R v Williams HC Auckland CRI 2007-404-6

[2007] NZHC 1987

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-0006

CRI 2007-404-0007

QUEEN

v

CHRISTOPHER DAVID WILLIAMS DALE ARTHUR WILLIAMS SHANE EDWARD WILLIAMS BRIAN SYDNEY MCLAUGHLIN JULIE KAREN NIBLETT

SCOTT JAMES CORLESS

JOHN MALCOLM TE MONI JOSEPH ABRAHAM ANAE JOHN IVAN SIMETI

KURA TIRINGA WILLIAMS

PHILLIP ROBARTS

Hearing:         18 and 19 July 2007

Appearances: PK Hamlin, NR Webby and S Petricevic for Crown

C Williams - No appearance

D Williams in person

L Cordwell for S Williams

G Gotlieb for B McLaughlin

G Bradford for J Niblett

L Cordwell (18 July) and P Dacre (19 July) for S Corless

A Speed for J Te Moni

L Brown on instructions from P Winter for J Anae

C Cato for J Simeti

P Tomlinson for K Williams

R Thomson for P Robarts

Judgment:      10 August 2007 at 4:45 pm

JUDGMENT OF ASHER J

This judgment was delivered by me on 10 August 2007 at 4:45 pm pursuant to Rule 540(4) of the High Court Rules

………………………………………..

Registrar/Deputy Registrar

………………………………………..

Date

R WILLIAMS AND ORS HC AK CRI 2007-404-0006  10 August 2007

Table of Contents

Paragraph Number

Introduction  [1]

The charges  [3]

History of the proceedings  [5]

The  jurisdiction  to  bring  proceedings  to  an  end  on  the grounds of delay

The rationale behind the right to be tried without undue delay

[15]

[18]

What constitutes “undue delay”?  [24] The delay in this case  [38] The length of the delay  [39]

The complexity of the case  [45] Type of delay  [47] Was there systemic delay?  [47] Was there prosecution or defence delay?  [55] Defence waiver of delay  [58] Trial Prejudice resulting from the delay  [61] The effect of the delay on the accused  [63]

Conclusion on whether there was undue delay  [71] The appropriate remedy  [76] The balancing exercise  [92] Factors in favour of a stay  [92]

Public interest factors against a stay  [101] Conclusion on remedy  [111] The Williams brothers  [111]

The accused in the second trial  [115]

Mr McLaughlin and Ms Niblett  [116] Result  [119] Appendix 1

Introduction

[1]      This is an application for the permanent  stay of criminal proceedings brought  by

11 accused, all of whom face trial later this year.  By the time their trials are completed they will have been under arrest and on bail in respect of these proceedings for approximately five years.  Despite three attempts, none of them has yet been tried through to a verdict.  Of those three attempts, the first failed because of an inability to empanel a full jury, the second because jurors approached an accused, and the third because a late voir  dire revealed a significant error by the police in obtaining the initial search warrant.  This resulted in an order excluding the search warrant evidence, including that obtained in subsequent searches.  There was then a partly successful appeal by the Crown against that order.

[2]      The result of this sequence of events has been a delay of approximately five years between arrest and trial for the accused.  Their counsel submit that this is too long for these accused.  They submit that the charges should be stayed.  The Crown, while acknowledging the unfortunate delays, submits that the proper administration of justice requires that the trials proceed.

The charges

[3]     The  accused  are  charged  with  crimes  relating  to  the  manufacture  of methamphetamine.   The five accused who were allegedly most involved, the brothers Christopher, Dale and Shane Williams together with Julie Niblett and Brian McLaughlin, have been charged with the manufacture of what was then a Class B drug, methamphetamine. Four others who on the Crown case were more on the periphery, are charged only with conspiracy to manufacture. There were originally more accused, but their numbers have been reduced for various reasons which it is not necessary to traverse.  Mr P Robarts who was an applicant has since been discharged for reasons not related to this application.

[4]      The police case centres on the activities of the three Williams brothers.  It arose from an extensive police operation known as “Operation Robot” whereby a number of properties were searched and numerous telephone and text  communications were  intercepted.   The accused were arrested in November 2002 following the execution of a number of search warrants and discovery of a number of methamphetamine laboratories at various premises.

Two searches six months apart of properties at Highgate Road and Ocean View Road in Auckland revealed chemicals and equipment consistent with the manufacture of methamphetamine.  Searches of other premises revealed materials and equipment that could be used in manufacturing methamphetamine.   It is the Crown case that the three Williams brothers were in charge of the methamphetamine operation.   A significant feature of the Crown case is extensive transcripts of telephone conversations and text messages between the three Williams brothers and the other accused.  These transcripts occupy many volumes and are one of the reasons why the trial was initially estimated to take eight weeks, that estimate later being revised upward.

History of the proceedings

[5]      To  understand  the  delay  in  this  case,  it  is  necessary  to  trace  the  unusual  and unfortunate history of the proceedings in more detail.   I set out now a general short chronology:

27 November 2002  First appearance by most accused. November 2002 to September 2003  5 pre-depositions – adjourned.

15 September 2003  Pre-depositions – depositions set down for 3 weeks in

February.

2February 2004  Depositions commence – run for 3 weeks, all accused are committed to trial.

28 April 2004  Call-over – trial and pre-trials set down. August 2004  Pre-trial applications and pre-trial conference.

6 September 2004  First trial due to commence – Dale Williams does not appear, Heath J adjourns commencement of trial until Dale Williams located.

10 September 2004  First   trial   proceeds   as   Dale   Williams   located   – insufficient  jurors to  enable jurors to be empanelled, trial adjourned.

6 October 2004  Call-over – trial date set down.

December 2004 to March 2005         Pre-trial applications, discharge applications.

4 April 2005  Second trial commences – runs for 7 weeks.

16May 2005  Christopher Williams is approached by jurors – jury is discharged and trial aborted.

May 2005 to August 2005                 Call-overs, pre-trial applications, discharge applications

– trial date set down.

22 August 2005  Third trial commences – runs for just over 2 weeks. September 2005  Application  to  challenge  admissibility  of  evidence

obtained during search of Patiki Road.

5 September 2005  Heath J rules searches unlawful and evidence excluded

– jury is discharged and trial aborted.

29September 2005  Heath J ruling excluding further evidence arising from search warrants.

4 October 2005  Crown files notice of appeal to Court of Appeal. October 2005 to May 2006  Call-overs – adjourned until Court of Appeal hearing.

18 May 2006  Court of Appeal hearing.

May 2006 to November 2006            Call-overs – adjourned awaiting decision from Court of

Appeal.

29 November 2006  Court of Appeal decision – reasons to follow.

13 December 2006  Call-over  –  discussion of setting  down  for  fixture  –

arrangements to be made.

14February 2007  Call-over – tentative trial dates confirmed and allocated for Trial A and Trial B.

7 March 2007  Court of Appeal delivers reasons for its decision.

[6]      As can be seen, there was some 14 months of delay from arrest until the depositions hearing on 2 February 2004.  Approximately nine months of this delay was a consequence of the need for the Crown to prepare its files for pre-depositions disclosure.  While the Crown case is not especially complex, it is undoubtedly cumbersome because of the nature of the interception  evidence  and  because  the  11 accused  have,  until  this  year,  all  been  joined together in a single trial.  The Crown explained the months of delay in providing disclosure by referring  to  the  need  for  the  very  extensive  recorded  telephone  conversations  to  be meticulously transcribed.  While the delay pending disclosure of approximately nine months seems to be surprisingly long, counsel for the accused ultimately made no specific criticism of this.

[7]       Following depositions the accused were committed for trial in February 2004.   The first call-over in the High Court took place on 31 March 2004.  There were then a series of

pre-trial hearings on various points relating to the evidence pending the first fixture in the

High  Court.    That  fixture  commenced  on  6 September 2004  before  Heath J.    This  was

21 months after the initial arrest.

[8]      When the first trial was due to begin, there were delays because one of the accused, Dale Williams, failed to appear.   He was in due course located and produced, but when empanelling of the jury finally took place later in the week, there were,  after  extensive challenges, insufficient jurors to form a jury and the hearing had to be abandoned.

[9]      A new trial commenced before Venning J on 4 April 2005.  This trial proceeded for seven weeks until on 16 May 2005 one of the accused, Chris Williams, was approached on a train by two jurors.   Because  it  was  likely that  the  jury had  been  contaminated  it  was discharged and the trial was discontinued.   No fault was placed on Chris Williams for this event.

[10]     A new trial date was immediately allocated for 22 August 2005.   This trial ran for over two weeks, before counsel for Dale Williams challenged the validity of a search warrant in a voir dire hearing.  The application widened in scope and resulted in rulings that the initial search of a property at Patiki Road was unlawful, as well as rulings on 29 September 2005 that evidence obtained as a consequence of the issue of the subsequent search warrants was also unlawful.

[11]     In total just over a year went by during which the three trials were attempted.  This was, in the circumstances, a short period.

[12]     The Crown appealed against Heath J’s evidential ruling on 4 October 2005 and the appeal was heard on 18 May 2006.  The decision (although not the reasons) was released on

29 November 2006.   Thus approximately 13 months was spent on the appeal period before the decision was released, being approximately seven months between appeal notice and a fixture, and approximately six months between the hearing and the decision.

[13]     There was then a call-over on 13 December 2006 to set a date for hearing.  The Crown elected to split the 11 accused so that there could be two shorter trials: one of the five accused charged with the  manufacture of  methamphetamine,  and  the  other  of the  other  accused

charged with conspiracy to manufacture.   There was some delay in obtaining a date that suited all parties, but on 14 February 2007 tentative trial dates were confirmed for the first trial to proceed on 27 August 2007 for seven weeks, and the second on 29 October 2007 for five weeks.  There has thus been a further delay of close to a year in arranging a fourth trial since the result of the appeal.

