R v Weston
[2022] NZHC 625
•30 March 2022
NOTE: PUBLICATION OF NAMES OF DEFENDANT ‘X’
PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-085-149
[2022] NZHC 625
THE QUEEN v
SHAYDE CAROLYN WESTON BREEZE HUNT-WESTON
X
LOUISE HUME TAIN TARARO
Hearing: 30 March 2022 Counsel:
S C Carter for Crown
R M Lithgow QC and P J Knowsley for Weston V Nisbet and G Fairbrother for Hunt-Weston
A Shaw and L Ord for X S Robinson for Hume No appearance for Tararo
Judgment:
30 March 2022
JUDGMENT OF CHURCHMAN J
Introduction
[1] Five defendants are facing charges arising from the violent death of Rau Tongia in December 2020. The relevant defendants and charges are:
R v WESTON & ORS [2022] NZHC 625 [30 March 2022]
(a)Shayde Weston is charged with murder;1
(b)Breeze Hunt-Weston is charged with wounding with intent to cause grievous-bodily harm and murder (as a party);2
(c)X is charged with murder (as a party);3
(d)Louise Hume is charged with murder (as a party);4 and
(e)Tain Tararo is charged with accessory after the fact to murder.5
[2] The joint trial is currently scheduled for 2 May 2022. The issue before the Court today is an application by the Crown for an adjournment of that trial date, to allow them to receive and process a mutual assistance request pursuant to the Mutual Assistance in Criminal Matters Act 1992, which is unlikely to be finalised until late 2022. As such it cannot be provided prior to the trial date. The next available date which is suitable has been identified by the registry as 1 May 2023. Some of the defendants oppose this application as they are currently remanded in custody and would remain so until their trial date barring any successful further bail applications.
Factual background
[3] The alleged offending occurred on or around 20 December 2020. The factual scheme of the alleged offending need not be traversed in detail for the current application, other than to note that the charges are serious, and relate to the death of Mr Rau Tongia.
[4] In these proceedings there has been disclosure of a considerable amount of material – to date there have been 11 disclosure packages comprising approximately a total of 6,777 pages of documents, as well as two hard drives of interception and phone data. Disclosure continues pursuant to the Criminal Disclosure Act 2008.
1 Crimes Act 1961, s 167.
2 Crimes Act 1961, ss 188(1), 167, and 66.
3 Crimes Act 1961, ss 167 and 66.
4 Crimes Act 1961, ss 167 and 66.
5 Crimes Act 1961, s 176.
[5] In a trial call over memorandum of 5 November 2021, the Crown noted that it was processing an extensive mutual assistance request, which at that point was not able to be finalised until 2022. This was noted in the minute following the trial call over, issued by France J, dated 25 November 2021.
[6] The Crown has requested data from American tech companies Google and Facebook. From Facebook, it has requested, in relation to 12 individuals:
(a)subscriber information including the name and address of the subscriber account, identifying details such as account or login details, email addresses, IP addresses, session times, date, logins, registration data, International Mobile Equipment Identity, Mobile Subscriber Integrated Services Digital Network, and telephone numbers;
(b)transactional information including records identifying dates, times, and senders and recipients of messages and calls; and
(c)content information being the content of all Facebook messages that have been saved or deleted.
[7] From Google, it has requested the following information relating to six individuals:
(a)subscriber and transaction information as in the request to Facebook, plus confirmation as to whether geolocation was enabled on the accounts;
(b)all geolocation data including GPS coordinates, estimates, radius, and dates and times of all location recordings within specific time periods; and
(c)data in relation to three individuals showing how electronic devices were positioned in space and movement of the device (tilt data).
[8] The present application was brought in February 2022, when, following correspondence with the United States Department of Justice, it became clear that the evidence requested could not be provided in time for the 1 May 2022 trial date.
Positions of the parties
Crown
[9] The Crown submits that there is strong evidence to suggest the defendants were exchanging Facebook messages about the shooting of Mr Rau Tongia, and that the request is likely to reveal relevant evidence. From the information requested from Google, the Crown seeks to identify who was present at the scene of the murder, as well as other relevant locations during the periods concerned.
[10] The request was drafted by the Police between February 2021 and August 2021. This involved reviewing investigation evidence including interviews, witness statements, screenshots, electronic data shown to police, review of publicly available Facebook data, and data from phone extractions of devices owned by the defendants. The request was provided to Interpol and Crown Law on 1 September 2021. Following review by Crown Law and consideration by the Deputy Solicitor General (Criminal), it was sent to the US Department of Justice on 21 December 2021.
[11] Following some back and forth between Crown Law and the US Department of Justice, including the provision of supplementary information by Crown Law/Police, on 23 February 2022, the US Department of Justice advised that they would be unable to complete any portion of the request by any time in March 2022. They stated:
Due to the complexity of the request, other urgent matters on our partner’s dockets already, the time it takes to get on court schedule for judicial review, provider response time to produce records pursuant to legal process, FBI time for filtering records, and the time required to obtain certified affidavits, the earliest I would imagine we could start producing records would be later in the summer (August, perhaps for the non-content record portions of the request). There are a number of “two-step” requests from New Zealand as well (analyzing non-content records to be produced to determine whether there is probable cause to seek content records), and these matters take a lot of time as well (especially if they require seeking content records later in 2022). I would recommend moving the trial as far back as possible in 2022, or even 2023 as you suggest. Given all of the variables above, it is impossible,
unfortunately for me to suggest a set date when all records could be sent to New Zealand.
