R v Timoti
[2023] NZHC 2031
•31 July 2023
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 Mr Timoti, who acknowledged he brought a firearm to the house, discharged the firearm either deliberately or recklessly, such that a bullet from the firearm killed one of the occupants.
[9] [REDACTED – This redaction, and all others following, are solely made to protect the fair trial rights of the defendants at their rescheduled trial]
Disclosure problems
[10] So, against that background, with three different defendants allegedly criminally liable in different ways, disclosure of all relevant evidence – particularly about what was said by the complainants and the other occupant of the house, Ms Pakihi Yelash – is of crucial importance in terms of preparing the case and formulating the defence theory of the case.
[11] At the pre-trial conference on 6 July 2023 with all counsel, which was my first involvement with this case, defence counsel, particularly Ms Manning, highlighted the then-extant difficulties with disclosure, which was said to be incomplete. Mr McMullan for the Crown reassured the Court that this was under control and was soon to be resolved.
[12] Perhaps optimistically, I concluded that disclosure, having been signalled as an issue, would quickly be completed so that the trial could commence as planned. There were further concerns echoed prior to trial by way of memoranda. At trial, before it started, Mr McMullan again, relying on the Police, assured the Court that disclosure was complete, subject to some minor outstanding matters.
[13] On Wednesday, 26 July 2023 it transpired that a further 250 Police photographs had been found and disclosed just that day, at least one of which now seems to be of particular relevance. [REDACTED]
[14][REDACTED]
[15][REDACTED]
[16][REDACTED]
[17][REDACTED]
[18][REDACTED]
[19][REDACTED]
[20][REDACTED]
[21][REDACTED]
[22] Mr McMullan, quite responsibly, conceded that Ms Pakihi Yelash would need to be recalled for all this to be put to her.
[23][REDACTED]
[24][REDACTED]
[25] At that stage, I noted very clearly that, at 1.55pm on Friday, it seemed very clear that all documents that were known to exist had been disclosed. And, as I put it, there was a line in the sand so that any more disclosure after that time, amongst other things, “would put the trial at severe risk”.
[26] Clearly the major problem, but by no means not the only one concern, was Detective Le’au’s late-disclosed (last Thursday morning) notebook evidence. He is also the officer in charge of disclosure and also the officer in charge of dealing with
the deceased’s family and victims/complainants. So, one would have reasonably thought that of all people, he would know how important it would have been to disclose details of all his interactions with the complainants and Ms Pakihi Yelash, a key Crown witness.
[27] He had also noted in his late-disclosed notebook that another relevant notebook had gone missing, and he could not find it. That notebook has now been found. There are 57 relevant pages, first made available to the defence at 9.50am today. Those pages are said, by the defence lawyers, to be more than peripheral and insignificant. It will take the lawyers, they tell me and assure me from the Bar, all of today and most of tomorrow to absorb the material [REDACTED].
[28] Frankly, I take that with a grain of salt. I would have thought we would have been ready to continue by tomorrow lunchtime. Ms Manning, I think is not greatly troubled by that suggestion and Mr Dickinson is of the view that, if I forced him to do so, he would comply but he needs the extra time.
[29] Mr McMullan is of the view that time will be required by defence counsel and should be given, but what that has been disclosed today is not central, not of huge significance and, in the ordinary course, can be absorbed and responded to by the defence reasonably quickly. However, he concedes he will not necessarily know how the material might assist or prejudice the defence cases.
The issues
[30] So, with that background, there are effectively two issues before the Court. The Crown submitted that R v Bublitz, although in the context a judge-alone trial, set out the correct legal principles for application here, particularly at paras [28]-[55].1 Defence counsel agreed.
Substantive issue
[31] One is a substantive application now made by Mr Dickinson, joined by both other defence counsel on instruction from their clients, to have the trial “aborted” on
1 R v Bublitz [2017] NZHC 1059.
the grounds that there is a “reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances”.2 That is the accepted test. It arises from s 22(1)(a) of the Juries Act, previously set out.
[32] That is to do with all the matters that I previously set out that prejudice the defence, in Mr Dickinson’s view, irretrievably. He submits that there is a genuinely reasonable apprehension of a miscarriage of justice in the circumstances of this trial, caused by the late disclosure which would prejudice the defence. [REDACTED] Also the sheer volume of late disclosed material, some clearly germane to the defence, which cannot properly be absorbed in the time available.
Second issue: ongoing disclosure problems and their impact on this and future scheduled trials
[33] That, however, I leave to one side. There is another issue which arises if this matter is further adjourned to Wednesday at 10am, by which time it is thought all disclosure issues can be resolved. This will include resolution of the importance of the late disclosed photographs and the necessity of a potential expert witness giving evidence about the firearm in the photograph of Mr Wiki Yelash’s bedroom.