[14]     There were therefore four different periods of delay.  It took approximately 21 months to bring the charges to trial initially.  It then took approximately 12 months to go through the three attempts at trial, all of which were ultimately unsuccessful.  There was then a period of

14 months between the rulings of 29 September 2005 to the release of the Court of Appeal decision on 29 November 2006.  Finally, there has been a further period of between nine and eleven months between the release of the Court of Appeal decision and the date set down for the fourth trial.  That is a total delay between arrest and trial of 56 to 58 months.

The jurisdiction to bring proceedings to an end on the grounds of delay

[15]     There are two sources of the Court’s jurisdiction to bring criminal proceedings to an end on the ground of undue delay.  The first is the Court’s inherent jurisdiction to prevent an abuse of process: R v The Queen [1996] 2 NZLR 111 at 112; W v R (1998) 16 CRNZ 33; Holland v District Court at Auckland HC AK M1107/00 20 September 2000, Randerson J. This general jurisdiction can be invoked whether the delay has occurred between the alleged offence and the charges being laid or after the charges have been laid.

[16]     The second is s 25 of the New Zealand Bill of Rights Act 1990 (“the Bill of Rights”), in which it is stated:

25       Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a)      The right to a fair and public hearing by an independent and impartial court: (b)  The right to be tried without undue delay:

Section 25(b) relates to the right to be tried without undue delay, not the right to be charged without undue delay.  It applies therefore to the delay after arrest, although a general delay prior to arrest could be relevant background.

[17]     The delay referred  to  in these  applications  is only delay  following  the  laying  of criminal charges.  Matters relevant to delay prior to arrest are very different, and may involve delays in a complainant coming forward, or difficulties in identifying or finding the alleged offender.  These matters give rise to different policy and practical considerations to those that arise in this application.  A key matter in assessing delay after arrest, namely the effect on those accused of the restrictions of bail and the pressure of a pending trial, does not arise in assessing pre-arrest delay.

[18]     The  long  title  to  the  Bill  of  Rights  affirms  New  Zealand’s  commitment  to  the

International Covenant on Civil and Political Rights.  Article 9(3) of that Covenant states:

Anyone arrested or detained on a criminal charge shall be brought promptly before a Judge or  other  officer  authorised by  law to  exercise judicial power  and  shall  be entitled to trial within a reasonable time or to release….

(emphasis added)

The phrase “within a reasonable time” is also used in the Canadian Charter of Rights and

Freedoms.

[19]     The Bill of Rights therefore implicitly recognises the alternative wording adopted in Canada.  New Zealand Courts have treated the phrase “within a reasonable time” as having the same meaning as “without undue delay”: Martin v District Court at Tauranga [1995] 1

NZLR 491 (HC) at 498.  The two phrases express, although from opposite perspectives, the same concept of avoiding delays that are undue.  The concept of avoiding undue delay was put yet another way by Lamer J in Mills v R (1986) 26 CCC (3d) 481 at 560:

In effect, therefore, s 11(b) gives an accused person the right not to be tried once an unreasonable period of time has elapsed.

[emphasis in original]

For reasons that will be examined later, this last encapsulation is more controversial.

The rationale behind the right to be tried without undue delay

[20]     The right to a trial without undue delay, while  it  overlaps with and supports the guarantee of a fair trial referred to in s 25(a) of the Bill of Rights, was described by the Court of Appeal in R v Harmer CA 324/02 26 June 2003 at [130] as:

… a distinct right whose purpose is also to minimise pre-trial restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial.

[21]     It was noted in Du v District Court at Auckland [2006] NZAR 341; (2005) 22 CRNZ

505 at [20] that in the United States, the part of the Sixth Amendment that protects a speedy trial right has been said to prevent the abrogation of three significant constitutional values:

1.The abridgement of liberty caused by pre-trial incarceration, and to a lesser extent restrictive bail conditions.

2.        The anxiety accompanying public accusation or the threat of punishment.

3.        Impairment to the ability to conduct a defence. (Smith v Hooey 393 US 374 (1969), at p 378.)

[22]    A primary reason behind the unacceptability of lengthy delay in criminal trials irrespective of trial prejudice is what was referred to by Richardson J in Police v Smith & Herewini [1994] 2 NZLR 306 at 316 as the “substantial intrusion on personal liberty”, in a different Bill of Rights context. Here it is the intrusion on personal liberty involved in an accused having to await a criminal trial on bail. In Mills v R  Lamer J quoted the statement by Professor Amsterdam in “Speedy Criminal Trial: Rights and Remedies” (1975) 27 Stan L Rev 525 where he referred to the “overlong subjection to the vexations and vicissitudes of a pending criminal accusation.”   In another leading Canadian case, R v Askov [1990] 2 SCR

1199, Corrie J stated at 1219 that there was:

… no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial.  The time awaiting trial must be exquisite agony for accused persons and their immediate family.  It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven  guilty.    It follows  that  on  the same fundamental  level  of  importance,  all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time.

[23]     It is apparent that  delay, even if it  does not  prejudice a  fair  trial,  can cause the following hardship to an accused:

a)        On serious criminal charges there will be direct interference with the liberty of an accused who is, of course, presumed to be innocent.  This can be either in

the form of being held in custody, or by bail conditions that will affect daily life, and interfere with the freedoms of movement and association guaranteed by our Bill of Rights.

b)       An accused person awaiting trial on criminal charges faces daily the possibility of in due course being found guilty and being, in serious cases, imprisoned. This uncertainty is a hardship, and affects any ability to obtain new employment, travel, have children, and generally plan for the future.

c)       The very act of waiting for and being involved in a criminal trial requires the commitment of time and resources.  Even if an accused is on legal aid, there is the need to prepare, and there is an obligation to be present during the Court process.  That strain on time and resources increases as a trial approaches.

What constitutes “undue delay”?

[24]     The issue of what is undue delay and whether it can give rise to a stay in the absence of prejudice to a fair trial has been controversial, and the Court of Appeal judgments on this issue in Martin v District Court at Tauranga [1995] 2 NZLR 419 follow different themes. The issue of whether delay can be undue without specific trial prejudice has particular importance in this case because it is common ground that there is no specific trial prejudice.

[25]     It is prudent to record at the outset that in most of the delay cases a reference to prejudice means specific prejudice to the trial process.   This is to be distinguished  from general prejudice to the trial process resulting from the effluxion of time and the prejudice to freedom and the ability to lead a normal life that can be suffered by those who are awaiting trial for a lengthy period.  Unless stated otherwise, I will use the word “prejudice” to signify specific prejudice to the trial process rather than general prejudice resulting from the passage of time or from interference to the liberty and quality of life of the accused, which I will discuss later.

[26]     In the United Kingdom, as I will discuss later in my judgment in relation to remedy, it has been decided that a stay should not be granted for delay in the absence of trial prejudice.

It is, however, clear in New Zealand following Martin v District Court at Tauranga that there can be undue delay where there has been no prejudice.

[27]     In Martin v District Court at Tauranga (CA), Cooke P at 423 referred to the concept of “presumptively prejudicial” delay. It is clear from his judgment that delays of a certain order can be regarded as unacceptable, irrespective of specific trial prejudice, and that prosecutorial contribution to the delay can be highly relevant. He observed that factors such as the terms of bail, and the complexity of the case could be highly relevant in assessing whether the delay was undue: at 421. He stated at 426:

I would not at the present stage under the Bill of Rights regard delays of the order exemplified in the present case [17 months] as necessarily beyond the pale. It is the contribution from the prosecutor that tips the balance in this case.

[28]     Casey J quoted with approval a statement of Lamer J in Mills v R at 544:

Secondly, actual prejudice is,  therefore,  irrelevant  when  determining unreasonable delay.  Actual prejudice will, however, be relevant to a determination of relief as will be hereafter explained.  Prejudice to the liberty and security of the person, the former objectively ascertainable and the latter presumed, must be kept to a minimum if the presumption of innocence is to be respected.

Casey J particularly emphasised the affront  to human dignity caused by drawn out  legal processes, and stated that considerations of prejudice (or the lack of it) were more naturally relevant to the question of remedy: at 430.

[29]     Hardie Boys J appeared to accept that delay without prejudice could be undue.  While he observed that a 15-month delay between depositions and trial would not necessarily be a breach of s 25(b), he held that the unjustified action of the prosecutor in refusing a fixture had made it so, even without a finding of trial prejudice.   He noted that “the fact that delay is systemic does not justify it”: at 431.

[30]     Richardson J and McKay J held that it was not necessary to decide whether prejudice to the accused was a relevant factor under s 25(b): at 426, 434.  However, both Judges agreed with the others that the delay was undue even though there was no evidence of trial prejudice.

[31]     Subsequent  New Zealand decisions  have  firmly put  to  one  side  the  existence  of prejudice as a necessary aspect of undue delay (for instance Holland v District Court at

Auckland  HC  AK  M1107/00  20 September 2000,  Randerson J),  but  adopted  a  cautious approach to prescribing what are acceptable time limits.   Thus in R v Harmer CA 324/02

26 June 2003 at [130] Blanchard J stated:

Consequently, 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. The courts in this country have proceeded with some caution in this area. This Court has declined to prescribe standard time limits which, when exceeded, will trigger an inquiry or give rise to a presumption of prejudice or unusual hardship to the accused: see R v B; R v Parkes (1995) 13 CRNZ 377, 380. Any such prescription has been thought to be a matter best left to Parliament.

[emphasis added]

And at [131]:

Where the delay can be said to be undue despite not affecting the fairness of the trial therefore falls to be determined on a case by case assessment of particular circumstances.   The length and causes of delay must be considered; see Martin v District Court at Tauranga at p 424.

