The Queen v Williams and Williams

[2008] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND

CA664/07
CA686/07
[2008] NZCA 296

THE QUEEN

v

SHANE EDWARD WILLIAMS
DALE ARTHUR WILLIAMS

Hearing:2 July 2008

Court:Arnold, Panckhurst and Fogarty JJ

Counsel:L Cordwell for S E Williams

M A Edgar for D A Williams
K Raftery for Crown

Judgment:12 August 2008 at 3.00 pm 

JUDGMENT OF THE COURT

The appeals are dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]        Following a jury trial before Asher J, the appellants, Shane and Dale Williams, together with their brother Christopher Williams, were convicted of conspiracy to manufacture methamphetamine between 23 May and 16 December 2002.  All three were also charged with one count each of manufacturing methamphetamine.  Dale and Christopher Williams were convicted on the manufacturing count but Shane Williams was acquitted.  Shane and Dale Williams now appeal against their convictions.

Basis of appeal

[2]        Mr Cordwell for Shane Williams and Mr Edgar for Dale Williams (who represented himself at trial) raised two principal grounds of appeal, although their arguments in support differed somewhat.  They submitted that Asher J:

(a)Should have stayed the proceedings against the appellants on the ground of prejudice arising from undue delay; and

(b)Erred in allowing the Crown to rely on evidence relating to the manufacturing charge to prove the conspiracy charge.

Mr Edgar also submitted that the Judge misdirected the jury in relation to the conspiracy charge.

[3]        We deal with each point in turn.

Undue delay

[4]        The appellants alleged that their right to be tried without undue delay, recognised in s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA), was infringed.  They, together with nine co-accused, applied prior to trial for a stay of proceedings on this ground.  The basis of the application was that, by the time their trials were scheduled to be completed, the various accused would have been under arrest and on bail for approximately five years.

[5]        Asher J granted the application in respect of eight of the accused, but declined it in respect of the appellants and their brother, Christopher Williams: HC AK CRI 2007-404-0006 and CRI 2007-404-0007 10 August 2007.

The decision of the High Court

[6]        The Judge summarised the history of the proceedings as follows:

[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.

2 February 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.

16 May 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.

29 September 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.

14 February 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.

[7]        Arising out of this sequence the Judge identified four different periods of delay.  He said (at [14]):

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.

[8]        The Judge then went on to consider his jurisdiction to stay the proceedings on the ground of delay.  He found that he had jurisdiction under the inherent jurisdiction and also as a result of s 25(b) of NZBORA (at [15]-[16]).   The Judge next examined the rationale behind the right to be tried without undue delay, finding that it lay not simply in the possibility of prejudice at trial but also in the intrusion on personal liberty inevitably involved in a substantial period on bail awaiting trial (at [20]-[23]). 

[9]        The Judge then considered what constituted undue delay, referring in particular to Martin v Tauranga District Court [1995] 2 NZLR 419 (CA). The Judge examined the delay that had occurred in this case, and summarised his conclusions as follows:

[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.

[10]     The Judge then went on to consider the question of remedy.  He said that a balancing exercise was required, and as part of that the public interest in the prosecution of serious offending could be considered.  He dealt with the applicants in three distinct categories.  The Judge said:

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 [NZBORA].

[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 [[2007] 3 NZLR 207 (CA)] 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]    … [T]he 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.

[11]     Following their conviction, Asher J sentenced the appellants and Christopher Williams to terms of imprisonment.  The end sentence in each case reflected a discount of 18 months as a remedy for the undue delay that each had suffered.

Discussion

[12]     We begin by saying that we will not attempt to deliver a leading judgment on the question of undue delay between arrest and trial.  We are sitting as a Divisional Court, and, in any event, the arguments were not presented to us in a way that was conducive to such an attempt.  Asher J undertook a thorough and careful analysis of the authorities, from New Zealand and elsewhere, considered the facts closely and applied the principles derived from the authorities to the individual circumstances of the various accused.  It was not suggested in argument before us that the Judge had misunderstood or failed to consider relevant authorities, or had made some error as to the facts.  Rather, the challenge focussed on the Judge’s evaluation of the appellants’ positions.

[13]     There were three elements to the argument presented to us:

(a)First, it was said on behalf of Shane Williams that his acquittal on the manufacturing charge put him in the same category as Mr McLaughlin and Ms Niblett.  The argument was that Shane Williams’ offending was no more serious than their offending, so that there was inconsistency, and therefore unfairness, if they were granted a stay but he was not.