[12] The Crown submit that this shows there is absolutely no prospect of receiving the requested information prior to the trial date of 2 May 2022. It submits that it is vital to the case and is likely to be highly probative to its case at trial. This is particularly so in respect of Facebook messages exchanged between the defendants around the period of the alleged offending which were then deleted by the defendants.
[13] They submit that it is in the interests of justice that the trial date be adjourned, and that given the significant amount of evidence that needed to be reviewed prior to the request being made, and the large scope of the request, it is understandable why the information will not be available by May 2022.
Defendants
[14] Having been granted bail, X neither consents to, nor opposes the Crown’s application for adjournment. Ms Hunt-Weston and Mr Tararo do not oppose the application, having been granted bail. The Crown had reported that Ms Hunt-Weston was at large having absconded from her EM bail address. Mr Nisbet advised the Court that she was now in custody but that he had instructions to apply for bail.
[15] Ms Hume opposes the adjournment. Ms Hume was originally granted bail on 17 December 2021 but was returned to custody in December 2021 after the occupier of the EM bail address withdrew their consent for Ms Hume to reside there. She was recently denied EM bail again because the address she had proposed was unsuitable. If the trial is adjourned to 1 May 2023, it will mean that she will have been in custody for over two years before her trial.
[16] Mr Robinson, counsel for Ms Hume, submits that the delay inherent in the mutual assistance process, coupled with delay by the Crown in entering into it, mean that a further delay to trial would be unconscionable. This is particularly so in light of his view that the Police have previously opposed applications for release on EM bail and allegedly brought inappropriate pressure to bear causing a prior bail address to become unavailable.
[17] Ms Weston opposes the adjournment. She also remains in custody. Mr Lithgow QC, on her behalf, submitted that the Crown’s mutual assistance application is akin to a ‘fishing-expedition’ or a ‘drift-netting’ exercise, owing to the fact that a large amount of data is sought with no sharp focus on what is expected to be recovered. He expressed the view that the request for an adjournment was an admission that, as it stands, the Crown cannot show sufficient evidence to obtain a conviction. However, he also acknowledged that Ms Weston’s attitude to adjournment would likely be different if there was a possibility of being granted bail on appropriate terms. He acknowledged that applications for bail are subject to their own statutory regime. I note that the length of time to trial is a relevant factor that the Court is required to consider under that statutory regime.
[18] Mr Lithgow submitted that the following matters were relevant in the Court’s determination:
(a)severance of the joint trial is justified to avoid the unfairness that is likely to arise as a result of an adjournment;
(b)the right to a trial without undue delay contained in s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) is the overriding consideration; and
(c)the inability of some of the defendants to obtain bail to date, coupled with what is described as the implied Crown acknowledgement of uncertainty about the sufficiency of their case are important matters.
[19] Mr Robinson, for Ms Hume, and Ms Ord for X endorsed Mr Lithgow’s submissions. They also submitted that, if the trial was to be adjourned, it had to be on the basis that such evidence as may be obtained by the Crown as a result of the mutual assistance request be provided to defence counsel in sufficient time so that they could analyse it and, if necessary, instruct expert witnesses in an effort to challenge it. they rejected a suggestion by Ms Carter that mid-February would be an appropriate deadline for such information to be supplied and suggested a deadline of mid- December 2022.
Relevant law/analysis
[20] Section 167 of the Criminal Procedure Act 2011 provides that a judicial officer may adjourn any proceeding to a time and place then appointed.
[21] The focus in this case is the effect of any potential adjournment for the period of roughly 12 months, on the defendants’ fundamental rights under NZBORA. Of most relevance is the presumption of innocence, and as noted in submissions for Ms Weston, the right to a trial without undue delay.
[22] While submissions were not put in this way, whether or not an adjournment should be granted ultimately depends on whether a deferral for a period of approximately 12 months is considered to be ‘undue delay’ pursuant to s 25(b) NZBORA.
[23] The protection afforded by s 25(b) protects the liberty of the accused. Its purpose is largely to minimise pre-trial restraints and potential prejudice to persons who have the benefit of the presumption of innocence.6 It applies to defendants even if they are not held in custody and is in operation from the time between arrest and final disposition.7
[24] The reasons for any potential delay are relevant, and the Court is less likely to identify an undue delay where proceedings are complex. The Supreme Court has said:8
Whether there has been undue delay is a function of time, cause and circumstance.