[emphasis added]

[32]     In Graham v District Court at Blenheim [2007] NZAR 32, the 22-month period from first appearance to trial was held to be excessive. There was no prejudice and no prosecution fault, as the delay had been caused by a temporary increase in the backlog of criminal cases in the Blenheim District Court. Nevertheless, despite the lack of prejudice, the delay was held to be undue. The delay in waiting for a fixture was categorised as systemic. The Court’s view at [46] was that a trial ought to have been disposed of within 12 months of arrest. The

22-month delay, almost double that considered to be appropriate, was regarded as excessive. Cooke P’s comment in Martin v District Court at Tauranga at 421 was quoted:

Still, the bail terms were quite restrictive and the case itself was not one of much complexity.   These factors are highly relevant to whether subsequent delay can be excused.

The Full Court in Graham v District Court at Blenheim weighed  in particular the gross inconvenience caused to the accused by his loss of freedom of movement and his requirement to stay in New Zealand when his business and home and partner were in Australia.   The consequences of the period in New Zealand on bail had included the accused  losing his Australian partner, the loss of his job, the inability to complete a diploma course which was discontinued and damage to a promising career in martial arts.

[33]     Therefore I  proceed on the basis that  delay without  prejudice  to  a  fair  trial  can nevertheless be undue delay in terms of s 25(b).  In deciding whether there is undue delay an assessment of the causes and the effects of the delay is required.

[34]     Martin v District Court at Tauranga (CA) has been treated as a leading case on undue delay, both here and in the United Kingdom.  In that case the majority of the Court of Appeal adopted and applied the Canadian case of R v Morin (1992) 71 CCC (3d) 1; [1992] 1 SCR

771 where it was stated by Sopinka J at 13;787:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.  As I noted in Smith, Supra, [I]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’ (p 1131).  While the court has at times indicated otherwise, it is now accepted that the factors to be considered  in analysing how long is too long may be listed as follows:

1.        The length of the delay;

2         waiver of time periods;

3.        the reasons for the delay, including

(a)       the inherent time requirements of the case; (b)   actions of the accused;

(c)       actions of the Crown;

(d)      limits on institutional resources, and

(e)       other reasons for delay; and

4.        prejudice to the accused.

This statement is often quoted in New Zealand delay cases.

[35]     Although the appeal was upheld, the first instance judgment in Martin v District Court at Tauranga [1995] 1 NZLR 491 (HC) remains a relevant and strong authority as recorded by the editor of the New Zealand Law Reports, as there was additional information before the Court of Appeal warranting a different conclusion. In the High Court, Blanchard J observed at 499, relying on jurisprudence relating to the equivalent provision in the European Convention, that three factors could be regarded as critical:

a)        The complexity of the case (both factual and legal issues);

b)        The conduct of the accused;

c)        The conduct of the authorities (including judicial authorities).

[36]     It is clear from these decisions that the contribution to the delay by the acts of either the prosecutor or the accused will be relevant in deciding whether delay is undue.   If, for instance, the prosecution has substantially contributed to the delay by, for instance, refusing a fixture as in Martin v District Court at Tauranga, the delay is more likely to be found to be undue.  If, on the other hand, an accused has caused the delay by, for instance, unnecessary pre-trial applications or by seeking adjournments, then any delay is less likely to be found to be undue.  Where charges are more serious, a greater period of delay will be tolerated: Martin v District Court at Tauranga (HC) at 507; Graham v District Court at Blenheim [2007] NZAR 32 at [74]. This factor is also relevant in considering remedy, a matter addressed later in this judgment.

[37]     The  need,  however,  not  to  be  too  doctrinaire  in  assessing  undue  delay  was demonstrated in Canada in R v Askov (1990) 74 DLR (4th) 355 where a statement as to the limits of acceptable delay lead to the staying or withdrawing of over 47,000 charges in Ontario alone (R v Morin at 11).

The delay in this case

[38]     The cases referred to show that in assessing whether delay is undue, the following matters are relevant:

a)        The length of delay;

b)        The complexity of the case;

c)        The type of delay;

i)         Was there systemic delay?

ii)        Was there prosecution or defence delay?

d)       Defence waiver of delay;

e)        Trial prejudice resulting from the delay; and f)       The effect of the delay on the accused.

I now proceed to relate these particular matters to the facts of this case.

The length of the delay

[39]     It is difficult to escape the stark question of whether, in the particular circumstances of this case, five years is too long, or is at the end of the day reasonable and not undue

[40]     The accused still face at least a number of months of delay before the first trials will be concluded.  The first five accuseds’ trial starts on 27 August, and is unlikely to finish until early October.  Those who are found not guilty will not be involved in any further processes. Those who are found guilty will still face sentence later in the year. The other five, whose trial starts on 29 October, will not have a result until early December and will then face sentence, probably in the following year.

[41]     This delay of approximately five years is extraordinary.   I set out as Appendix 1 a table  which  summarises  delays  in  a  sample  of  cases  since  the  enactment  of  s 25(b). Reference is made in the table to the seriousness of the charges and the maximum penalty faced by the defendants, the reasons for the delay and possible prejudice, and noting as far as possible the delay as a proportion of the total sentence on the most serious charge.   These comparators are undoubtedly somewhat arbitrary and in themselves should not be given too much weight, but do provide a context in which to consider the current delay of five years.

[42]     The cases referred to in the Appendix confirm that there appear to be only three cases where a stay has been granted without there having been prejudice or fault by the prosecution, namely Graham v District Court at Blenheim; Daga v The District Court at Auckland HC AK CIV2003-404-3329 24 October 2003, Rodney Hansen J; and R v Hunter [2007] DCR 432. However, the delay in this case exceeds the delay in  the nearest  comparable case by a

substantial margin.  Most periods between arrest and the first trial referred to in the table are in the 18 to 30 month area.   There have been a number of cases where lengthy periods of delay without prejudice or prosecution delay have been held to be not undue: R v B [1996] 1

NZLR 385: 21 months; R v Haig [1996] 1 NZLR 184: 12 months; R v Coghill [1995] 3

NZLR  651:  24  months;  and  R  v  Harmer:  19  months.    In  Graham  v  District  Court  at Blenheim, where the delay was 22 months from arrest to the proposed date of trial and the stay application had been heard in the District  Court on the date when the trial was to commence, the delay was held by the High Court to be undue.  In Daga v The District Court at Auckland the delay was 31 months in relation to a simple trial of a charge of threatening to kill, and in R v Hunter the delay was 30 months in relation to a relatively simple charge of wilfully attempting to obstruct the course of justice (with elements of pre-trial delay).   In Graham v District Court at Blenheim and R v Hunter, the delay in issue was delay between arrest and the first trial and not, as here, the delay between the arrest and a trial following three aborted trials and a lengthy appeal.  However, in Daga v The District Court at Auckland the undue delay involved four fixtures that were adjourned, three times for systemic reasons and once because of the applicant’s ill health. The 30 months delay was held to “far exceed” acceptable standards and it was observed that the case should have been accorded more urgency: [43].

[43]     The closest in time where a stay was refused was R v Harder HC AK CRI 2003-404-

000291 5 February 2004, Williams J, where 39 months had expired and where the accused had contributed to the delay.   The closest in time where a stay was allowed was Auckland District Court v Attorney General [1993] 2 NZLR 129 (CA) where 50 months had elapsed, and the prosecution had contributed to the delay by waiting for six months before applying to review the District Court decision to discharge.

[44]     The fact that no cases consider a delay of almost 60 months is some indication of how out of the ordinary such a delay is.  The overall impression derived from a review of all the cases is that there has been here an exceptionally long delay in reaching trial, one which, putting to one side notions of blame, is beyond what can be regarded as acceptable.

The complexity of the case

[45]     As I have already noted, this case is not unduly complex in that it does not involve a tangled web of facts, or complex technical or commercial issues.  It is a case that concerns what can be inferred from lengthy interception warrant evidence, transcriptions of text messages and the physical evidence discovered by the police when they executed search warrants.

[46]     It has been undoubtedly, however, a difficult case to bring to trial because of the presence of 11 accused.  To some extent this was avoidable, in that the step that has now been taken to split the accused into two trials could have been taken earlier.  Even then, with one trial involving five accused and the other trial involving seven accused there would always be some difficulties.  The first trial is now set down for seven weeks and the second trial for five weeks.

Thus, this was a case of moderate difficulty, where some allowance should be made for the inevitable delays in bringing a large number of accused to trial and where the trial process itself would, because of the volume of the evidence, be of relatively long duration.

Type of delay

Was there systemic delay?

[47]     The phrases “systemic delay” or “institutional delay” are sometimes used to indicate delay caused by processes within the Courts, in contrast to delay attributable to the actions of one or other of the parties.   There can be two different types of systemic or institutional delays: the first being ordinary delay that is simply inherent in the Court processes and where the resources available are adequate, and the second being delay caused by institutional error or a lack of adequate resources.

[48]     The first type of systemic delay, inherent systemic delay, is less likely to be found to be undue.  For instance, there is always likely to be some delay between seeking a fixture and a hearing, to  ensure that there  is adequate preparation time, that a Court  and  Judge  are available, and that the counsel involved are free to appear at the trial.  If there are appeals or

other contested decisions before trial, this can inevitably take time without any fault.   The second type of systemic delay, due to institutional fault or lack of resources, is more likely to be found undue.  It arises where there are for instance, insufficient Judges or Courts to hear cases, or actual mistakes in the Court  processes.    Such delays are  not  inherent  and are therefore avoidable.  An example of the second type of systemic delay occurred in Graham v District Court at Blenheim, where there were unusual resource problems in the Court which had led to the inability to get a prompt hearing, and in Daga v The District Court at Auckland where there was a failure to arrange an appropriate interpreter on two different trial dates.  As Hardie Boys J stated in Martin v District Court at Tauranga (CA) at 431, “The fact that delay is systemic does not justify it.” Here the delays that have occurred, which involve the inevitable waits for fixtures and delivery of judgments following a set of unusual events, have been largely inherent.