(b)Second, it was said on behalf of both appellants that the Judge should have granted a stay as a result of the prejudice to them caused by the delay.  Two reasons were advanced.  The first was that the nature of the Crown case was such that it was difficult for the appellants to answer it as a result of delay.  The second was that, as a result of the delay, the Crown did not call as a Crown witness a police officer, Detective Reardon, who had played a substantial role in the investigation.  The Crown’s failure to call him meant that the appellants were handicapped in the presentation of their cases.

(c)Third, Mr Edgar argued that the balancing exercise conducted by the Judge was flawed.  He submitted that the emphasis given to the seriousness of the charges in that exercise was wrong in principle and produced an unfair outcome in respect of the appellants.

Shane Williams: inconsistent treatment

[14]     The argument summarised in [13](a) above is, in our view, untenable.  First, it is clear from the Judge’s sentencing notes that he regarded Shane Williams’ offending as serious, even though he was acquitted on the manufacturing charge.  The Judge said:

[33]     … Your pattern of involvement does not feature the overt act of manufacturing of which your two brothers have been convicted.  Nevertheless, I am satisfied from the telephone discussions that I heard and the text messages I read, that you were actively involved in implementing the conspiracy.  Further, I am satisfied that you were involved in the same way as your two brothers as a leader of your own methaphetamine operation. …

[34]     I consider the fact that you have not been convicted of a specific manufacturing charge does differentiate you in terms of overall culpability.  An overt act is missing.  But I do not consider that that differentiation should be great because … you were a leader in the conspiracy and in its implementation. ...

[15]     By contrast, it is clear that the Judge considered that Mr McLaughlin and Ms Niblett played a less significant role than that played by Shane Williams.  They obtained or looked after premises that could be used by the appellants and their brother for the manufacture of methamphetamine, but were not otherwise actively involved.  Despite his acquittal on the manufacturing charge, the Judge considered that Shane Williams was actively involved in implementing the conspiracy.

[16]     Second, the Judge made a judgment on the basis of the material before him at the time he determined the application. The Judge considered that in the circumstances, some form of relief other than a stay was an appropriate remedy for the breach of s 25(b) in the case of the appellants and their brother.  This, the Judge considered, reflected an appropriate balance between the interests of the appellants in having the breach of their right vindicated and the public interest in the prosecution of serious crime.  If circumstances had changed materially (for example, if it was realised after the Judge had given his decision that evidence critical to the defence case was no longer available), the application for stay could have been renewed at any time. 

[17]     But Shane Williams’ acquittal on the manufacturing charge does not mean that the Judge’s decision to allow the prosecution to proceed in his case was necessarily wrong, or inconsistent with the decision which he made in respect of Mr McLaughlin and Ms Niblett.  The Judge was required to consider whether the prosecution should proceed, not to predict its outcome.  The Judge considered it relevant (rightly, in our view) to consider the potential punishment if the appellants were convicted as this was an indication of the seriousness of the offending alleged against them.  Acquittal on one count does not render that analysis wrong or inappropriate.  The Judge did not deny Shane Williams a remedy.  Rather, he gave him a remedy in the form of an 18 month sentence reduction, which was proportionately a greater reduction than that given to his brothers, as the Judge noted at [47] of his sentencing notes.

Actual trial prejudice

[18]     As to the argument in [13](b) above, both Mr Cordwell and Mr Edgar accepted that the correct approach was to ask whether the appellants had been prejudiced in the preparation or conduct of their defences as a result of the delay. 

[19]     Asher J did not accept that the appellants could not have a fair trial as a result of the delay.  Before us, counsel argued that the Judge had underestimated the extent of the difficulty caused to the defence by the delay.  They pointed out that a significant feature of the case against the appellants was extensive transcripts of telephone conversations and text messages between them and their brother and the other persons originally accused.  The Crown case was that the appellants were using various codes to communicate about drug activities, codes which on their face related to everyday activities such as house painting and playing golf.  Counsel said that the appellants’ ability to answer the allegations against them by explaining the true content of these messages and, if possible, calling corroborative evidence to confirm their explanations, was irretrievably compromised by the lengthy delay.

[20]     However, this claim of prejudice lacked specificity.  Neither appellant filed an affidavit to explain or give examples of the claimed prejudice.  Importantly, there was no further application to Asher J in the course of the trial on the basis that, as a result of delay, the appellants were unable to present a proper defence.  This is, in our view, significant.  If the appellants were confronting real difficulties at trial as a result of delay, we would have expected an application to have been made.  Plainly, the trial Judge was better placed than we are to assess whether, and if so to what extent, the appellants were suffering prejudice in mounting their defence as a result of delay.

