grant Mr H ’s application to adjourn the trial.
Additional Comment
[41] After the accused had been arraigned, pleaded guilty and the sentencing dates fixed I saw counsel briefly in chambers to ascertain whether, in the light of the pleas, there was any point in my delivering full reasons expanding the brief reasons contained in my 28 October 2008 minute.
[42] The Crown saw a reserved reasons judgment as serving no useful purpose. Mr Hart for his part felt that such reasons might be useful.
[43] I think it is a fair inference that a combination of the matters contained in my
29 October minute and the earlier appreciation, as a result of my declining the adjournment applications on 28 October, that a delay of the start of the trial was no longer a prospect, brought both accused to the realisation that the nettle of pleas had to be grasped.
[44] I make it abundantly clear, although it should really be self-evident, that the prospect of the accused changing their pleas to guilty was not a factor I weighed when declining their adjournment applications. Such a consideration would be totally irrelevant.
[45] Although, after the event, it might be apparent that the decline of the adjournment applications was a factor which led to the 29 October pleas I am totally satisfied that both accused entered those pleas in full knowledge of the consequences and on the basis of considered and sensible legal advice.
[46] The Crown case, as I commented in open court on arraignment, was overwhelming. Given the factual matrix extending over a lengthy period of time there was no discernible defence other than putting the Crown to the proof.
..........................................… Priestley J
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