[49]     The initial 21 months from arrest was a long lead-up to a fixture, but the case was complex and police disclosure took approximately nine months.  The wait for the first trial following police disclosure was only approximately six months from the initial call-over in the High Court.  Given the substantial disclosure and the fact that an eight-week fixture had to be obtained which suited counsel for the then 11 accused, in the circumstances this initial wait was not exceptional.  Defence counsel have not suggested otherwise.

[50]     The delays between the intended first trial, where the jury was not empanelled, and the next two trials which began but were not completed, were relatively short, being seven months and three months respectively.  The total period for the three aborted trials, including hearing time, was 11 months, a remarkably short time.

[51]     The delay following the appeal of Heath J’s decision, being six months in obtaining a fixture in the Court of Appeal and five months in obtaining a decision, cannot be described as exceptional.  I do not accept some of the criticisms made by some of counsel for the accused of the Court of Appeal process.  A delay in obtaining a fixture of six months was long but not exceptional, and there is no evidence of defence counsel having pushed for an earlier hearing. The wait of approximately six months for the decision which was delivered on 29 November

2006 was again not exceptional.   Because there has been some confusion in submissions about the progress of the matter after the Court of Appeal’s decision came out (although not the  reasons),  I  have  examined  the  notes  on  the  Court  file.     They  show  that  at  the

13 December 2006 conference, following the release of the Court of Appeal’s decision two weeks earlier, the Crown was seeking fixtures for trial A and trial B.  The delay that followed through to the fixtures being firmly allocated on 14 February 2007 was a consequence of the need to provide for pre-trials, and the need to find trial dates that were convenient to all counsel.    As  it  transpired  the  actual  fixtures  were  set  down  on  14 February 2007,  still approximately a month before the reasons for the Court of Appeal decision were released.  It is therefore quite clear that the wait for the reasons for the decision of the Court of Appeal did not delay the setting down of the fixture.  As it turned out when those reasons were delivered, the case had proven to be one of considerable difficulty and significance, and indeed is a significant precedent to be considered later in this judgment.

[52]     The further delay of approximately one year from the decision of the Court of Appeal, in obtaining the latest trial fixtures, while long, cannot be seen as a failure of the system, particularly given the delay between December and February when the Court was endeavouring to accommodate pre-trial fixtures and find a date that suited all parties.   The wait that followed the February call-over for two long fixtures can be seen as inherent.

[53]     Some of the delay can be seen as delay caused by unusual circumstances giving rise to further inherent time requirements.  In particular the inability to empanel the first jury and the discontinuance of the second trial following the juror’s discussions with the accused can be seen in that category.   The very late application to  exclude the search warrant  evidence related only to the first search and the wider consequences were not foreseen by prosecution or defence.  Normally such issues are resolved in the pre-trial hearings which should occur before any trial begins.  For reasons in respect of which no blame has been alleged, this did not happen.

[54]     Overall the five-year period can be described as being inherent systemic delay.   It arose from an unfortunate combination of circumstances.   This is not to say that the performance of the Court systems could not be improved.   Some of the gaps between the crucial steps have been surprisingly long.   It may be that more urgency could have been shown as time marched on.  However, I do not discern any identifiable failure in the Court processes, and with the exception of some criticism by some counsel for the defence of the Court of Appeal delay, no such failure was suggested.  The systemic delay being inherent, it is less likely to be seen as undue.

Was there prosecution or defence delay?

[55]     Actions or inaction by the prosecution which can be identified as contributing to the delay are relevant when assessing whether the delay is undue.  For instance, the prosecution’s refusal  to  accept  a  fixture  in  Martin  v  District  Court  at  Tauranga  was  central  to  the conclusion reached by the Court of Appeal that there had been undue delay.   In Auckland District Court v Attorney General it was the six month delay by the Crown in seeking review of the District Court decision that was treated as decisive.  As I have noted, neither counsel for the accused nor the Crown when they presented their submissions, alleged against each other material error or fault contributing to the delay.  While I am surprised at some of the time periods that were allowed to elapse during disclosure and following the third trial, I accept that there was no identifiable prosecution error.  Thus prosecution delay is not a factor which contributes to any conclusion that this delay is undue.

[56]     While it was an error by the police that led to the finding that the search of the Patiki Road premises was unlawful, given the Court of Appeal’s later conclusion that most of the evidence could be admitted, which meant that a trial could proceed, it is not appropriate to place particular weight on this factor in deciding whether the delay was undue.  Further, in the cases that have placed weight on prosecution delay, the focus has been on the actual actions of the prosecutor, rather than any background actions on the part of the police or complainants prior to arrest.

[57]     I have already noted that some of the gaps between events have been surprisingly long, and it may be that more urgency could have been shown by all concerned.  In hindsight perhaps more could have been done, and hopefully will be done in future.   But I have not been asked to find fault, and I cannot point to any particular errors that can be taken into account as a cause of the delay.  Neither side has chosen to go down the track of blame, and perhaps wisely so, as the various events have the mark of serendipity rather than error.

Defence waiver of delay

[58]     It is also relevant to consider whether the defence have “waived the delay”, and the promptitude of any complaint by the defence based on delay.  This was particularly noted by Hardie Boys J in Martin v District Court at Tauranga (CA): at 432. He emphasised that an

application for stay might well fail if it was not made in a timely manner once the delay was apparent.

[59]     In this case, although these applications for stay were not lodged until earlier this year, some defence counsel have on earlier occasions in the proceedings referred to the fact of prejudicial delay.   There was no submission by the Crown that the defence had failed to complain in the way mentioned by Hardie Boys J.

[60]     I  conclude that  there is  no  particular  element  of the  defence’s  conduct  which  is relevant to the issue of undue delay.

Trial prejudice resulting from the delay

[61]     As noted earlier, the accused do not point to any specific prejudice to the accused’s ability to be fairly tried.  The lack of specific prejudice can be explained by the fact that the bulk of the evidence is mainly of record, being what was said in the intercepted telephone conversations or particular texts, or what was found when warrants were executed.

[62]     The accused do,  however,  claim general prejudice  in  the  sense  of the  inevitable erosion of memory that arises with the effluxion of time.   There will doubtless be some general prejudice in this sense.  It is inevitable that the accused, in having to respond to events that took place so long ago, will suffer some disadvantage.   Given that this case turns on interceptions and what the police observed, the ability of the accused to recall what actually happened so as to adequately respond will have unquestionably declined with the passage of time.  However, much longer periods of delay are tolerated and trials proceed when there has been delay prior to arrest, most commonly in historical sex cases.  This general prejudice is not in this case a significant factor in deciding whether the delay is undue.

The effect of the delay on the accused

[63]     I have already commented on the relevance of this factor in considering whether a delay is undue and how it was a matter of particular relevance in Graham v District Court at Blenheim.

[64]     Two of the accused have filed affidavits setting out the effects on them of the delay. Another has handed me a statement without objection from the Crown setting out those effects.   Initially all accused were subject to stringent bail terms.   Generally the bail terms required them to reside in a certain place, subjected them to a night time curfew, required them to surrender their passports so that they could not travel, and required them to report to a nearby police station, often up to five days per week.  Some of the accused also were required not to associate with certain other persons.  These terms were relaxed considerably by Heath J after his evidential ruling on 5 September 2005, but the basic requirements of a residence restriction and the surrender of a passport remained, and some accused were still required to report once a week.   The most onerous requirements applied throughout to the Williams brothers, who are seen by the Crown to be the most serious offenders.

[65]     Further, the accused Shane Williams and Kura Williams were remanded in custody for periods because of their failure to meet their bail terms.   Kura Williams is presently in custody, but that is because of other charges.

[66]     The imposition of bail on terms constitutes a substantial interference with personal liberty.   Its imposition is governed by the Bail Act 2000.   Bail on terms interfering with liberty of movement and association is generally necessary after arrest to ensure that accused persons attend Court as required.   If there are risks of reoffending, or association with or interference with witnesses, the imposition of bail can be seen as a reasonable limit on basic liberties, justified in a free and democratic society in terms of s 5 of the Bill of Rights and authorised  by  s 8  of  the  Bail  Act 2000.    However,  it  must  be  acknowledged  that  bail constitutes a substantial encroachment on to the right of freedom of movement guaranteed by s 18 of the Bill of Rights and the right to freedom of association guaranteed by s 17.  It may also interfere with the right to freedom of peaceful assembly guaranteed by s 16.

[67]     The  effects  of  the  imposition  of  bail  on  the  three  accused  who  have  provided information to the Court on this topic is informative.  Mr S Corless has filed a statement in which he asserts that he believes that he has served a sentence without having been convicted of a crime.  He is married and has children.  His passport has been confiscated from the outset and he has not been able to travel.  He has had no ability to take any sort of break or holiday away from the place where he was meant to report.   He has a business which he says has suffered.  He has lost contracts as a result of having to attend Court on inconvenient dates,

and because of police inquiries a significant client stopped its custom.   He has found it difficult to devote proper time and concentration to his work with the significant charges hanging over him.  The reporting has been onerous.  His family has suffered and he describes the period as the worst in his life.

[68]     Another of the accused, Ms K Williams, deposes that she had full time employment and a stable lifestyle when she was initially arrested, working as a dancer at a club known as the “White House”.  She says she has had difficulty in adhering to the curfews and reporting clauses and accepts that she breached those conditions on occasions which resulted in her being held in custody.  She became pregnant during her period of bail, and had to leave that child in Wellington when the trials in Auckland took place.  On her return to Wellington after the third trial her child was taken off her by Child, Youth and Family Services.   She is presently in custody because of other charges.   She states that she believes that having the charge hanging over her for the last five years has seriously affected her life and her relationship with her child.   She believes that it is at least partly to blame for the loss of custody of her child.  She feels that being subject to the proceedings for so long has led to her reoffending and states that it has been impossible for her to be a parent or to work and to have a normal life.  She explains that she was unable to go to the funeral of a close uncle who died in Australia.  She also complains that it is now much harder for her to remember the sequence of events relating to the alleged offending.