[21]     In any event, the transcripts were provided to the appellants about nine months after they were arrested.  That delay was the result of the need to have the tapes transcribed and checked.   Besides depositions, there were three attempts at holding the trial.  So the appellants had the opportunity to consider the transcripts at a reasonably early stage with a view to challenging them, and must have considered them for the purposes of preparing their defence prior to the first and subsequent trials.  Accordingly, it is misleading to focus simply on the final trial.

[22]     Finally, as Mr Raftery for the Crown pointed out, the defence did cross‑examine Crown witnesses about potentially innocent references in the recorded conversations and texts and was able to submit to the jury that there were innocent explanations for at least some of the material.  The Judge recorded the defence submission in his summing up in the following way:

[144]    As to the telephone calls, [Mr Cordwell] suggests to you that the methamphetamine connotation that the Crown puts on those calls and of course the texts as well is often wrong.  Certainly none of them, he says, show the manufacturing of methamphetamine.  Some of them, he says, might show the extraction of pseudoephedrine but many others do genuinely concern painting and other innocent pursuits.  He invites you to not automatically assume that there was a code being used.  He talks of the police having rushed to judgment on these issues and the massive commitment of the police investigation.

[23]     We consider that, assessed against this background, the appellants’ claim of prejudice in this respect is unfounded.

[24]     That leaves the Crown’s failure to call Detective Reardon as a witness. The appellants argue that they were prejudiced by the Crown’s failure to call Detective Reardon because they were unable to cross-examine him about the integrity of the police investigation.  By way of example of matters which would have been explored with Detective Reardon, counsel referred to items which were said to have been discovered by Detective Reardon during a search but which were not recorded in his notebook and to alleged tampering with the tapes of the intercepted conversations.

[25]     The background is that at the first three attempts at trial, Detective Reardon was, or was intended to be, called by the Crown.  He was not called at the final trial, however, as by that time he had left the Police.  Detective Senior Sergeant Brunton was his superior officer.  He gave evidence that he had appointed Detective Reardon to be the officer in charge of exhibits at one of the properties which was searched.  He also said in his evidence that Detective Reardon had left the Police, and was briefly cross-examined on this.

[26]     Mr Raftery submitted that the absence of Detective Reardon was actively used by the defence in cross-examination and in closing submissions to challenge the integrity of the police investigation.  The Judge noted the defence submissions on this point in his summing up to the jury (at [28]-[30] and at [157]-[161]).  Accordingly, Mr Raftery said, there could be no prejudice as a result of the absence of Detective Reardon.  Any inability of Crown witnesses to explain matters that Detective Reardon was involved in would have been detrimental to the Crown case, and advantageous to the defence.  Mr Raftery said that because Detective Reardon was not called he was not available to provide corroboration for other Crown witnesses, and further, various defence allegations were effectively left on the record, unchallenged.

[27]     We see some force in Mr Raftery’s submission.  It receives some support from the fact that the appellants did not ask the Judge to order the Crown to call Detective Reardon as a witness under s 368(2) of the Crimes Act 1961, as they were entitled to do.  While the Courts have said that this jurisdiction will be exercised sparingly (see R v Wilson [1997] 2 NZLR 500 at 511 (HC)), we see no reason why an application could not have been made in the present case. Nor did the appellants renew their application for a stay on the ground that, because the delay had resulted in the absence of Detective Reardon, they faced specific prejudice arising from the inability to cross-examine him. As we have already said, the Judge was much better placed than we are to reach an assessment of whether there was indeed any prejudice to the defence on that account.

[28]     All this indicates that the appellants considered at the time that the best course for them was to attempt to exploit the Crown’s failure to call Detective Reardon as a witness rather than attempting to remedy it.  That was a legitimate tactical decision.  Accordingly, we do not accept that Detective Reardon’s absence meant that the trial should have been stayed on the ground that delay had prejudiced the appellants in the conduct of their defence.

