The Queen v Kupu

[2007] NZCA 504

IN THE COURT OF APPEAL OF NEW ZEALAND

CA460/07
[2007] NZCA 504

THE QUEEN

v

LEIOLA SARAH KUPU

Hearing:5 November 2007

Court:Ellen France, John Hansen and Heath JJ

Counsel:P T R Heaslip for Appellant

M F Laracy for Crown

Judgment:15 November 2007 at 11.30 am

JUDGMENT OF THE COURT

Leave to appeal is declined.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant has been charged, jointly together with one other person, with aggravated robbery.  The indictment in relation to that charge was filed 19 days late.  The Crown applied for an extension of time for the filing of the indictment under s 345B of the Crimes Act 1961.  The appellant contested the application but, in a decision delivered on 27 August 2007 by Judge Bouchier, the application was granted: DC AK CRI 2006-090-009116.  The appellant applies out of time under s 379A(1)(ca) of the Crimes Act for leave to appeal against that decision. 

The relevant facts

[2]       The alleged offending arose from an incident on 6 October 2006.  Two other persons were charged in relation to that incident.

[3]       On 18 January 2007, there was a depositions hearing for the appellant and the two others in the Youth Court.  The depositions were by way of hand-up and committal for trial was ordered on that day.  The informant was represented at the hearing by Crown counsel.

[4]       The next relevant event was that one of the co-accused, on 22 February 2007, accepted Youth Court jurisdiction to deal with the charges he faced including the aggravated robbery charge in respect of which the Crown alleged he was at a party with the appellant and the other person.

[5]       The indictment was due to be filed on 1 March 2007.  The Crown received the depositions file the next day.

[6]       There were callovers in the High Court and then the matter was transferred to the District Court (middle-banded) for callover on 20 March.

[7]       The Crown filed its application under s 345B on 16 March and the indictment was filed on 20 March.

The statutory background

[8]       Section 345A(1) of the Crimes Act provides that, unless an extension is obtained under s 345B, an indictment needs to be filed not later than 42 days after the accused is committed for trial. 

[9]       Section 345B(1) provides for the trial Judge to extend the 42 day period if it is “in the interests of justice” to do so.  Section 345B(2)  lists five factors that Judges may have regard to when considering applications for an extension of time, namely:

(a)       the number of offences which will or may be counts in the indictment:

(b)       the nature of the offence or offences which will or may be counts in the indictment:

(c)       the complexity of the issues likely to arise in the proceedings:

(d)       whether the accused is charged jointly with any other person:

(e)       whether further or ongoing inquiries are being conducted by or for the prosecution in relation to the subject-matter of the trial.

[10]     This Court in R v Rolleston [2007] NZCA 165 described the discretion in s 345B as a “broad” one and noted that the five factors in s 345B(2) did not limit the “generality of the discretion” (at [5]).

The District Court judgment

[11]     The District Court decision dealt also with an application under s 345B in relation to the appellant’s co-accused.  In terms of the appellant, the Judge has essentially proceeded on the basis that the chronology of events was as we have set out above.  Against that background, Judge Bouchier has treated the lateness as unfortunate but a result of administrative oversight rather than anything more “unsatisfactory” (at [58]).

[12]     In that context, the Judge was satisfied that the issue of the Youth Court jurisdiction was the “spanner in the works” and there was also the late delivery to the Crown of the depositions file from the Youth Court (at [54]).

[13]     Judge Bouchier considered the factors set out in s 345B(2).  The Judge concluded that the interests of justice came down in favour of an extension of time.  Relevant factors in the balance were the serious nature of the charge (although the Judge accepted it was not the most serious), the absence of prejudice from delay, and the desirability of prosecuting such offences where the potential for discharge arose as a result of a “technicality” (at [51], [56] and [57]).

The application for leave to appeal

[14]     The appellant advances two main points in support of the appeal.  First, the appellant submits that the Judge should not have decided the application without evidence from the Crown as to what occurred and in explanation of the delay.

[15]     The second matter advanced by the appellant is that the delay here was occasioned by misconduct on the part of the prosecution.  It was irrelevant therefore, the appellant says, that there was no prejudice to the appellant in the delay.

Discussion

[16]     The first point can be shortly disposed of shortly.  Ms Laracy accepted there may be cases where evidence will be required to support an application under s 345B.  However, she submits there was no need for the Crown to file evidence in support of the present application.  We agree.  Section 345B(4) relevantly requires only that, unless a trial judge otherwise directs, the application be in writing and include a “statement” of the reasons for seeking an extension.  On its face s 345B appears to envisage that the Judge will generally make the decision on the basis of a written explanation in the context of what is, “essentially” a case management section: R v Moody CA318/06 4 December 2006 at [19].  In any event, this is not a case where there were any truly disputed facts.

[17]     Mr Heaslip argued in this context that, because Crown counsel was present at depositions, the Crown could not claim to have been unaware depositions had occurred and so any delay in the full file from the depositions hearing being forwarded to the Crown was not relevant.

[18]     We do not see this as giving rise to any need for evidence from the Crown.  This is simply an argument about the extent to which the Court could place any weight on the fact that the full file was not received immediately.  Further, this factor was not central to the Judge’s assessment of where the interests of justice lay.

[19]     The second aspect raised by the appellant also has no merit.  We do not accept there was a basis for the Judge to reach any conclusion other than the one that she did, that is, that there was some sort of administrative oversight. 

[20]     Mr Heaslip’s argument on this point relies on the observation in Rolleston as follows:

[12]     We accept the Crown submission that the absence of concrete restrictions on judges and the corresponding generous discretion given to them when deciding whether to grant an extension or to discharge an accused, militates strongly against discharging the accused in the absence of some specific prejudice arising from the extension sought and/or some Crown misconduct which led it to being sought.  Mere administrative oversight does not equate to Crown misconduct and there is no prejudice alleged in this case.

[13]     …We accept that the level of seriousness of the offending is a matter that can be taken into account in any such balancing exercise and that the more serious the offending, the more likely it is that the public interest in prosecution would outweigh any prejudice and/or misconduct.  In this case, however, there was no prejudice or misconduct.  (Our emphasis.) 

[21]     The Court in Rolleston was dealing with a case of administrative oversight and the observation Mr Heaslip relies on does not purport to establish some rigid dichotomy between prejudice and misconduct.  However one characterises the reason for the delay, the time involved is a relevant factor in determining whether to grant an extension of time.  In this case the delay involved was, at most, 19 days.  We say at most 19 days, because the approach in Moody is to focus the analysis primarily on the gap between the due date for filing the indictment and the date on which the application for an extension of time is filed (at [18]).  On the Moody analysis, the delay here is from 1 March to 16 March.

[22]     There being no merit in the appeal it is not appropriate to grant leave to appeal.

Solicitors:

Crown Law Office, Wellington