[69]     A third accused, Mr J Simeti, asserts that the charges have affected his health and ability to sleep in that he has developed a sleeping disorder during the course of the proceedings.  He feels that the charges have affected his relationship with his two sons and also with his former wife.  He states that he has not been able to gain proper employment with the prospect of a serious conviction hanging over his head.  One position that he did obtain had envisaged overseas travel and he could therefore not take it up.   He summarises his position as having had his life put on hold for five years.

[70]     The Crown has  not  sought to  challenge these statements.    While  not  necessarily accepting all the detail of what is said, I have no difficulty in accepting the general claims made, and the proposition that  living with these charges is a severe blight on the usual enjoyment of life and the ability to plan and move forward.   These adverse effects on the accused are a significant factor in considering whether the delay was undue.

Conclusion on whether there was undue delay

[71]     It is necessary to ensure a transparent approach to an application alleging undue delay, to distinguish between the decision whether the delay was undue and the decision as to possible remedy.  The considerations that relate to both matters inevitably overlap, but at this point I consider only the first matter.

[72]     I  have  found  that  this  case  is  not  unduly  complex.    The  five  years  of  delay  is exceptionally long, longer than any other comparable case dealing with delays following arrest. Of the 27 cases listed in Appendix 1, none has involved such a sequence of events or such a delay.  This case is unique in this regard.  The delays have been caused by a series of unfortunate circumstances, and while systemic, have  been largely inherent  in the  system given those circumstances.   They have not been caused by institutional errors or resource failures.  The delay that has occurred is, therefore, less likely to be seen as undue.  The delays have not been caused by errors in the conduct of the prosecution or the defence.  There is no trial prejudice. The delay may of course be coming to an end.   The trials and sentencing processes may be over by the end of this year or early next year.

[73]     However, there have been serious adverse effects on the accused who have had to conduct their lives while on bail and under the threat of conviction of methamphetamine charges.  The months ahead impose a further substantial ordeal for the accused, who it must be  recalled  are  presumed  innocent.    They will  on  yet  a  further  occasion  face  the  very substantial loss of their liberty involved in attending a lengthy trial, and being in Court every day and in the cells during the breaks.  They will be involved undoubtedly in great stress and anxiety.  And, of course, the cases may not finish with the expedition that is hoped for.  No trial has as yet been completed.  Even if a trial is completed, there is the prospect of further delays in the sentencing process and from appeals.

[74]     I conclude that the delay is unacceptably long for a case of this kind, and that it has caused undue interference with the rights of the accused.  I conclude that the delay is undue and warrants a remedy.

[75]     The question then arises as to whether a stay of proceedings is the appropriate remedy.

The appropriate remedy

[76]     I have concluded that there has been a breach of s 25(b) of the Bill of Rights.  Section

5 of the Bill of Rights states:

5     Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[77]     It  is  necessary therefore to  consider  what  remedy  is appropriate,  subject  to  such limitations as may be demonstrably justified.

[78]     In considering remedy, it is helpful to focus on what constitutes the breach of the Bill of Rights.  It is not so much the amorphous state of undue delay that is the breach, but rather the prosecution’s action in continuing to proceed with the hearing after an undue period has elapsed.  As Lord Hope stated in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC

72 at [99], it  is the prosecution’s “positive act  in continuing with the prosecution of the charges in a situation where it was clear that they could not be determined within a reasonable time” that is being impugned.

[79]     The Crown’s decision to continue with this trial can be understood, although it must be determined whether it can be supported.  The Crown itself has done nothing to delay the proceedings, and it is acutely aware of the public interest in bringing offenders to justice.  A great deal of resources have already been put into the trials that had to be aborted through no fault of the Crown.

[80]     A stay of proceedings is a remedy that is clearly available in New Zealand for undue delay, even where there has been delay without prejudice.  This is clear from the decision in Martin v District Court at Tauranga (CA) and R v Harmer where the Court of Appeal held that  delay which  does  not  prejudice  the  fairness  of  the  trial  can  become  undue.    It  is confirmed in the recent cases of Graham v District Court at Blenheim, Daga v The District Court at Auckland and R v Hunter where stays were granted where there was no prejudice. However, this is not the case in the United Kingdom.  The majority of the House of Lords in Attorney-General’s Reference (No 2 of 2001) held that for a stay to be granted for delay, trial prejudice would be required.  That position has been recently restated by the English Court of

Appeal in R v S [2006] 2 Cr App R 23 where it was held at [21] that no stay should be granted in the absence of serious prejudice to the defence such that no fair trial can be held. The different approach must be seen in the context that article 6 of the European Convention for the Protection of Fundamental Rights and Freedoms combines the concepts of the right to a fair trial and trial with undue delay in the single statement “everyone is entitled to a fair and public hearing within a reasonable time”. Unlike the New Zealand Bill or Rights 1990, the Convention does not have a separate statement of the right to a fair trial and the right to trial without undue delay.

[81]     The concept of weighing the seriousness of the charges in assessing an undue delay claim has been established for some time: Martin v District Court at Tauranga (HC) at 507; Graham v District Court at Blenheim at [74]. A discretionary approach to remedy is now established in New Zealand in relation to search and seizure breaches of the Bill of Rights. In R v Shaheed [2002] 2 NZLR 377 (CA) it was held that the prima facie rule of exclusion of evidence obtained in breach of the Bill of Rights did not apply and that rather, a balanced and proportionate approach to remedy was required: at [26].   Indeed, in relation to improperly obtained evidence, this proportionate approach to exclusion is now enshrined in s 30 of the Evidence Act 2006.

[82]     There was a difference in Martin v District Court at Tauranga (CA) between Cooke P and the other four Judges as to whether a stay is the only appropriate remedy for undue delay. Cooke P at 425 observed that there was some incongruity in a suggestion that, although undue delay had been found, the state should continue with a prosecution and, even it resulted in a conviction and sentence, accompany it with an award of damages. However, all the other Judges saw stay as just one of a number of remedies, and that approach has now been widely supported, particularly the statement of Hardie Boys J at 432 that “the right is to trial without undue delay; it is not a right not to be tried after undue delay.”

[83]     This statement was the subject of approving debate in Attorney-General’s Reference (No 2 of 2001).  Lord Bingham stated at [89]: “The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances.”  Blanchard J in the Court of Appeal in R v Harmer stated at [135]:

We add that, if we had come to the contrary conclusion, it does not follow that the remedy would have been the setting aside of the conviction. The freeing of a man found guilty of a most serious offence would have been an entirely disproportionate response to  delay  which was  not  causative of prejudice.  In  the  line  of  decisions culminating in Mills v HM Advocate [2002] 3 WLR 1597 the Privy Council has found troublesome the question of remedy for delay experienced by a guilty person. In Mills the remedy granted was a small reduction in sentence. We must leave for another day whether that would be an appropriate remedy in a case of this kind if undue delay were shown to have occurred. Since in the present case it was not, the only ground on which the sentence appeal was advanced before us has not been established.

[84]     The New Zealand approach and other approaches in the Commonwealth were subject to analysis by Winkelmann J in Du v District Court at Auckland at [53]-[74]. She concluded that it is appropriate for New Zealand Courts to be flexible as to remedy when a breach of s 25(b) is made out: [74]. Her approach was adopted in Graham v District Court at Blenheim at [68] where it was stated that the Court’s approach should be flexible and proportionate. R v Shaheed at [140] was quoted in Graham at [70]:

In New Zealand there has been an attempt to articulate a solution which would give primacy to the vindication of guaranteed rights but with some flexibility to recognise other societal interests; …

[85]     There is no doubt that a stay remains a primary remedy.  Cooke P’s statement at 425 that: “Generally speaking, it seems better to prevent breaches of rights than to allow them to occur and then give redress”, still has force.   The other remedies mentioned in Martin and other later cases are an award of damages and the prospect of a reduced sentence.

[86]     The alternative remedy of damages was described by Hardie Boys J in Martin (CA) at

432 as having “conceptual problems”.  Despite the Court’s decision in Simpson v Attorney- General [Baigent’s Case] [1994] 3 NZLR 667 there have been few cases in which a person who has suffered from a breach of the Bill of Rights has obtained meaningful damages. The current state of the law is uncertain: see the commentary in Geoff McLay “Why is Compensation an Insufficient Remedy” Paper presented to the Legal Research Foundation Seminar: Rights and Freedoms in New Zealand: The Bill of Rights Comes of Age, 27-28 July

2007.   The uncertainties of this area of the law, not to mention the practical difficulties involved in one of the accused bringing an action for damages, mean that damages can only be regarded as a very limited way of providing a remedy for breach of the Bill of Rights if a trial proceeds in the face of undue delay.   Further, Cooke P’s comment that there is some incongruity in giving a convicted and sentenced person damages remains valid.  Such a result

could be seen by some as bringing the system of justice into more disrepute than if a stay were granted.

[87]     The other alternative frequently referred to is a reduction of the penalty ultimately imposed on the accused who has suffered from the delay.  This in itself has difficulties.  In extreme cases a reduction in penalty might never adequately compensate an accused who has suffered from very long delay.   Moreover, the presumption of innocence must apply.   The prospect of a theoretical reduction in penalty will be of no comfort to an accused who has in the end been acquitted.

[88]     I do not, however, accept the submission of Mr Cato who appeared for Mr Simeti, that the right to trial without undue delay can only mean that a prosecution must cease where there has been such undue delay, and that in such circumstances there is a “jurisdictional barrier” to prosecution.  For the reasons articulated by Hardie Boys J in Martin (CA), such a reading of s 25(b) is not required, and Martin and the cases since do not support it.

