R v Timoti - [2023] NZHC 2031

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-004-201

[2023] NZHC 2031

THE KING

v

APISALOMA TIMOTI

SAM JUNIOR ANGELO THOMSEN ROBIN DANIEL LEOTA

Defendants

Hearing: 31 July 2023

Appearances:

S McMullan and K Li for the Crown

D Dickinson and G Timms for S Thomsen N Manning and S Brickell for A Timoti

G Newell and C Farquhar for R Leota

Judgment:

31 July 2023

REDACTED ORAL CHAMBERS JUDGMENT OF BECROFT J

[Discharging jury and aborting trial]

Solicitors/Counsel:
Meredith Connell, Auckland

D Dickinson, Auckland G Timms, Auckland
N Manning, Auckland S Brickell, Auckland G Newell, Auckland C Farquhar, Auckland

R v APISALOMA TIMOTI [2023] NZHC 2031 [31 July 2023]

Decision

[1] This trial has been bedevilled by grossly inadequate compliance by the Police and the Crown with their statutory disclosure obligations.

[2] The point has now been reached, most regrettably, where the jury will need to be discharged without giving a verdict under s 22(3) of the Juries Act 1981. That section provides:
22 Discharge of juror or jury
(1)When this subsection applies, the court, having regard to the interests of justice, may either—
(a)discharge the jury without the jury giving a verdict (whether unanimous or majority); or
(b)discharge the juror or jurors concerned from the panel and jury and, subject to subsection (1A), proceed with the remaining jurors and take their verdict (whether unanimous or majority).

…
(3)The court may also discharge the jury without it giving a verdict (whether unanimous or majority) if—
(a)a casualty or emergency makes it, in the court’s opinion, highly expedient for the ends of justice to do so; or
(b)the jury has remained in deliberation for at least 4 hours and the jurors do not agree on the verdict (whether unanimous or majority) to be given, and the court thinks the period for which the jury has remained in deliberation is reasonable.

[3] It is necessary for me to set out the relevant charges and facts and the extent of the inadequate disclosure in this case before I provide clear reasons as to why the jury must be discharged.

The charges and relevant facts

[4] By way of background, the three defendants each face a charge of murder, and two charges of wounding with intent to cause grievous bodily harm. One defendant faces two charges as an accessory after the fact and, secondly, possession of an unlawful firearm – occurring after the alleged incident.

[5]It is unnecessary to go into all the facts of the case.

[6] It is sufficient to observe that there is an allegation that two of the defendants, Mr Thomsen and Mr Timoti, entered into a suburban dwelling-house in Mt Roskill on the 23 December 2021 in circumstances that are still disputed during this trial.

[7] It is alleged that Mr Thomsen used a machete, which he brought to the house, to wound Mr Wiki Yelash and to wound Mr Jason Kupa.

[8] It is also alleged that…

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 Timoti

Details

AGLC: R v Timoti [2023] NZHC 2031
Case: [2023] NZHC 2031
Decision Date: 31 July 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Timoti involved three defendants facing serious charges, including murder and wounding with intent to cause grievous bodily harm. The trial faced significant challenges due to gross non-compliance by the Police and the Crown with statutory disclosure obligations. The court found that the extensive late disclosure of evidence, including numerous photographs and notebook entries, severely prejudiced the defendants' ability to prepare their defence. This led to the court discharging the jury without a verdict under section 22(3) of the Juries Act 1981, as the situation was deemed highly expedient for the ends of justice.

The court identified two primary issues: the substantive application by defence counsel to abort the trial due to a reasonable apprehension of a miscarriage of justice and the ongoing disclosure problems impacting the current and future scheduled trials. The court concluded that the comprehensive failure to comply with disclosure obligations met the test for a "casualty" under section 22(3)(a) of the Juries Act. The court balanced the interests of ensuring a fair trial against the need to proceed with other scheduled trials, ultimately deciding that it was highly expedient for the ends of justice to discharge the jury. The court highlighted the importance of adhering to disclosure requirements and the significant consequences of failing to do so, which necessitated the discharge of the jury and the abortion of the trial.

The court discharged the jury and aborted the trial, highlighting the necessity of adhering to disclosure obligations and the significant impact of non-compliance. The trial was set to be rescheduled, and the court noted the importance of ensuring that future trials would not be similarly affected by disclosure failures.

Orders