R v Scott - [2020] NZHC 1149

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-070-004480

[2020] NZHC 1149

THE QUEEN

v

MATTHEW JOHN SCOTT MARIO HABULIN

BENJAMIN JOHN NORTHWAY DENI CAVALLO

On the papers: At Auckland

Appearances:

A Pollett and O M Salt for the Crown R Mansfield for Mr Scott

M McCarty for Mr Habulin B Hesketh for Mr Northway M Pecotic for Mr Cavallo

Judgment:

28 May 2020

JUDGMENT OF POWELL J

[Miscellaneous issues]

This judgment was delivered by me on 28 May 2020 at 3.30 pm Registrar/Deputy Registrar
Date:

R v SCOTT & Ors (Miscellaneous issues) [2020] NZHC 1149 [28 May 2020]

[1] At the conclusion of the sentencing of the defendants on 4 February 2020 it was noted that there were issues regarding forfeiture of property that would have to be addressed following filing of memoranda by the parties. In addition, it was noted dismissal of the remaining charges against the defendants had been overlooked at the hearing, and subsequently a further issue has arisen with regard to access to the Court file. These matters are all addressed in this judgment.

[2] Unfortunately circumstances and some communication issues have meant that this judgment has been delayed.

Forfeiture

[3] After each entering guilty pleas, on 4 February 2020 I sentenced the defendants in respect of a range of charges relating to the importation of cocaine to which they had pleaded guilty.1 In connection with this offending and pursuant to s 32(1) of the Misuse of Drugs Act 1975, the Crown initially sought forfeiture of some 54 items – as set out in a table annexed to the Memorandum of Crown Counsel dated 3 February 2020 (“the table”) – seized by the Police in the course of their investigation.

[4] The defendants largely agreed with the items sought to be forfeited, however, each of the defendants sought the return of two personal items on the basis they were only used for personal matters and were not used for any criminal activity. In particular:

(a)Mr Scott sought the return of items numbered 20005 and 20008, being a black iPhone, a charger and three cables.

(b)Mr Habulin sought the return of items numbered 10003 and 10010, being a black iPhone and a black Samsung tablet.

(c)Mr Cavallo sought the return of items numbered 10002 and 10003, being a white and pink iPhone and a white and silver iPhone.

1 R v Scott [2020] NZHC 68.

(d)Mr Northway sought the return of items numbered 20001 and 30065, being a black iPhone and a Samsung mobile phone.

[5] The Crown has subsequently advised that it is no longer seeking forfeiture orders in respect of the items outlined at [24](a) – (d), and that it had arranged for the return of said items.

Discussion

[6]The relevant parts of s 32 of the Misuse of Drugs Act 1975 provide:

(1)Every person convicted of an offence against this Act shall, in addition to any penalty imposed pursuant to this Act,…

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 Scott

Details

AGLC: R v Scott [2020] NZHC 1149
Case: [2020] NZHC 1149
Decision Date: 28 May 2020

CaseChat Overview and Summary

The case of R v Scott and others involved four defendants, Matthew John Scott, Mario Habulin, Benjamin John Northway, and Deni Cavallo, who were convicted of various charges related to the importation of cocaine. The High Court of New Zealand, Tauranga Registry, addressed several issues following the sentencing of the defendants. These issues included the forfeiture of property seized by the police, the dismissal of remaining charges, and access to court documents by the media. The court addressed the forfeiture of property pursuant to section 32 of the Misuse of Drugs Act 1975. The Crown had initially sought the forfeiture of 54 items, but the defendants sought the return of certain personal items on the basis that they were used for personal matters and not for criminal activity. The Crown subsequently agreed to return the specified items, and the court granted the forfeiture of the remaining items.

The court also addressed the dismissal of the remaining charges against the defendants. It was noted that the remaining charges should have been withdrawn at sentencing, but this was overlooked. The Crown filed a memorandum indicating that it would offer no evidence in relation to these charges, and they should be dismissed pursuant to section 147 of the Criminal Procedure Act 2011. The court granted the dismissal of the specified charges against each defendant.

Lastly, the court considered the issue of access to court documents by Ben Bathgate of Stuff News. Bathgate sought access to a report from an agent of the US Drug Enforcement Agency and a waste water analysis report pursuant to the Senior Courts (Access to Court Documents) Rules 2017. Although Ms. McCarty, on behalf of Mr. Habulin, opposed the access on the basis of prior inaccuracies in Bathgate's reports, the court granted access to the requested documents, considering the principle of open justice and the public interest in the documents. The court also noted that access to the documents would not compromise the defendants' confidentiality and privacy interests.

In summary, the High Court of New Zealand, Tauranga Registry, granted the forfeiture of most items seized by the police, dismissed the remaining charges against the defendants, and granted access to certain court documents requested by the media.

Orders