[89]    It is realistic to view the question of remedy as being what is the appropriate proportionate response to the breach of the Bill of Rights.   The answer  is reached by a balancing process that gives appropriate weight not only to the delay and its effects but also the proper administration of justice, which has similarities to the approach in R v Shaheed in relation to improperly obtained evidence.  This takes proper account of what is referred to in s 30 of the Evidence Act 2006 as “the need for an effective and credible system of justice.” As Casey J stated in Martin (CA) at 432:

Further, to set at large a person who may be, perhaps patently is, guilty of a serious crime, is no light matter.  It should only be done where the vindication of a personal right can be achieved in no other satisfactory way.

[90]     It is necessary then to carry out the process of weighing the delay and its effects against the need for an effective and credible system of justice, or as Casey J put it, whether vindication of the breach can be achieved in any satisfactory way other than a stay.

[91]     In determining remedy I consider it appropriate here to assess the extent of the delay, the reasons for the delay, whether there are any elements of prosecution or defence error that have caused the delay and the effect of the delay on the accused.  Inevitably there will be a considerable degree of overlap between these considerations and the consideration of whether

there has been undue delay.  The factors that make delay undue will tend to weigh in favour of a stay.  These matters, which have already been considered, must be balanced against the seriousness of the charges and the public interest in bringing alleged offenders to trial and to avoid setting at large those who may be guilty of serious crime.

The balancing exercise

Factors in favour of a stay

[92]     I  have already referred extensively to  the extent  of the delay.    Five  years  is  an exceptionally long period for accused to have to wait for a trial.

[93]     In Auckland District Court v Attorney General at 138 it was noted by the Court of Appeal in upholding the permanent stay of criminal proceedings on the ground of delay, that in relation to any finite sentence imposed it is relevant that the accused would have become eligible for parole by the time the trial was actually going to take place.

[94]     Here the sentencing of all accused was likely to have occurred approximately three years ago, in November 2004, if the first trial had been completed.  In the next part of this judgment I refer to the likely starting points for sentence that the accused face.  If they had been found guilty and sentenced in November 2004, many of the accused would likely have been released by now assuming they were entitled to parole at the earliest available opportunity.   Those who were exposed to the longer sentence, the Williams brothers, may have been sentenced to approximately seven to ten years’ imprisonment as a starting point.  If that were to have been the sentence, they would have been released,  if given maximum parole, at some time this year or next year.  The other accused who are now in the second trial would have completed their time in prison as early as the end of 2005 if they had been sentenced to three years’ imprisonment.   Mr McLaughlin and Ms Niblett would have been released at some time last year if they had been sentenced to four years' imprisonment.  It is disturbing to think of some of the accused being subjected to the encroachments on liberty and stresses of a pending Court case for a period much longer than they should have served in prison if found guilty.   However, it must also be recognised that bail, despite its onerous nature, is much less of an interference with liberty than prison.

[95]     Prosecution delay would be a factor in favour of a stay.  For the reasons given it does not arise here.

[96]     It is relevant to consider the effect on the accused of the delay.  As I have commented, I have no  doubt that the accused have all suffered considerably over the last  five years awaiting trial.  It requires little imagination to perceive the stress and constriction on ordinary life involved in facing such charges and being on bail.  Without necessarily accepting every item of information in the material provided on behalf of the accused, I accept the general tenor of their pleas of suffering and inconvenience for what has been a very considerable portion of their lives.   It cannot be acceptable to right-thinking New Zealanders that the accused should have faced such lengthy delays and still face some further months of delay. This consideration indicates that the ordeal should end now for all accused.

[97]     An important matter in favour of a stay is trial prejudice.   Here there is no specific prejudice but as I have observed, there is likely to be some general prejudice caused by the effluxion of time.  However, it must be recognised that much longer delays than five years are tolerated in relation to pre-arrest delay, particularly in the case of historic sex crimes or the most serious types of crimes such as murder, involving events complaints that  are more memory dependent, with therefore a greater possibility of such prejudice.   This is not  a significant factor in favour of a stay.

[98]     I also accept the force of Mr Hamlin’s point that considerable delays are not unheard of when there are successful appeals to guilty verdicts.  He cited in particular the case of R v Barlow [1996] 2 NZLR 116 where Mr Barlow was arrested in 1994 and charged with double murders. After two trials which both ended in a jury disagreement, the Crown indicated that it wished to proceed with a third trial. The applicant moved for an order under s 347 of the Crimes Act for a discharge or for an order that the proceedings be stayed pursuant to the inherent jurisdiction of the Court. The Court held that the delay of 19 months from the accused’s arrest was insufficient to warrant its intervention.

[99]     A decision that 19 months’ delay while two trials had successfully proceeded was not undue delay is not of great assistance in this case where the charges are far less serious than a double murder and where the delay is three times as long.  However, I accept that in principle longer delays would be possible while a process of re-trials took place, following hung juries

or successful appeals and orders for re-trial.  However, there is a point at which the Solicitor- General will intervene and direct that the proceedings carry on no further.  In R v Barlow the Court of Appeal declined to consider the Solicitor General’s guidelines, which indicated that where a jury had been unable to agree in two trials a stay would be considered.

[100]   Finally, the need  for the Courts to require  high standards of systemic efficiency, referred to in Martin (CA) by McKay J as being “stringent and valuable” (at 434) is a factor in favour of a stay.  There has to be a strong sense of urgency on the part of all those involved in  bringing  a criminal case to  completion,  the prosecution,  the  defence  and  the  Courts, particularly when delays mount up as they did in this case.  It may be that in hindsight more could  have been done to process matters more quickly, particularly in the  first  eighteen months and the last two years.  While it is not possible to affix blame in this case, the fact that the Courts react to undue delay by granting a stay will make all persons involved strive to avoid undue delay.  Any pattern of not granting a stay in the face of undue delay could have the  unfortunate  consequence  of  not  encouraging  the  high  standards  required  by  Court processes and by s 25(b) of the Bill of Rights.

Public interest factors against a stay

[101] Proportionality involves a consideration of what was referred to by Professor Amsterdam in his article “Speedy Criminal Trial: Rights and Remedies” in (1975) 27 Stan L Rev at 525, 529 as the “windfall benefit of criminal immunity”.  The further point was made in Graham v District Court at Blenheim at [74] that New Zealand society has an interest in bringing to trial persons accused of criminal offending. This interest is proportionate to the seriousness of the charges faced by the accused. These considerations are traversed earlier in this part of the judgment, and are why the remedy of a stay is regarded as something of a last resort when there has been no prejudice.

[102]   R v Williams CA372/05 7 March 2007 was the decision that decided that the evidence from the later searches of the premises of the accused was admissible, following a process of balancing the breach of the Bill against the effect of the exclusion of evidence of a serious crime.  It was stated at [135]-[139] that a crime is considered serious if the starting point of any sentence is likely to be in the vicinity of four years or more or there are elements to public safety involved, such as the carrying of a loaded weapon in public.   Indeed in R v

Williams the actual crimes in this case were generally described as “serious”: at [198]. There was no detailed consideration of whether each of the crimes alleged against each accused in this case were serious, and the prime concern of the Court of Appeal in carrying out the balancing process was the assessment of the seriousness of the breach.

[103] The  most  serious  charges  laid  against  the  accused  are  manufacturing methamphetamine.  The five of the accused who are involved in the first trial face those more serious charges.  At the time of the offending methamphetamine was a Class B drug, and the maximum penalty for that offence was 14 years’ imprisonment.  Five of the accused, the three Williams brothers together with Brian McLaughlin and Julie Niblett, are charged with manufacturing methamphetamine.   Further, they, together with all the other accused, are charged  with  conspiracy  to  manufacture  methamphetamine,  which  carries  a  maximum penalty of 10 years’ imprisonment.

[104]   It is necessary to consider what the starting point of sentence would be for the accused if they were found guilty.   In assessing the starting points that the various accused face, Mr Hamlin  for  the  Crown  fairly  described  the  methamphetamine  laboratories  that  were discovered as being of a low to moderate order of commerciality.   No significant methamphetamine was found by the police.  The impression given by the summary of facts is of a  rather  disorganised  methamphetamine  production  enterprise,  although  one  that  was vigorously pursued.  The Crown acknowledges that the three Williams brothers were those who were allegedly most involved, with their co-accused in the first trial, Mr McLaughlin and Ms Niblett,  allegedly having a  lesser  “lieutenant” role  in the  manufacturing.    The other accused who will be involved in the second trial all allegedly had a peripheral involvement in the sense that they are not alleged to have been involved in the manufacturing process itself but rather in providing some sort of assistance.

[105]   The Crown, in a letter to counsel for the accused of 17 August 2004, set out its view on the sentencing range for the accused, assuming they entered a plea of guilty at that point. The sentences proposed ranged from seven to eight years’ imprisonment for the Williams brothers to three to five years’ imprisonment for those now to be tried in the second trial, who are accepted to have been on the periphery.  Five to six years imprisonment was proposed for Mr McLaughlin and Ms Niblett.   The Crown made the point, however, in respect of the Williams brothers only, that if they had been found guilty of the substantive manufacturing

counts, (which in their letter they propose might be withdrawn if there were guilty pleas), the appropriate final sentence that would be sought was 10-12 years imprisonment.

[106]   The Crown also  proposed  a  sentence  of six  to  seven  years’  imprisonment  for  a Mr Cheeseman.  Mr Cheeseman was seen as a person who was less central to the offending than the Williams brothers, but a senior lieutenant nevertheless.  He chose to plead guilty in

2005, and was sentenced by Venning J who presided over the second trial.   The Judge’s assessment  when  he  sentenced  Mr Cheeseman  was  that  the  operation  had   involved commercial manufacture over a long period of time, but that it was not particularly successful in terms of financial reward.  There were occasions when the manufacturing processes were not successful.  He considered that the appropriate starting point for Mr Cheeseman was five years’ imprisonment.   It  seemed,  therefore, that  the  Crown estimates of 17 August 2004 which involved six to seven years for Mr Cheeseman, were somewhat high.

