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, forfeit to Her Majesty, by virtue of such conviction, all articles, if any, in respect of which the offence was committed and in the possession of such person.

(2)Articles forfeited under the provisions of subsection (1) shall be sold, destroyed, or otherwise disposed of as the Minister directs.

[7]    Pursuant to this section liability to forfeiture arises on conviction; in this case arising after each of the defendants pleaded guilty to and were convicted of the various charges they faced. In the absence of any opposition I am satisfied that each of the remaining 46 items fall within the parameters of s 32(1), being “articles … in respect of which the offence was committed”.

[8]    Accordingly, forfeiture of the items specified in the table, with the exception of those set out at [4](a) – (d), above is therefore granted.

Dismissal of the remaining charges

[9]    Following the arraignment of Mr Scott and Mr Northway on 24 June 2019, and subsequently Mr Habulin and Mr Cavallo on 27 June 2019, it was agreed that the remaining charges would be withdrawn at sentencing.

[10]   At the sentencing of the four defendants on 4 February 2020 this issue was overlooked, and on 5 February 2020 the High Court Registry enquired with the Crown as to what action should be taken. In response, on 17 February 2020, the Crown filed a memorandum indicating that it would be offering no evidence in relation to these

charges and that they should be dismissed pursuant to s 147 of the Criminal Procedure Act 2011.

[11]   Given this position the following charges are formally dismissed pursuant to s 147 of the Criminal Procedure Act 2011:

(a)Deni CAVALLO:  CRN 17004016711 to 6713

CRN 18063501213

CRN 18063501217

(b)Mario HABULIN:                 CRN 17114016546 to 6547

CRN 17004016698 to 6701

CRN 17070005933 to 5934

CRN 17070006488

CRN 18063501211

CRN 18063501215

CRN 19063500840 to 0843

(c)Benjamin NORTHWAY:           CRN 17004016716

CRN 17004017285

CRN 17070005911 to 5913

CRN 17070005916

CRN 18063501212

CRN 18063501216

(d)Matthew SCOTT:                   CRN  17004016530 CRN 17004016535 to 36 CRN  17004016538 CRN  17004016693 CRN 17070005923

Access to documents

[12]   Ben Bathgate of Stuff News seeks access to a report from Louis D’Ambrosio an agent of the US Drug Enforcement Agency as well as a waste water analysis report, pursuant to the Senior Courts (Access to Court Documents) Rules 2017. Both reports would have been used at trial. Mr Bathgate is not entitled to access to these documents as of right, rather r 11 provides that access may be requested and this Court is to determine whether access should be granted pursuant to rr 12 and 13.

[13]   Access to these documents is unopposed, with the exception of Ms McCarty on behalf of Mr Habulin. Ms McCarty opposes access on the basis that Mr Bathgate’s prior reports concerning Mr Habulin have contained “gross inaccuracies” and as a result she is concerned about Mr Bathgate’s “ability to use these documents for the stated purpose” of “providing accurate information to a case of significant public interest”.

[14]   Although I understand Ms McCarty’s concerns, the documents  sought  by Mr Bathgate do not relate to Mr Habulin specifically and it would be difficult to see how access to these reports could result in further reporting of any sort with regard to Mr Habulin.

[15]   As a result and otherwise noting the lack of opposition from the remaining parties, the principle of open justice, the public interest in the documents and the fact that access to the said documents will not compromise the defendants’ confidentiality and privacy interests, access to the requested documents is granted.

Decision

[16]   In accordance with [8] above, the forfeiture orders sought by the Crown are granted in respect of the items listed in the table annexed to the Crown memorandum of 3 February 2020 with the exception of items 1000, 10002, 10003, 10010, 20001, 20005, 20008 and 30065 previously returned to the defendants.

[17]The charges set out at [11](a)-(d) are dismissed.

[18]   Mr  Bathgate  is  granted  access  as  sought   to   the   report   of   agent  Louis D’Ambrosio and the waste water analysis report.

Powell J