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…

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 Smith

Details

AGLC: R v Smith [2007] NZCA 26
Case: [2007] NZCA 26
Decision Date: 27 February 2007

CaseChat Overview and Summary

Levi Heremaia Smith, one of thirteen men charged with attempted murder and causing grievous bodily harm with intent, sought leave to appeal against the High Court's decision to deny his application for severance from his co-accused. The crux of the Crown's case is that Smith and his co-accused drove to an address in Otara with weapons and attacked the two victims, with a gang context to the case. The primary issue for the Court of Appeal was whether the High Court judge erred in her exercise of discretion by not granting Smith's application for severance from his co-accused.

The basis of Smith's severance application is that nine of the co-accused have made statements to the police which implicate him. The Court of Appeal considered that the statements of the co-accused had the potential to prejudice Smith should the jury disregard the direction, which would undoubtedly be given, as to their inadmissibility against Smith. Further, the statements would make it difficult for Smith to challenge the credibility of Vea, who was involved in the incident and was a co-offender of Smith. However, the Court of Appeal found that the High Court judge had recognised the weight of the arguments presented by Smith and had properly considered the relevant principles. The Court of Appeal concluded that the risk to Smith 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.

The Court of Appeal found that editing may be appropriate to minimise the risk of prejudice to Smith. The Court of Appeal also noted that it would be open to Smith to renew the application for severance during the trial, particularly at the end of the evidence. If the judge is then of the view that the prejudice to Smith associated with statements of his co-accused warrants severance, it could be granted, although the Court of Appeal emphasised that severance in cases of this sort is exceptional.

The Court of Appeal granted leave to appeal but dismissed the appeal.

Orders