R v Smith

[2007] NZCA 26

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 470/06 [2007] NZCA 26

THE QUEEN

v

LEVI HEREMAIA SMITH

Hearing:         27 February 2006

Court:            William Young P, Hammond and Wilson JJ Counsel: H E Juran for the Appellant

M D Downs for the Crown

Judgment:      27 February 2007         at 2.45 pm

JUDGMENT OF THE COURT

A          We grant leave to appeal.

B           We dismiss the appeal.

R V SMITH CA 470/06  27 February 2007

REASONS OF THE COURT

(Given by William Young P)

[1]      Levi Heremaia Smith is awaiting trial in the High Court at Auckland on charges of attempted murder and causing grievous bodily harm with intent to do so. Thirteen men are charged in the indictment.  The crux of the Crown case is that the appellant and his co-accused drove to an address in Otara with weapons and attacked the two victims.  There is a gang context to the case.  The appellant sought an order from the High Court directing that he be tried separately from his co-accused, an application  which  was  dismissed  by  Courtney  J  in  a  judgment  delivered  on

30 November 2006.

[2]      The appellant now seeks leave to appeal.

[3]      The only issue in the case is whether Courtney J erred in the way in which she exercised her discretion.

[4]      The case against the appellant is based on the evidence of a man called Vea who was involved in the incident and was, on the Crown case, a co-offender of the appellant.  The basis of the severance application is that nine of the co-accused have made statements to the police which implicate the appellant.  At least in the absence of editing, these statements have the potential to prejudice the appellant should the jury disregard the direction, which will undoubtedly be given, as to their inadmissibility  against  the  appellant.    Further,  they  will  make  it  hard  for  the appellant to challenge Vea’s credibility.   The concern of Mr Juran who appeared before us for the appellant is that the jury is likely to approach the case against the appellant on the basis of a holistic assessment of Vea’s credibility.   On this basis there is a real risk, according to Mr Juran, that the statements of the co-accused will be treated by the jury as indirectly corroborating Vea’s evidence.

[5]      In  the  judgment  under  appeal  the  Judge  recognised  the  weight  of  the arguments addressed by Mr Juran.  In declining severance she relied primarily on the

consideration that what is alleged is a joint enterprise.  She referred to the decisions of this Court in R v Fenton CA223/00 14 September 2000 and R v Peters CA430/05

29 March 2006.  She assumed that there would be a an explicit direction from the trial Judge regarding the inadmissibility of the co-accused’s statements against the appellant.  She considered that the jury could be expected to grasp and follow that direction.   She  concluded  therefore  that  the  risk  to  the  appellant  from  the  jury hearing admissible evidence did not outweigh the desirability of a single trial in which all aspects of what happened on the night in question can be canvassed.

[6]      The appellant’s argument before us was very much a rerun of what was urged on Courtney J.   Mr Juran noted that some of the material in the statements was particularly damning and he contended there would be no particular difficulty in having a separate trial for the appellant (a trial which he said would take only two or three days).

[7]      In his written submissions, Mr Downs for the Crown noted that the appellant is challenging the exercise of the discretion.  He contended that there was no error of principle in the way in which the Judge approached the case.  As well as referring to Fenton and Peters he also relied on R v Taylor CA132/06 28 September 2006 and R v Hayter [2005] 2 All ER 209.

[8]      Mr Juran was unable to identify any tangible error made by the Judge in her approach to the case.   His argument in effect was simply that her decision was plainly wrong and that this was one of those exceptional cases in which severance was appropriate.

[9]      The primarily relevant considerations are set out in Fenton at [25] – [26]:

[25]      What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime.  The reasons are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the court system generally.  This public interest will ordinarily outweigh the interests of an individual accused in not having inadmissible evidence before the jury.  That

is the usual problem in a joint trial from the accused’s perspective.   When given proper directions juries are to be regarded as capable in most cases of understanding and applying the distinction between admissible and inadmissible evidence.

[26]      There  may,  however,  be  occasions  when  the  weight   of  the inadmissible evidence, against that of the admissible, makes it unfair to an accused, notwithstanding the trial Judge’s directions, to expect the jury to act only on the evidence which is admissible.  Similarly, there may be cases in which the difficulties in isolating the admissible from the inadmissible make it unfair to expect the jury to undertake that exercise.  Those are the usual circumstances in which severance may be justified.  Ultimately the question is whether the applicant for severance can demonstrate some feature of the case which clearly outweighs  the ordinary approach  and  the  basis  upon which  it  rests,  and  which  therefore  mandates  severance  in  the  overall interests of justice.  After verdict the same general considerations apply but, in order to succeed, the appellant must show that the joint trial has resulted in a miscarriage of justice.

[10]     If the possibility of editing is put on one side, the case is perhaps on the margin, especially given the practical problems which the appellant will have in impeaching Vea’s evidence.  On the other hand, an indirect corroboration effect must be a reasonably common incident of joint enterprise trials where one accused in an out of court statement has implicated the other.  As well, some (indeed we suspect all) of the statements could be edited to remove the material which implicates the appellant (eg by replacing his name with an “X”).  Further, there is a real sense in which the application for severance is premature.  Some of the accused may plead guilty.  The statement of an accused who pleads guilty will necessarily be taken out of play.  Some of the accused who have made statements implicating the appellant may  well  give  evidence  and,  if  they  do,  that  evidence  will  be  relevant  to  the appellant.  The possibility that such evidence may be given highlights the desirability of there being a single trial in this case.

[11]     Accordingly, we do not propose to interfere with the decision of the Judge. We are, however of the view that editing may well be appropriate to minimise the risk of prejudice to the appellant.   As well, during the trial it will be open to the appellant to renew the application for severance, an application which would be best addressed at the end of the evidence.   If the Judge is then of the view that the prejudice to the appellant associated with statements of his co-accused’s warrants

severance it could be granted then, although we emphasise that severance in cases of this sort is exceptional.

[12]     Accordingly, we grant leave to appeal but dismiss the appeal.

Solicitors:
Crown Law Office, Wellington