R v Shelford
[2021] NZHC 1054
•14 May 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-000042
[2021] NZHC 1054
THE QUEEN v
CHARVAE SHELFORD
Hearing: 5 May 2021 Appearances:
C J Boshier for Crown
E Huda and S Y Kim for Mr Shelford
Judgment:
14 May 2021
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 14 May 2021 at 4.00 pm
Registrar/Deputy Registrar Date:
R v SHELFORD [2021] NZHC 1054 [14 May 2021]
Introduction
[1] Mr Charvae Shelford is charged with murder (the charge) arising from an assault at the Mongols Motorcycle Gang gang pad on Main South Road, Burnham, south of Christchurch. Three other defendants are also charged with the murder. Mr Shelford was charged separately from the other defendants, and he entered a not guilty plea at second call of the matter on 4 February 2021 (second call).
Charges to be heard together
[2] At second call counsel for the Crown, Ms Boshier, notified the Court (the notification) that the Crown proposed the charge be heard with charges against the other defendants pursuant to s 138(1) of the Criminal Procedure Act 2011 (the Act). Neither Mr Shelford nor any of the other defendants opposed the charges being heard together.
[3] The Crown subsequently filed a formal written notice (the notice) of charges to be heard together on 25 March 2021 in an email to the Court at 5.21 pm. The notice was stamped as received by the Court on 26 March 2021. Therefore, the notice was filed before the Court adjourned the proceeding to trial callover that same day.
[4] Ms Boshier submits that, by virtue of s 138 of the Act, as notification was given before the proceedings were adjourned for trial leave of the Court was not required to have the charges heard together.
Withdrawal of the charge
[5] Ms Boshier submits that, as notification was properly given and therefore the charges were to be heard together, the Crown did not require the leave of the Court to withdraw the charge against Mr Shelford because of section 192(1) of the Act.
[6] Counsel for Mr Shelford, Mr Huda, submits such interpretation of both ss 138 and 192 of the Act results in procedural prejudice against Mr Shelford.
Procedural background
[7] Mr Shelford was arrested later than his co-defendants, Ms Sheed and Mr Carston. Subsequently, Mr Shelford’s first appearance in the District Court on 4 January 2021 was two days after the appearances of his co-defendants.
[8] All co-defendants were remanded to the same date in the High Court for second call.
[9] A Crown prosecution notice in accordance with s 189 of the Criminal Procedure Act 2011 was filed on 19 January 2021, by which the Crown assumed responsibility for Mr Shelford’s proceeding.
[10] At second call Ms Boshier orally notified the Court that the charges of all defendants were to be heard together. Such course of action was not opposed by any defendant. A transcript of the hearing records:
Time Speaker Note 9:23:18
Ms Boshier
Addresses His Honour re joinder application – no opposition from defendants – to be dealt with on papers
[11]The Crown subsequently filed the notice on 25 March 2021.
Charges to be heard together
[12] Section 138 of the Act was amended on 29 October 2019 by the Courts Matters Act 2018.
[13]Section 138 provides:
138 Trial of different charges together
(1) The prosecutor may, by notifying the court before which a proceeding is being heard, propose that—
(a)2 or more charges against 1 defendant be heard together; or
(b)the charges against 1 defendant be heard with charges against 1 or more other defendants.
(2) Despite subsection (1), the prosecutor must seek leave for the charges to be heard together if the notification involves a charge in respect of which the proceedings have been adjourned—
(a)for trial, if the trial procedure is the Judge-alone procedure; or
(b)for trial callover, if the trial procedure is the jury trial procedure.
(3) Unless the court makes an order under subsection (4), charges must be heard together—
(a)in accordance with any notification given under subsection (1); or
(b)if leave is granted under subsection (2).
(4) If the court before which the proceeding is being conducted considers it is in the interests of justice to do so, it may, on its own motion or on the application of the prosecutor or a defendant, order that 1 or more charges against the defendant be heard separately.
Submissions on charges being heard together
[14] Ms Boshier submits oral notification of a proposal to join the charges at second call (which was not opposed by any defendant) is sufficient notice for s 138(1), and the proceedings should be considered as formally joined at that point. Alternatively, Ms Boshier submits if the first oral notification did not join the charges, having given notice the charges were to be heard together within the prescribed time period, the charges must be heard together (s 138(3)) and the only exception to this would be if s 138(4) was engaged.
[15] Conversely, Mr Huda submits such an interpretation leads to procedural unfairness against any defendant, and in this case against Mr Shelford.
[16] I preface my subsequent reasons by reiterating that in this case having the charges heard together was not opposed by any defendant when, at second call, Ms Boshier orally notified the Court the Crown proposed to have the charges heard together.
What does s 138 require?
[17] I accept the submission that, on a strict reading of s 138(1), the charges can be joined by oral notification in court where hearing the charges together is unopposed and the notification occurs before adjournment to trial callover.
[18] The Oxford English Dictionary (OED) defines the word “notify” to mean “to inform (someone) of something in a formal or official manner”.1 The section does not necessarily require that the formal communication be in written form. I accept that advising the presiding Judge in submissions the Crown intends the charges to be heard together constitutes a formal communication. However, that is not the end of the matter.
[19] In this case, the notification element of s 138(1) is fulfilled because it is clear that at second call the Judge was advised by Ms Boshier the charges were to be heard together and no defendant opposed that course.
[20] Written notice that the charges were to be heard together was received by the Court on 25 March 2021, before the adjournment of the matter to trial callover. As the notification and notice were unopposed, the effect of s 138, and in particular s 138(3), was that the charges were to be heard together.
[21] Mr Huda’s submission is that the Act ought not be interpreted in the way I have interpreted it, as such an interpretation constitutes a procedural prejudice against Mr Shelford. Mr Huda’s submits this is because Mr Shelford did not have real opportunity to assess his position on the proposal to hear the charges together nor, in any meaningful sense, to be heard on the issue. That position belies the fact he was represented by competent counsel who did not oppose the charges being heard together.
[22] Mr Huda’s argument is readily answered. The procedure to have the charges heard together is one that could always be the subject of an application for severance under s 138(4) at a later stage in the proceedings.
1 Oxford English Dictionary (3rd ed, online ed, Oxford University Press, 2003).
[23] As a general observation on best practice (so as to avoid the difficulties arising in this case) I posit that s 138 be approached in two ways, either:
(a)by oral notification in court, with a record of the notification and acknowledgement that the charges are to be heard together in the presiding Judge’s minute, or
(b)written notice of the type filed in this case, following which the Registrar takes the necessary action to ensure the charges are heard together.
[24]Either practice must take place before any adjournment to trial callover.
[25] As I have found the charges were to be heard together following the notification or the written notice, the Crown do not need the Court’s leave to withdraw the charge.
[26] I observe that had I been required to consider the question of leave to withdraw the charge on the facts of this case I would have granted the Crown’s application.
[27]It follows that Mr Shelford’s application for dismissal of the charge is refused.
Doogue J
Solicitors:
Raymond Donnelly & Co, Christchurch CC:
E Huda, Christchurch
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