Stephens v The Queen - [2017] NZHC 2341

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2017-442-17 [2017] NZHC 2341

BETWEEN
DYLAN GLEN STEPHENS

Appellant

AND

THE QUEEN Respondent

Hearing: 26 September 2017

Appearances:

A Goodison for the Appellant
J Webber for the Respondent

Judgment:

26 September 2017

JUDGMENT OF CULL J

Introduction and background

[1] Mr Stephens pleaded guilty and was convicted on 1 December 2011 of two charges of selling a Class C drug, 14 charges of supplying, offering or conspiracy to supply a Class B drug and one charge of possession of a Class B drug. He was sentenced by Judge Zohrab to two years and three months’ imprisonment.1 He has served this sentence without incident but now appeals, out of time, to have his conviction quashed.

[2] Mr Stephens’ prosecution was part of a police investigation into the Red
Devils gang, known as Operation Explorer. This investigation has been the subject of numerous cases before this Court, Court of Appeal and Supreme Court.2 The

1 R v Stephens DC Nelson CRI-2011-042-906, 1 December 2011.
2 R v Antonievic [2012] NZHC 2686; R v Antonievic (No 1) [2015] NZHC 230; R v Antonievic (No
2) [2015] NZHC 439; R v Antonievic [2015] NZHC 1096; R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806; Wilson v R [2014] NZCA 584; and Wilson v R [2015] NZSC 189, [2016] 1
NZLR 705.

STEPHENS v THE QUEEN [2017] NZHC 2341 [26 September 2017]

Supreme Court found serious police misconduct during the investigation, including using bogus search warrants and bringing bogus prosecutions in the courts.3 As a result of the abuse of process committed by police and following these cases, the prosecution was stayed against a number of the defendants and many of the existing convictions were quashed.

[3] Mr Stephens’ entered a guilty plea at an early stage of the prosecution. This was prior to the application by other co-defendants for a stay of the criminal proceedings and the subsequent appeals that arose from this litigation. The Crown accepts that if Mr Stephens’ convictions stand, he will be the only person convicted as a result of Operation Explorer, in circumstances where others who were convicted have had their convictions quashed. The Crown does not oppose Mr Stephens’ appeal and accepts it would be a miscarriage of justice to allow his convictions to stand in the circumstances.

Leave to appeal

[4] Mr Stephens’ appeal is out of time. At the time he entered his guilty plea, Mr Stephens was not aware of any police misconduct in obtaining evidence. Mr Stephens submits that in light of what has happened to his co-defendants, he should benefit from the same treatment as them.

[5] As the charges against Mr Stephens were entered in October and November

2010, leave to appeal out of time is determined in this case under s 123 of the Summary Proceedings Act 1957.4 Section 123 provides a broad discretion for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stephens v The Queen

Details

AGLC: Stephens v The Queen [2017] NZHC 2341
Case: [2017] NZHC 2341
Decision Date: 26 September 2017

CaseChat Overview and Summary

The appellant, Dylan Glen Stephens, sought to appeal his conviction for drug-related charges, which resulted from the RedDevils gang investigation, also known as Operation Explorer. The appeal was out of time, having been entered after the statutory period had lapsed. The Crown did not oppose the appeal, acknowledging that it would be unjust to allow Mr Stephens’ conviction to stand given the circumstances. The High Court of New Zealand, Nelson Registry, granted leave for the out-of-time appeal under the Summary Proceedings Act 1957, considering the interests of justice, including the serious police misconduct identified in the Operation Explorer investigation.

The primary legal issue was whether the Court should grant leave for an out-of-time appeal despite the appellant having entered a guilty plea. The Court had to determine if the appeal met the exceptional circumstances required for such leave, considering the serious police misconduct in the investigation and the implications for the appellant’s conviction. The Court also needed to assess if allowing the appeal would result in a miscarriage of justice, considering the appellant’s unawareness of the misconduct at the time of his plea and the similar treatment of co-defendants whose convictions had been quashed.

The Court found that the serious police misconduct in the Operation Explorer investigation warranted exceptional circumstances for an out-of-time appeal. The misconduct, which included the use of bogus search warrants and bringing false prosecutions, undermined the integrity of the justice system. Given that Mr Stephens’ conviction was based on evidence obtained through such misconduct, the Court concluded that allowing the appeal was necessary to prevent a miscarriage of justice. The Crown’s acceptance of the appeal and the appellant’s lack of awareness of the misconduct further supported the granting of leave. Consequently, the Court quashed Mr Stephens’ convictions without ordering a retrial.

The Court’s final order was to quash the appellant’s convictions. No retrial was ordered, as the convictions were deemed unsafe due to the serious police misconduct. The decision aligned with the broader judicial findings concerning Operation Explorer, ensuring consistency in the treatment of those affected by the investigation’s misconduct.

Orders