R v Smith - [2013] NZHC 1315

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000011 [2013] NZHC 1315

BETWEEN THE CROWN Applicant

ANDREMA SMITH Respondent

Hearing: 20 May 2013

Counsel: L C Preston for Applicant
S A Saunderson-Warner for Respondent

Judgment: 10 June 2013

JUDGMENT OF MILLER J

[1] The Crown seeks the Court’s permission under s 345(3) of the Crimes Act

1961 to file an indictment charging Mr Smith with sexual violation by rape.

[2] Mr Smith resists on the ground that only by order of the Court of Appeal may he be tried. He relies on a District Court decision under s 345(5), in which that Court quashed an earlier count alleging the same offence. Because an order under s 345(5) is an acquittal for purposes of s 378D of the Crimes Act, which permits the retrial of an acquitted person in certain circumstances, he says that he may be tried only if the Court of Appeal accepts there is new and compelling evidence and finds a
“further trial” in the interests of justice.

R v REMA SMITH [2013] NZHC 1315 [10 June 2013]

[3] The application effectively does double duty as an appeal from a second District Court judgment1 in which a relaid information was stayed for want of authorisation from the Court of Appeal.

The narrative

[4] By information laid on 4 April 2012 Mr Smith was charged with sexual violation by rape, along with another man. He pleaded not guilty. Although s 345 still speaks of depositions, the committal process now involves no judicial assessment of charges against the evidence. Rather, committal statements having been filed, Mr Smith was routinely committed for trial on 7 June.

[5] The Crown means to adduce DNA and text evidence implicating Mr Smith. That evidence is for present purposes admittedly sufficient to disclose a triable offence of sexual violation. But it was not included in the committal statements. Rather, the Crown signalled in July 2012, shortly after committal, that ESR witnesses would be called. The Crown might have filed the evidence with the
committal statements, or sought an extension of time for filing them,2 or moved to

add them to the committal evidence,3 but it did none of these things.

[6] On 10 September Mr Smith moved for an order quashing the sexual violation count under s 345(5), asserting that the committal statements contained no evidence of penetration. (It appears that the complainant was grossly intoxicated when allegedly raped, so she cannot recount the attack or identify her attackers.) The application was granted in a judgment delivered on 12 December.4

[7] In the meantime, on 26 November, a second information containing the same allegation of sexual violation had been laid. As soon as the s 345(5) order was granted Mr Smith asked the District Court to stay the second prosecution, arguing that the first indictment had been quashed and the Crown had not obtained consent
under s 378D to retry him.

1 Police v Smith DC Dunedin CRI-2012-012-3952, 8 March 2013.
2 Section 168(2)…

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 [2013] NZHC 1315
Case: [2013] NZHC 1315
Decision Date: 10 June 2013

CaseChat Overview and Summary

The Crown sought permission to file an indictment charging Mr Smith with sexual violation by rape, which Mr Smith resisted on the basis that only the Court of Appeal could permit a retrial. The District Court had quashed the first indictment on the basis that it did not contain evidence of penetration and stayed the second prosecution pending the outcome of the appeal. The Crown then applied to the High Court for permission to file the indictment. The legal issues in this case were whether the Court of Appeal has jurisdiction to order a retrial of Mr Smith under section 378D of the Crimes Act, and whether the High Court can authorise an indictment under section 345(3) of the Crimes Act. The Court held that the Court of Appeal does have jurisdiction to order a retrial of Mr Smith under section 378D of the Crimes Act, as the legislature had expressly included pre-trial orders under section 345(5) in the definition of acquittal. However, the Court declined to exercise its discretion under section 345(3) of the Crimes Act to authorise an indictment, as to do so would defeat the objective of the legislature in including section 378D in the 'acquitted defendants retrials' regime. The Court dismissed the Crown's application, and the Crown must seek permission from the Court of Appeal if it still wishes to try Mr Smith.

Orders