R v Smith HC Palmerston North CRI 2009-454-52

[2010] NZHC 842

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2009-454-52

THE QUEEN

Applicant

v

JASON DAMIAN SMITH

Respondent

Hearing:         27 April 2010

(Heard at Wellington)

Counsel:         B D Vanderkolk for Crown

G B Gimblet for Accused

Judgment:      3 May 2010

ORAL JUDGMENT OF RONALD YOUNG J

(Application for orders pursuant to Crimes Act 1961, s 345(3) and s 345B)

[1]      After the filing of formal witness statements the respondent was committed for trial in the District Court on one charge of injuring with intent to cause grievous bodily harm (Crimes Act 1961, s 189(1)).

[2]      The Crown now makes an application pursuant to s 345(3) for this Court’s consent to file an amended indictment containing one count of attempted kidnapping

(Crimes Act 1961, s 209B).

R V JASON DAMIAN SMITH HC PMN CRI 2009-454-52  3 May 2010

[3]      The District Court does not have jurisdiction over the charge of kidnapping unless transferred to that Court by the High Court pursuant to the middle band procedure set out in s 184Q of the Summary Proceedings Act 1957.

[4]      I am satisfied firstly that this is a proper process for such an application.  I

agree with MacKenzie J’s analysis in R v L HC Wellington CRI 2007-485-159,

11 April 2008.  This is so when the Crown wishes to add a count to an indictment which is prima facie within the High Court’s jurisdiction.

[5]      As  a  number  of  Judge’s  have  previously remarked,  this  is  a remarkably cumbersome process and one that cries out for legislative change.

[6]      In any event, as to the appropriate test I should apply in such circumstances. I am satisfied that it is as follows – whether there is sufficient evidence such that a properly directed jury could convict, that is, that there must evidence of the elements essential  to  the  proving  of  the  charge  of  attempted  kidnapping  present  in  the evidence presented by the Crown.  In saying that of course I acknowledge it is the Crown’s responsibility ultimately to determine what they believe is the appropriate charge to be laid on the evidence disclosed in the committal and subsequently. However this Court does retain a supervisory role in the circumstances.

[7]      Counsel for the respondent, Mr Smith, accepts that this is the appropriate procedure and the appropriate test as I have identified.  In this case the application is opposed based on the factual assessment.  The respondent says there is not sufficient evidence on which a properly directed jury could convict him of attempted kidnapping.   That is so because the respondent  says that there is not sufficient evidence from which it could be inferred that he was detaining and/or confining the complainant at the time.  The submission of the respondent is that there is more than one inference available in the circumstances and therefore not sufficient evidence to justify the inferences of detaining and confining.

[8]      To return to the facts.   It seems that there has been something of a power struggle between members and affiliates of the Nomad gang which has resulted in a

number of violent acts in the Manawatu.   The Crown allege that in June 2009 the complainant’s vehicle was left at an address in Levin after an altercation.

[9]      It is alleged that the accused/respondent here received the vehicle without the consent of the complainant.   Later it is said that the accused/respondent drove the complainant’s vehicle to a tangi.  The complainant who was at the tangi recognised the vehicle and removed the spark plugs to incapacitate the vehicle thus to prevent it being driven away.  At that stage it is alleged the complainant was approached by the accused/respondent and other gang members, an argument developed and the accused/respondent began to punch the complainant.  Others of the gang joined in the attack.  At one stage they put the complainant into the boot of the car and tried to shut the boot.   The car’s engine was running.   The accused/respondent and others with him participating either as principals or as parties.   They are alleged to have slammed the boot on the complainant’s legs a number of times in an effort to shut the boot.  The complainant managed to get his legs out and kick at the boot to stop it from shutting.  The complainant was then able to flee the scene.

[10]     The Crown say that this evidence therefore justifies a charge of attempted kidnapping by the respondent.  On such a charge the Crown will need to prove:

a)        the accused was involved in trying to detain the complainant (either as a principal or as a party);

b)        the attempted detention was deliberate;

c)        the attempted detention was unlawful;

d)       the attempted detention was done without the complainant’s consent;

e)        the accused knew there was no consent to the attempted detention;

and

f)        finally, the accused intended to try to cause the complainant to be confined.

[11]     I am satisfied that contrary to the submissions of the accused/respondent there is evidence on which a jury could infer that there was a detaining and confining here.  Having reached that conclusion on the basis of the other evidence recounted by the Crown there is, in my view, sufficient evidence at the committal stage for a jury properly directed to convict.

[12]     I therefore propose to grant the application pursuant to s 345(3).  The count of attempting to kidnap will therefore be added to the indictment.

[13]     The second application is for an order under s 345B for an extension of time for   filing   the   indictment.      The   indictment   was   required   to   be   filed   by

14 January 2010 being 42 days after committal.   This was delayed because of this application to join the attempted kidnapping charge.   In the circumstances the application is appropriate and I grant it.

[14]     Finally,  I  consider  this  is  an  appropriate  case  under  the  middle  band procedure to make an order, once the amended indictment has been filed pursuant to s 168A of the Summary Proceedings Act, that this trial be transferred to the District Court for trial.

[15]     In summary, therefore:

a)        I grant the application to join a count of attempted kidnapping to the indictment;

b)I give leave to file in the High Court an amended indictment as long as it is filed within seven days from the date of this judgment;

c)        thirdly, upon filing the amended indictment these proceedings are to be transferred to the District Court for trial pursuant to the middle

band procedure.

Solicitors:

B D Vanderkolk, Ben Vanderkolk & Associates, PO Box 31, Palmerston North email:  [email protected]

G B Gimblet, Barrister, Wellington

Ronald Young J