Seriousness of charges and balancing

[29]     Finally we come to the argument referred to in [13](c) above.  Mr Edgar submitted that the balancing process was unfair because the Judge gave weight to the seriousness of the charges faced by the appellants.  Mr Edgar’s argument seemed to be based on the assumption that the Judge considered that, as a result of undue delay, the trial would be unfair (in the sense that the appellants would be prejudiced in the presentation of their defences).  He cited R v Burns (Travis) [2002] 1 NZLR 387 at [11] (CA), to the effect that “[t]here is no room in a civilised society to conclude that, ‘on balance’, an accused should be compelled to face an unfair trial.”

[30]     But the Judge did not conclude that the trial would be unfair.  The Judge did not consider that the appellants would be prejudiced in the presentation of their defences.  Rather, he considered that each had suffered prejudice as a result of the lengthy interference with their liberty that being on bail awaiting trial entailed. The Judge concluded that the appellants’ right to be tried without undue delay had been infringed, and, having discussed the relevant principles at some length (at [76]-[91]), he undertook the balancing exercise to determine what remedy should be granted – a stay or some alternative.  The Judge made no error of principle in this respect.

[31]     In the result, we reject this ground of appeal.

Improper use of evidence of manufacturing as evidence of the existence of conspiracy

[32]     The appellants submit that the Crown relied on evidence relating to the manufacturing charge to prove the conspiracy charge and that the effect of this was that the Crown wrongfully offered propensity evidence.  Reliance was placed on ss 8 and 43 of the Evidence Act 2006. 

Judge’s ruling

[33]     This matter was raised with the Judge and was dealt with in Ruling (No 22), dated 28 September 2007.  The Judge required the Crown to provide particulars of the conspiracy charge.  In those particulars the Crown relied upon 10 overt acts.  Among them were the following:

The finding of equipment, chemicals and methamphetamine at Oceanview Road on 21 November 2002;

The finding of equipment, chemicals and methamphetamine at Angle Street on 22 November 2002;

The finding of equipment, chemicals and methamphetamine at King Street on 16 December 2002.

[34]     The defence challenged the Crown’s reliance on these particulars, arguing that they formed the basis of the specific manufacturing charges against the three accused.  Counsel called in aid ss 8 and 43 of the Evidence Act and emphasised the difficulties that would arise in directing the jury in relation to admissibility of evidence given the combination of  the conspiracy and the specific charges.

[35]     The Judge rejected the defence’s challenge to the particulars.  The Judge referred to the decision of this Court in R v Humphries [1982] 1 NZLR 353 and then said:

[13]     Nevertheless while holding that joinder of substantive counts and a related conspiracy count is often undesirable and requires clear justification, it was held that in that case there was justification.  This was essentially because the Crown was setting out to show that there was a drug ring involving a continuing conspiracy, of which the substantive offences were “no more than incidents” (357).

[36]     The Judge concluded that the instances of specific manufacturing were overt acts which demonstrated the existence of the conspiracy and that the Crown should be allowed to rely on them (at [20]).  He concluded in terms of s 8 of the Evidence Act that the probative value of the evidence was not outweighed by the risk of unfair prejudicial effect (at [21]).  While the Judge considered that s 43 had no application, he would, in exercising his discretion under that section, allow the evidence on the basis that the acts relied on had probative value outweighing any unfairly prejudicial effect (at [21]).

Discussion

[37]     The arguments put to us were essentially a repetition of those put to the Judge.  We agree with the Judge’s assessment.  The Crown’s case was that the specific instances of manufacturing were simply incidents of the broader conspiracy.  As this Court recognised in Humphries, combining the specific charges with the conspiracy charges is legitimate in such circumstances.  Put another way, this was not a case where there was a complete overlap of the evidence relating to the conspiracy charge and to the specific charges.

[38]     In addition, we note that there was no application for severance in this case.

[39]     Accordingly, we reject this ground of appeal.

Misdirection on conspiracy charge

[40]     In his summing up, the Judge said that it was not necessary for the Crown to prove that the conspiracy was actually formed during the period stated in the indictment, i.e., 23 May to 16 December 2002 (at [51]).  The Judge said that the Crown alleged that the agreement was formed sometime before May 2002, but that it could not identify the precise date of formation because that was prior to the police investigation.  Rather, the Judge said, the Crown case was that the agreement was formed before May 2002 and continued throughout the period stated in the indictment (at [52]).

[41]     Mr Edgar submitted that the Judge’s direction was wrong, and that the Crown had to show that the agreement was formed during the period stated in the indictment.  Mr Edgar provided no authority or other supporting argument for this submission.  Clearly it is misconceived, and we reject it. 

Decision

[42]     The appeals are dismissed.

Solicitors:

Crown Law Office, Wellington