[25] Central to the consideration is whether the delay is able to be justified. This was articulated by the Supreme Court in Williams v R, which endorsed the view that the key considerations in determining whether a delay is undue are:9
6 R v Harmer CA/324/02, 26 June 2003 (CA), at [130].
7 Hughes v Police [1995] 3 NZLR 443 at 14; and Darmalingum v The State [2000] 1 WLR 2303 (PC) at p 2309.
8 Williams v R [2009] NZSC 41 at [12].
9 At [13]-[17].
(a)the length of the delay;
(b)whether there has been wavier of time periods;
(c)the reasons for the delay, including:
(i)inherent time requirements of the case;
(ii)actions of the accused;
(iii)actions of the Crown;
(iv)limits on institutional resources;
(v)other reasons for the delay; and
(d)prejudice to the accused.
[26] In this case, the length of the delay, the inherent time requirements of the case, the actions of the Crown, and any potential prejudice to the accused are particularly relevant.
[27] The charges were laid in January and February 2021. The proposed new trial date is 2 May 2023, the time between being approximately 27 months. In terms of delay, Blanchard J in R v Harmer stated:10
...delay which has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge.
[28] However, the Courts have also recognised that certain types of trials require significant preparation time, and that significant delays of 19 months or over three years have been seen as justifiable on the basis of complexity.11 It is not in dispute that these proceedings are complex, involving a number of co-defendants, party
10 R v Harmer [2008] NZCA 296 at [130].
11 See R v Harmer [2008] NZCA 296; and M (CA427/11) v R [2012] NZCA 270.
liability, significant amounts of disclosure, and serious alleged offending. The trial can be expected, when it occurs, to take place over as much as eight weeks, involving a number of witnesses.
[29] I am not satisfied that the Crown has caused undue delay by failing to submit their request for mutual assistance within an appropriate timeframe. On the material before me, it is clear that their request for mutual assistance is substantial and would have taken significant time to prepare.
[30] As Ms Carter noted, the various defendants were arrested over a period of time and the original trial date was set before some of the defendants were even arrested. The application was reviewed by Crown Law for some weeks prior to being formally submitted to the Deputy Solicitor-General for formal consideration. Given the breadth of the application that is unremarkable. I do not accept the categorisation by Mr Lithgow of their mutual assistance request being akin to a ‘fishing-expedition’ or a ‘drift-netting’ exercise.
[31] There is a rational basis for the information sought and it is potentially relevant to issues that will arise in the trial. However, even if the request was justified and not tainted by unavoidable delay, it is possible that it may result in the trial being unduly delayed, which would result in the defendants’ rights under s 25 NZBORA being prejudiced.
[32] A consideration of actual prejudice is therefore required. Little prejudice would be suffered by those defendants who have been granted bail as of today’s date. There is obvious potential prejudice to those in custody. Any remedy for an accused for delay in coming to trial must provide a reasonable and proportionate response to that delay.12 Where a defendant is convicted, a reduction in sentence may be an appropriate remedy.13
[33] A stay is not a mandatory or even a usual remedy. Staying proceedings is likely to be appropriate only if delay has been egregious or there has been prosecutorial
12 Williams v R above n 8 at [18].
13 See Elaheebocus v The State of Mauritius [2009] UKPC 7; and Williams v R above n 8 at [22].
misconduct.14 That is not the case here. If any of the defendants is acquitted then there is the possibility of monetary compensation.
[34] Mr Lithgow submitted that the primary remedy for the adverse effects of a stay on his client was severance and that the trials of those defendants who wished to proceed in May of this year should be severed from those who did not oppose the adjournment sought. Ms Carter opposed severance noting the commonality of evidence as between all defendants, the significant duplication that would be caused by severance, the additional stress caused to the victim’s family and the risk of perverse verdicts.
[35] Given the interconnected nature of the factual scheme of the alleged offending I am not persuaded that severance is an appropriate option for those defendants that remain in custody. The interests of justice require that each of the party’s guilt, or absence thereof, is determined in the same context in which the alleged offending occurred; that being together.
[36] In my view, an adjournment is justified. This is as a result of the complexity of the case, the likely probity of the mutual assistance evidence, the Crown being without fault, and the fact that the delay is not wholly unjustifiable on a purely temporal view. It is an available conclusion when considering the requirements set out by authorities discussed above.
[37] However, it is necessary to try and balance the interests of the defendants that will be adversely affected by that delay. One way of doing this is to fix a date by which any information obtained by the Crown pursuant to the mutual assistance request is to be provided to the defendants. I fix that date as being 20 December 2022.
[38] Ms Carter raised the prospect of unfairness to the Crown should the information only be able to be provided a short time after that deadline. At present, we do not know what information is likely to be received, its relevance and the time that analysis of it may take. If, as postulated by Ms Carter, the evidence is made available only a short time after that date and is of such a nature that there is no
14 Williams v R above n 8 at [18].
significant prejudice to the defendants in amending that date, then the Crown will be able to apply to vary that date.
Result
[39] Adjournment of the trial until 1 May 2023 granted. The Crown is directed to provide the defence with such information as may be obtained from the mutual assistance request no later than 20 December 2022.
Churchman J
Solicitors:
Crown Solicitor, Wellington Paino & Robinson, Upper Hutt Ord Legal, Wellington
Counsel:
R M Lithgow QC P J Knowsley
V Nisbet
G Fairbrother A Shaw
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