R v Wenzel - [2009] NZCA 130

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA31/2009
[2009] NZCA 130
THE QUEEN
v
SHANE CHARLES WENZEL
Hearing:18 March 2009

Court:O'Regan, Robertson and Arnold JJ
Counsel:J N Bioletti for Appellant

N Till QC, C J Curran and A C Butler for Crown

Judgment:8 April 2009 at 12.30 pm

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS GRANTED, BUT THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]        The appellant, Mr Wenzel, and another (“XYZ”) whose name has been suppressed, are awaiting trial on an indictment which has 36 counts:
·     Using a document dishonestly – 17 against Mr Wenzel only
·     Using a document to defraud – 2 against Mr Wenzel only
·     Obtaining by deception – 16 against both accused
·     Failing to produce documents – 1 against Mr Wenzel only.

[2]        At issue on this appeal is an order made on 9 January 2009 by District Court Judge Wade under s 361D of the Crimes Act 1961 that there should be a Judge alone trial.
[3]        That section, which came into force on 25 December 2008, enables the prosecution to apply for a Judge alone trial, an ability which hitherto had been available only to an accused.
[4]        As it is a new legislative provision, we have dealt contemporaneously with leave to appeal and the merits. This is the first time s 361D has been considered by this Court. Since the provision came into force, the High Court has considered one application under s 361D (R v F CRI 2007-092-18132 HC AK 20 February 2009) and one under its companion provision, s 361E, which provides for judge alone trials in cases of juror intimidation (R v Pritchard CRI 2008-020-002387 HC NAP 23 February 2009).In R v F, Rodney Hansen J noted the Law Commission’s assessment that s 361D would have particular application to cases involving fraud or complex evidence.
[5]        In Pritchard, Dobson J observed that there is no guidance in the Crimes Act on how s 361E is intended to be balanced against s 24(e) of the New Zealand Bill of Rights Act 1990 (“NZBORA”), which provides that everyone charged with an offence the penalty for which is or includes three or more months’ imprisonment has the right to elect trial by jury. The Judge noted that by virtue of s 4 of NZBORA, s 361E must prevail over s 24(e) of NZBORA if they conflict, but said:
[5]       Intuitively, however, the derogation from fundamental rights such as those in s 24 of the New Zealand Bill of Rights Act should only occur when the Court is well satisfied that such derogation is warranted. In the context of New Zealand society and the balanced administration of the criminal law, it is to be hoped that justification for orders under this section will be rare.

Background
[6] Mr Wenzel and XYZ were arrested in October 2006. A depositions…

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 Wenzel

Details

AGLC: R v Wenzel [2009] NZCA 130
Case: [2009] NZCA 130
Decision Date: 8 April 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Wenzel was heard and decided on 8 April 2009. The appellant, Shane Charles Wenzel, and another individual, XYZ, were facing trial on 36 counts related to fraud, obtaining by deception, and failing to produce documents. The primary issue was an order made by District Court Judge Wade on 9 January 2009, under section 361D of the Crimes Act 1961, which mandated a judge-alone trial. This section, effective from 25 December 2008, allowed the prosecution to apply for a judge-alone trial, a privilege previously available only to the accused.

The appeal centered on several grounds: the jurisdiction of the court to entertain the application, the fairness of the proceedings, the impact of the New Zealand Bill of Rights Act 1990 (NZBORA), and the exercise of discretion by Judge Wade. The Court found that there was clear jurisdiction for the application, as all statutory requirements were met. It dismissed the argument that the timing of the application rendered it a nullity, holding that early filing facilitated procedural efficiency. Regarding fairness, the Court noted that the nature of the alleged crimes justified the application of the new statute. It also considered the impact on the right to trial by jury under NZBORA, concluding that the statutory provisions were justified and did not conflict with the Bill of Rights. Finally, the Court examined Judge Wade's exercise of discretion and found it to be sound, rejecting the notion that a higher threshold should apply based on the potential severity of the sentence. The appeal was dismissed, and leave to appeal was granted.

Orders