[34] If it is put off until Wednesday at 10am, then Mr McMullan has responsibly informed the Court it is most unlikely the trial will conclude within the four-week timeframe. He said we would have lost four days of the trial if we commenced on Wednesday. And there would be up to a day required to recall and re-examine Ms Pakihi Yelash. That would mean a five-week trial.
[35] That would inevitably result in the cancellation of a murder trial that I am told, in all respects, is ready to proceed three weeks from today. It would be cancelled because there would not be sufficient “cell space” within the Court to house all the defendants involved in the trials then taking place. It would also have significant repercussions for judicial rostering. Those matters, of course, are not decisive. It is not unknown for trials to go on longer, sometimes much longer, than estimated. But, in this case, the estimate given to the jury, and the confidence that it would be dealt
2 R v Marshall [2004] 1 NZLR 793 (CA) at [15], cited in R v Bublitz, above n 2, at [29].
within four weeks, is now in pieces. It will take more than four weeks. It may be five weeks. Given what has happened so far, that is optimistic. And there is the certainty that an already scheduled jury trial would be inevitably cancelled. In this respect s 22(3)(a) provides a further ground to abort this trial.
Discussion
[36] I focus primarily in this decision on the second issue that I have just outlined. In my view, the ongoing and what I would describe as “comprehensive” failure of disclosure obligations, meets the test in s 22(3)(a) of the Juries Act as being a “casualty”. Mr McMullan accepts that. In his view, the central question in this case is whether, in the Court’s opinion, it is “highly expedient for the ends of justice” for the jury to be discharged. His tentative view, given all the circumstances here, is that it probably meets that test, subject to the Court’s view. That is a responsible submission for him to make. In fact, it is the view that I had already reached after hearing all counsel.
[37] In my view, it is the inevitable conclusion that must be reached in these circumstances, including when I balance the ends of justice in terms of completing this trial against the interests of justice for another murder trial to be heard and completed as scheduled. One of the two trials – either this or the next scheduled one
– simply will not be able to be heard. With all the now obvious risks associated with this trial, it is better for the other scheduled trial to proceed.
[38] But more so than that, the ends of justice include ensuring a trial that is fair. Without ruling on the first major issue, and accepting that it is a “line call” at best, there are real questions here as to whether the defendants will obtain a fair trial. In my view, there is a reasonable apprehension of a miscarriage of justice in these circumstances. The volume of ongoing late disclosure is just too large. The defence is clearly compromised. The implications arising from the new evidence are too significant.
[39] Frankly, if I ruled that the trial should proceed, it would be an obvious appeal point. The Crown agrees that it is a line call but just on the acceptable side of the line. It would obviously be the subject of intense scrutiny and argument.
Conclusion
[40] This trial is only three days into the evidence. In my view, the jury are already becoming frustrated and losing confidence in the system. Again, that could be cured by strong directions. But it is not ideal. When I look at it in the round, I conclude it is “highly expedient for the ends of justice” for this jury to be discharged.
[41] I might say, and it needs to be said, that Mr McMullan has conducted himself in a way that is consistent with the highest obligations of officers of this Court. He has admitted that his assurances regarding disclosure have proved hollow. As is well- known, he can do no more than pass on what he has been told by the officer in charge of discovery and the officer in charge of the case. There can be no personal blame of him. Even more so, there is absolutely no question that any of the defence counsel are to blame. They have consistently raised the issue of inadequate disclosure. It has clearly been an ongoing and, as it turns out, totally justified concern.
[42] Amongst other things it seems to me, what has happened here is “the” object lesson as to why the recently issued Practice Note by the Chief High Court Judge as to disclosure obligations is necessary. That Practice Note came into force after this trial had been set down. But this case demonstrates the exact reason justifying the Practice Note.
[43] I cannot help but observe, and I say this as fairly and transparently as I can, that this is a case where Police statutory disclosure obligations have fallen significantly and apparently consistently short of the mark. It is a matter of real concern. The defendants here, each of them, face the highest and most serious charge known to the criminal calendar.
[44] It is absolutely unarguable that disclosure requirements need to be adhered to. Here, the very significant failure to do so has had the result that a jury needs to be discharged, a trial aborted, and a rescheduling required. That is something that every Judge considers very carefully, as a last resort. In this context, it is virtually the ultimate sanction for Police disclosure failures. But the consequences of the decision also affect so many others involved in this trial. I say no more.
[45]The jury will be discharged from delivering a verdict at 2.15pm.
Becroft J
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