R v Yates
[2017] NZHC 1605
•12 July 2017
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2016-029-392
[2017] NZHC 1605
THE QUEEN v
RAWDEN JAMES YATES CLARISSA JANE YATES
KYLE LEONARD OʼCALLAGHAN
Hearing: 11 July 2017 Appearances:
M B Smith and J P R Scott for Crown N Leader for R Yates
D Blaikie for K OʼCallaghan A Dooney for C Yates
Minute:
12 July 2017
JUDGMENT OF LANG J
[on pre-trial issues]
This judgment was delivered by me on 12 July 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
R v YATES & OʼCALLAGHAN [2017] NZHC 1605 [12 July 2017]
[1] The purpose of this judgment is to record the outcome of several issues I was required to consider yesterday.
Applications by Crown to add an alternative charge
[2] During the hearing yesterday the Crown sought leave to add an alternative charge against all three defendants. The new charge was one of wounding with intent to cause grievous bodily harm. No defendant objected to the application. The application was accordingly granted.
[3] Later in the day the Crown sought leave to amend the charges against Mr Yates by substituting an alternative charge of wounding with reckless disregard for the safety of another. Leave was granted and Mr Yates pleaded guilty to that charge. He has been convicted and remanded in custody for sentence on that charge.
[4] Mr Smith advised on behalf of the Crown that the other defendants will now face the same charge as that to which Mr Yates has pleaded guilty.
Admissibility of evidence of Senior Sergeant Ryan
[5] Senior Sergeant Ryan has produced a statement in which he talks about a meeting he held on 17 February 2016 with Kimble Moore, who was a member of the Tribesman gang, and Adrian Tua, who was a spokesperson for Black Power. The two men went to the Kaitaia Police Station on that date in order to reassure the police that gang tensions were being managed by the two gangs following the shooting in Archibald Street on the morning of 12 February 2016.
[6] The Crown seeks leave to call this evidence in order to highlight the tensions between the gangs that formed a backdrop against which the shooting of Mr Waenga occurred.
[7] The evidence in question relates to events that occurred after the incident giving rise to the charges, and in my view is irrelevant to the issues the jury will be
required to consider. The balance of the evidence to be called by the Crown is likely to leave the jury in no doubt that the incident they are considering occurred against a backdrop of gang tensions. I therefore rule the evidence inadmissible.
Evidence of Detective Clayton
[8] Detective Clayton gives evidence about the police investigation into the disappearance of Mr Moore in mid-March 2016. That issue is irrelevant to the issues raised in the present proceeding.
[9] Detective Clayton will also give evidence about efforts made by the police to locate Mr Rawden Yates during March and April 2016. During that period Mr Yates was subject to a warrant for his arrest in relation to other offending, and his photograph was evidently broadcast and published in the media. Those facts are also irrelevant to the issues raised in the present proceeding.
[10] Detective Clayton can give evidence regarding the date of Mr Yates’ arrest, and the arrests of Mr O’Callaghan and Ms Clarissa Yates. He can also give the evidence set out in paras 32 to 45 of his brief of evidence. This relates to the recovery of firearms and bullet fragments, and to an electronic recording of the incident giving rise to the present charges.
[11] The matters referred to in paras 47 to 49 of the brief of evidence relate to the police investigation, and are irrelevant to the issues to be determined at trial.
Application by the Crown in respect of the mode of evidence by which witnesses are to give their evidence
[12] The Crown seeks an order that numerous witnesses for the Crown should be permitted to give their evidence from a remote location either by audio visual link (AVL) or by CCTV. The material filed by the Crown in support of the application satisfies me that grounds for the application have been made out. Many of the witnesses have indicated an extreme reluctance to become involved in giving evidence. Some say that they are not prepared to give evidence under any
circumstances, whilst others say they would only be prepared to give evidence if they could do so from outside the Courtroom.
[13] I am satisfied that any Crown witness who wishes to give evidence from a remote location via AVL should be permitted to do so. I have already taken preliminary steps to ensure that an AVL link from Kaitaia will be available for those witnesses who wish to avail themselves of this mode of giving evidence. The police will need to nominate a person or persons who will be responsible for liaising with the Ministry of Justice so that witnesses can present themselves at the Kaitaia District Court at a nominated time and be taken from there to the remote location.
[14] A number of practical issues will obviously arise. These include the need to provide counsel for the Crown with an opportunity to speak to witnesses by AVL link privately before they give evidence. Those matters should be capable of resolution by agreement and through liaison with those responsible for setting up the AVL link.
[15] The Crown’s application is not opposed by either of the defendants. Mr Blaikie has made the point, however, that the defence should also have the ability to have defence witnesses give evidence by AVL. I accept that this is a correct as a matter of principle. Any practical issues that arise in this context will need to be dealt with during the course of the trial.
Objections to evidence given by Crown witnesses
[16] I now set out my tentative views in relation to those parts of the evidence in respect of which the Crown seeks a ruling as to admissibility. I reserve leave to both the Crown and the defence to make further submissions in relation to these should they wish to do so prior to the witnesses giving evidence.
Norma Dickens
[17] The defendants object to para 99 of Ms Dickens’ brief of evidence. In that paragraph Ms Dickens says that Clarissa Yates made a cellphone call to “Boy”. Ms Dickens could only give that evidence if she actually saw Ms Yates make the call in
question. If she did not, it would be a matter of inference for the jury to determine whether Ms Yates made the call to her brother.
Shinella Simeon
[18] Virtually all of Ms Simeon’s brief of evidence is inadmissible. The only exception will be conversations Ms Simeon has had with Ms Yates. Although she refers to these at para 2 of her brief of evidence, the only paragraphs of her brief that deal with these are paras 20 to 27. Paragraph 31 may be admissible if Ms Yates was present during the discussion referred to in that paragraph.
Dezelle Simeon
[19] Large parts of Ms Simeon’s statement taken on 12 May 2016 have been redacted.
[20] The only admissible portion of her evidence appears to be the last paragraph on page 8 and the first paragraph on page 9. These relate to statements Clarissa Yates is said to have made to Ms Simeon regarding the shooting in Archibald Street.
Moet Walker
[21] Large portions of Ms Walker’s statement dated 12 May 2016 have also been redacted. My initial impression is that none of the remaining evidence in Ms Walker’s statement is of any relevance.
Detective Bart Graham
[22] I do not see how any of the matters referred to by Detective Graham in his brief of evidence are relevant to the case against the remaining defendants.
Detective Jessie Beckett
[23] Similarly, I see no relevance in any of the matters contained in the brief of evidence of Detective Beckett dated 1 August 2016.
William King
[24] I see no relevance in any of the matters referred to in Mr King’s statement dated 14 May 2016.
Detective Sergeant Beatson
[25] Detective Beatson’s brief of evidence relates to issues arising in respect of the police investigation into the disappearance of Mr Moore. I do not see anything in his brief of evidence that would assist the jury in relation to the charge now faced by the remaining two defendants.
Lang J
Solicitors:
Crown Solicitor, Whangarei
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