[107]   I consider  in all the circumstances that  the likely starting  point  for the Williams brothers would have been approximately seven to eight years’ imprisonment, approximately four years’ imprisonment for Ms Niblett and Mr McLaughlin who were not as implicated as Mr Cheeseman, and approximately two to three years’ imprisonment for the other accused, Messrs Corless, Te Moni, Anae, Simeti, Robarts and Ms Williams.  This is on the assumption in each case that there were no discount for an early guilty plea, or particular aggravating or mitigating circumstances (which I am not able to assess in this exercise), and that the starting points were the same as the sentences.

[108]   On this analysis applying the test in R v Williams, the three Williams brothers face serious charges.  Ms Niblett and Mr McLaughlin are on the margin, and the other accused, Messrs Corless, Te Moni, Anae, Simeti and Ms Williams do not face serious charges.

[109]   I  consider  that  it  is  also  relevant  to  a  Court  in  exercising  its  discretion  on  an application for stay based on undue delay to consider the position of victims of the alleged crimes where they have suffered bodily injury.   Sections 7 and 8 of the Victims Rights Act 2002  require  a  victim  to  be  treated  with  courtesy  and  compassion,  and  for  a  legal response to a victim to be responsive to the victim’s needs.  In R v O [1991] 1 NZLR 347 at

351 the Court of Appeal noted:

In considering the exercising of its protected function the Court must take into account the need for fairness not only to the defendant but also to the complainant and the community.

[110]   There were no specific victims here, as there are in sexual violation or violence cases, but as the Court of Appeal commented in R v Williams at [135], drug offences are not victimless crimes.  Undoubtedly unidentified persons who receive methamphetamine when it is supplied are victims in a sense, as is the whole of society which suffers from the activities of  those  under  the  influence  of  methamphetamine.    However,  there  are  no  particular individuals who will harbour a sense of personal injustice if there is no trial.  In this case, this is not a factor against  a stay.   It  is neutral.   The nature of the crime  has already been considered in assessing whether in terms of penalty the alleged crimes are serious.

Conclusion on remedy

The Williams brothers

[111]   A stay of criminal proceedings is an extreme remedy, to be granted rarely.  However the delay has been very long.  There has been a breach of the Bill of Rights.

[112]   The three Williams brothers are charged with manufacturing methamphetamine.  The summary of facts shows a serious case against them, involving the deliberate and long-term creation and control of two functioning methamphetamine laboratories, and two places where materials  for the  manufacture of  methamphetamine  were  found.    The  allegation  is  they worked together closely, and had a network of associates they used for their criminal ends.  If the allegations are correct, the Williams brothers are serious criminals whose activities in producing methamphetamine will have caused the community serious harm.   If they are as hardened and committed to crime as the summary indicates, an outcome that saw them escape trial as a consequence of a series of events that turned on an unfortunate combination of chances, could be seen as damaging the credibility of our system of justice.

[113]   I do not regard the undue delay here as so extreme as to warrant such an outcome.  I have had no affidavits or memoranda from the Williams brothers setting out how bail has affected them, but I have no doubt that it has involved a severe interference with their daily liberty.  However, they face charges that are so serious that this interference with their liberty does not outweigh the public interest in having those who are charged with serious crimes

brought to trial.  It is a distinguishing feature of the case that there has been no prosecution error which might otherwise tip the balance.  The failures have been largely factors of chance and circumstance, rather than any prosecution or systemic fault.  The systemic delays can be seen as largely inherent.

[114]   In such a combination of circumstances a stay is not the appropriate remedy.   The outcome of the proportionality exercise is that the three alleged perpetrators of these serious crimes must stand trial.  Their applications are declined.  Nevertheless, they have been subject to undue delay and it will be open to them to pursue the other alternative remedies to stay, depending on the outcome of the trial.

The accused in the second trial

[115]   The other accused involved in the second trial are in a different situation.   On the Crown case the Williams brothers were the clear leaders and organisers.   They pulled the others in as associates to help them.   Those in the second trial, Messrs Corless, Te Moni, Anae, Simeti and Ms Williams are not  charged with serious crimes in terms of the R v Williams definition.   They are not charged with manufacturing methamphetamine and the Crown does not allege that their role was anything more than peripheral.  They are not alleged to have been involved in setting up or running methamphetamine laboratories, but rather are alleged to have assisted in some aspects.  In the ordinary course of events they could have expected  a  trial  within  two  years,  and  if  they  had  been  sentenced  to  three  years’ imprisonment, would have been long released.   Yet they will have been subjected to bail terms and the Court processes for five years, which is half the maximum sentence for the crime they face.  The stresses on them of the undue delay, the interference with their ordinary lives and their liberties, when weighed against society’s interest in an effective and credible system of justice, militate in favour of stay.  Despite the extreme nature of such a step, it is appropriate in these circumstances, and their applications are granted.

Mr McLaughlin and Ms Niblett

[116]   In relation to  Mr McLaughlin and Ms Niblett, who fall somewhat  in between the Williams brothers and those on the periphery, the result of the exercise is more balanced. Their role is alleged to have involved obtaining or looking after particular premises for the

Williams brothers that could be used for the manufacture of methamphetamine.   It is not suggested that they were actively involved in the acts of manufacture.   They are alleged to have had a subsidiary role, although a more significant one than the other five accused are alleged to have had.   The charges against them, given that they face potential sentences of approximately four years’ imprisonment, are on the borderline of serious on the R v Williams definition.  They also would have been long released by now if the trial had proceeded in the usual way.

[117]   In the letter of 17 August 2004 the Crown placed them in the same general category as the accused who are now in the second trial.  They appear to have been lured into helping the Williams brothers with the others.

[118]   I   conclude   that   the   outcome   of   the   proportionality   exercise   in   respect   of Mr McLaughlin and Ms Niblett is in favour of a stay.  That is the proportionate response to this breach of the Bill of Rights.  Their applications are granted.

Result

[119]   The applications for stay for Christopher David Williams, Dale Arthur Williams and

Shane Edward Williams are declined.

[120]   The applications for stay of Brian Sydney McLaughlin, Julie Karen Niblett, Scott James Corless, John Malcolm Te Moni, Joseph Abraham Anae, John Ivan Simeti and Kura Tiringa Williams are granted.  The charges against those seven accused are stayed.

…………………… Asher J

APPENDIX 1

Case            Total delay         Cause of delay            Specific prejudice?

Adverse effects?       Delay as proportion of max penalty

Result

Auckland District Court v Attorney- General1

Daga     v     District

Court at Auckland2

50   mths between charge and proposed trial date.

31   mths between charge and trial.

7-mth delay before Crown sought judicial review of DCJ  decision to discharge without conviction; delay in transferring proceedings; delay in filing to obtain hearing.

Insufficient time for fixtures; failure of court staff to locate interpreter; applicant’s ill health; failure to give trial priority when delay became clear.

No   specific  trial prejudice.

No       specific prejudice.

Entirely   possible that accused would now have already completed any finite sentence imposed timeously.

Accused  was refugee, delay impaired ability to establish new life; aggravated stress disorder and serious illness; bail conditions re travel imposed financial burden.

50      mths/8 years’ imprisonment (possessing cannabis                  for supply) (0.52).

31 mths/7 yrs (threatening to kill) (0.37).

Appeal allowed. Crown’s 7-mth delay was “fatal”.  Delay so undue and prejudicial that would be unfair to quash DCJ decision to discharge.

Stay granted.   Delay “far exceeded acceptable standards” for a relatively simple case.

Rv Hunter3            30         mths between charge and     trial,     in

addition to 11 mth pre-trial delay.

6 mths delay attributable to defence; fixture had to be vacated because of injury to complainant; systemic delays in securing new trial date.

No       specific prejudice.

None.                 30       mths/7 years’ imprisonment (wilfully attempting      to obstruct   course of justice) (0.36).

Stay granted.   Delay was unreasonable, especially given the pre-charge delay.

Police   v   Auckland

District Court4

To adjourn would mean 30- mth delay between laying informations

and trial.

Half of delay caused by Crown Solicitor’s delay in attempting to particularise indictments; inherent  systemic  delay in having material classified.

Defence witness had  since  moved to Canada.

“Far-reaching

effects   on   accused and family”.

30      mths/1 year’s imprisonment (making  copies of objectionable publication   for distribution) (2.5).

Application for review dismissed. Observed that Crown had to take responsibility   for many of the delays.

Du v District Court at Auckland5

28   mths between charge and trial.

Two firm trial fixtures missed because of Crown’s errors; possible administrative

constraints.

Eye-witnesses for defence had left NZ  or  could  not be contacted.

None.                 28       mths/7 years’ imprisonment (threatening   to kill,       among other       charges) (0.33)

Stay granted.   Delay unacceptable for “relatively simple case”.

Rv K6              27        mths between  charge

and trial.

12 mths due to systemic delay;  8  mths attributable to prosecution; 7 mths because of defence applications.

Psychological problems    caused by delay impaired ability to  conduct defence.

Delay     aggravated K’s alcoholism  and psychological problems.

27 mths/7 yrs (fraudulent use of a  document) (0.32).

Stay granted.   Delay was undue,  especially given that issues not complicated.

Graham  v   District

Court at Blenheim7

22   mths between arrest and proposed date of trial.

Mistake in charging; insufficient resources at Blenheim DC.

None.                 Required  to  remain in NZ though lived in  Australia:  lost job, relationship failed, career derailed,  lost firearms licences.

22     mths/14 years’ imprisonment (importing      5 tabs of class B drug) (0.13).

Stay granted.   Delay undue for what was a simple and straightforward case.

1 [1993] 2 NZLR 129 (CA).

2 HC AK CIV 2003-404-3329 24 October 2003, Rodney Hansen J.
3 [2007] DCR 432 (DC).

4 (1999) 5 HRNZ 419 (HC). Police sought judicial review of District Court Judge’s refusal to grant adjournment of the hearing.

5 [2006] NZAR 341 (HC).
6 [1996] DCR 75 (DC).

7 [2007] NZAR 32 (HC). G sought judicial review of District Court Judge’s refusal to stay criminal proceeding for undue delay.

R WILLIAMS AND ORS HC AK CRI 2007-404-0006  10 August 2007

Case            Total delay         Cause of delay            Specific prejudice?

Adverse effects?       Delay as proportion of max penalty

Result

Rv Kereama8          22         mths between arrest and trial.

14 mths due to systemic delay;  8  mths attributable to prosecution.

Defence witness had died in accident in the meantime.

None discussed.      22  mths/10  yrs

(burglary) (0.18).

Stay granted.   Delay was undue, especially given this was “comparatively

simple” case.

Martin  v  Tauranga

District Court9

17   mths between charge and trial.

“Unilateral and unjustified action” by Crown Prosecutor to vacate original trial date; systemic delay.

None.              Accused    on    very restrictive   bail conditions throughout.

17     mths/14 years’ imprisonment (sexual

violation) (0.1).

Stay granted.  The fact delay was attributable to prosecution made it unacceptably long  for simple though serious case.

R   v   Lawrence   & Taylor10

17   mths between arrest and trial.

8 mths due  to  systemic delay;  9  mths attributable to prosecution.

None discussed.    None discussed.       17    mths/life imprisonment. (sale of class A drug) (NA).

Delay clearly “excessive” and undue for what should be uncomplicated trial.

Cases where a stay of prosecution was refused

Case            Total delay         Cause of delay          Prejudice?       Adverse effects?       Delay as proportion of max penalty

Result

Rv Harder11           39   mths   since charge, retrial not then scheduled.

Inherent time requirements in very complex case; accused’s late  severance application and late pre- trial applications;  retrial for other accused.

Media    publicity during  period  of delay  about  case, but   did   not   in itself   mean   fair trial  not  possible; documentary records  countered fading memories.

Bail  conditions meant subject to nocturnal police checks;   could   not live with his young family; had to discontinue studies.

39     mths/10 years’ imprisonment (conspiring     to supply  class  B drug) (0.325).

Stay refused.

Yorke v Police12      31        mths between  charge

and trial.

Complexity of trials; building alterations at Rotorua Court:  pressure on court/judicial availability; need to adjourn because of  pre- trial publicity.

No trial prejudice.      Bail       conditions restricted accused’s employment.

31      mths/8 years’ imprisonment (possession    of cannabis             for supply) (0.32).

Stay refused.   Reason for delay was explainable, although delays considerable they were not “undue”.

Rv Hines13             29         mths between charge and trial.

Rv Te-Aotonga14       28         mths between arrest and date of trial.

4 mth delay attributable to   Crown   in   opening trial; rest of delay was unexceptional.

Judge   vacated   original trial             date                  because insufficient time     to complete  before Christmas;     first       trial resulted  in   hung  jury; earliest trial date rejected by   defence             due      to distance/witness difficulties.

Judge felt there was no particular prejudice.

No specific prejudice.

Accused had been in custody for various periods, but Judge did not consider this serious.

None:  bail conditions not onerous.

29     mths/14 years’ imprisonment (attempted murder,                   also wounding   with intent  to  cause GBH) (0.17).

28     mths/10 years’ imprisonment (attempted rape) (0.23).

Stay refused.   Delay was long but not unreasonable,

especially given accused had not complained earlier.

Stay refused. Complexities of dual naval and criminal Court jurisdiction necessitated long fixture; length of delay not out of the ordinary.

8 [1996] DCR 991 (DC).

9 [1995] 2 NZLR 419 (CA). See also the High Court decision in [1995] 1 NZLR 491.
10 HC AK T104/94 5 May 1995, Morris J.

11 HC AK CRI 2003-404-000291 5 February 2004, Williams J.

12 HC Rotorua T 991123 14 March 2001, Paterson J.
13 HC Palmerston North T1/95 28 June 1996, Williams J.
14 [2002] DCR 176.

Case            Total delay         Cause of delay          Prejudice?       Adverse effects?       Delay as proportion of max penalty

Result

Rv Grant15            27         mths between charge and trial.

Systemic court delays. Large number of witnesses   meant   could not readily be treated as reserve trial.

No     particular prejudice.

None.                 27      mths/7 years’ imprisonment (theft,        among others) (0.32).

Appeal dismissed. Delay was serious, but satisfied  no miscarriage of justice.

Rv Dow16           26        mths between    arrest

and trial.

Offender elected to be tried  by jury instead of summarily; “no blame could be attached to Crown Solicitor for the delays”.

No     particular prejudice:                case relied  on documentary evidence  rather than      witness recollection.

None: accused on bail with no conditions.

26      mths/7 years’ imprisonment (using

document with intent  to defraud) (0.3).

Appeal against conviction dismissed. Delay not so undue as would  warrant quashing the conviction.

Dreliozis v R17         25         mths between  charge

and trial.

Rv Coghill18           24         mths between charge and trial.

Rv B19                 P:     23     mths between arrest and trial. B: 21 mths between arrest and trial.

Rv Palmer20           21         mths between arrest and stand-by fixture.

Systemic time requirements; actions by defence; 2 mth delay by prosecution  filing defence to judicial review.

Hearings occurred with reasonable promptitude; complex proceeding; police acted with due diligence.

B: systemic: pre-trial application, lack of resources, trial backlog. P: “predominantly systemic”: lack of resources.

Late introduction of new charge by police; failure to  arrange  to   fix  new trial date due to mistakes and lack of diligence.

No     particular prejudice.

Early     publicity, but lapse of  time meant    now    no particular prejudice.

P:   no   particular prejudice.    B:  no particular prejudice.

No    significant prejudice.

None.                 25 mths/6 mths (assault                 on police, also dangerous driving,   failing to stop, resisting arrest) (4.17).

None discussed.        24      mths/10 years (party to indecency with boy under 12) (0.2).

None discussed.      P:    23    mths/5 years’ imprisonment (assault  with  a weapon)  (0.38). B:  21  mths/20 years’ imprisonment (rape) (0.09).

None discussed.      21      mths/2 years’ imprisonment (wilfully   doing indecent  act  in public                   place) (0.88).

Appeal dismissed. Delay out of ordinary for  simple,  Judge- alone defended case, but not undue.

Appeal  dismissed. Both sides had been acting legitimately and reasonably.

P: Appeal dismissed, observed to be “borderline” case.   B: Appeal dismissed.

Appeal dismissed, “in the context of the proceeding as a whole it does not warrant quashing the conviction.”

Dufty v Police21      20        mths between   laying

of  informations

and trial.

Fixtures vacated because particular counsel unavailable; no delay attributable to prosecution.

No     particular prejudice.

General   stress  and anxiety.

20      mths/5 years’ imprisonment (operating vehicle  causing injury) (0.33).

Appeal dismissed.

Sinnadury v Auckland District Court22

19   mths between laying informations

and      proposed

date of trial.

Time necessary considering quantity and nature of material seized and the need to copy and assess it.   No issue of prosecutorial delay or systemic inefficiencies.

No     particular prejudice.

S    suffered    great stress.

19      mths/1 year’s imprisonment (making  copies of objectionable publication   for distribution) (1.58).

Appeal dismissed. Complexity and volume of case meant delay not undue.

Rv Harmer23        19        mths between    arrest

and trial.

Inefficiencies  in  police investigation;

complexity    of     case;

offender’s         false

statement.

No     particular prejudice.

None discussed.      19    mths/life imprisonment (murder) (NA).

Appeal dismissed.

R v Repia24         19        mths    Court   and     judicial    No      particular   None discussed.      (information      Stay refused.

15 CA471/95 29 May 1996.

16 CA407/95 15 March 1996.

17 (1994) 12 CRNZ 548 (HC).
18 [1995] 3 NZLR 651 (CA).

19 [1996] 1 NZLR 385 (CA); also cited as R v Parkes (1995) 13 CRNZ 377.

20 CA329/95 15 March 1996.
21 [2004] DCR 424 (HC).

22 HC AK M1210/98 9 October 1998, Nicholson J.

23 CA324/02; CA352/02 26 June 2003.

Case            Total delay         Cause of delay          Prejudice?       Adverse effects?       Delay as proportion of max penalty

Result

between  charge and trial.

unavailability.            prejudice.  unavailable)

Holland   v   District

Court at Auckland25

17   mths between laying of information and entry of conditional

plea.

Referral of allegedly objectionable  material for classification (“inherent or  systemic”: [44]).

“No evidence of either specific or general

prejudice”: [49].

None discussed.      17 mths/6 mths’ imprisonment (knowing importation    of objectionable material) (2.83).

Stay refused.

Rust v R26              15         mths between laying informations

and trial date.

Rv Haig27             12         mths between    arrest

and     proposed trial date.

Systemic:  lack  of suitable  space;  backlog of cases.

Delay occasioned by problems with Court resources.

No     particular prejudice.

No     particular prejudice.

None discussed.        15      mths/14 years (sexual violation)

(0.09).

None discussed.      12    mths/life imprisonment (murder) (NA).

Appeal    dismissed. However,  delay  long enough to        require Crown to explain it. Appeal                   dismissed. Delay not undue given complexity       and number   of   witnesses involved.

24 HC Whangarei T 112/94 9 October 1995, Fisher J.

25 HC AK M1107/00 20 September 2000, Randerson J.

26 (1995) 13 CRNZ 621 (CA).

27 [1996] 1 NZLR 184 (CA).