Hearing:	7 July 2015
Court:	Elias CJ, William Young, Glazebrook, Arnold and Blanchard JJ
Counsel:	K H Cook and G Ghahraman for Appellant M D Downs and Z R Hamill for Respondent
Judgment:	14 December 2015

JUDGMENT OF THE COURT

AThe appeal is allowed. The appellant’s convictions are quashed.

B There is no order for retrial.

____________________________________________________________________

REASONS

William Young, Glazebrook, Arnold and Blanchard JJ	[1]
Elias CJ	[110]

WILLIAM YOUNG, GLAZEBROOK, ARNOLD AND BLANCHARD JJ

(Given by Arnold J)

Table of Contents

Para No
Introduction	[1]
Background	[2]
Police undercover operation	[10]
(a) False search warrant	[12]
(b) Involvement of Chief District Court Judge	[14]
(c) Prosecution on false charges	[22]
Issues	[25]
Nature of the police conduct	[30]
Stay of prosecution on ground of police misconduct	[39]
(a) Underlying rationale of power	[43]
(b) Approach to exercise of power	[51]
(c) Role of causation	[61]
This case	[81]
Conviction following guilty plea	[96]
Decision	[109]

Introduction

In R v Horseferry Road Magistrates’ Court, Ex parte Bennett, the House of Lords confirmed that the concept of abuse of process in criminal cases applied to situations where misconduct by the prosecuting authorities rendered a trial, even a fair trial, an abuse of process, even though that misconduct occurred outside the jurisdiction.[1] It did so because, in the words of Lord Griffiths: [2]
… the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

An important issue in the present appeal is whether a stay of prosecution should have been entered as a result of serious police misconduct in the course of an undercover investigation leading to the appellant’s prosecution and conviction following a guilty plea.

Background

[1]R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42 (HL).

[2]At 62.

After an extensive police investigation into the activities of a motorcycle gang known as the Red Devils, the appellant was charged with five counts relating to the possession, supply and sale of cannabis, party pills and LSD. Nine others were also charged with a variety of offences in the same indictment. In addition, charges were brought against 11 other defendants. In the result, there were 21 defendants facing a total of 151 counts, comprising counts relating to participation in an organised criminal group, supply of methamphetamine or other drugs, conspiracy to cause grievous bodily harm, threatening to kill and other offences against the Crimes Act 1961 and the Arms Act 1983.
The police investigation involved the use of undercover officers, interception warrants and other investigative tools. Part of that undercover operation, involving the use of a bogus search warrant and the bogus prosecution of an…

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 Wilson v R

Details

AGLC: Wilson v R [2015] NZSC 189
Case: [2015] NZSC 189
Decision Date: 14 December 2015

CaseChat Overview and Summary

Trevor Wilson appealed against his conviction to the Supreme Court, claiming that the Court of Appeal had erred in quashing the stay granted by Simon France J. The Court of Appeal had held that the misconduct of the police did not affect the fairness of the trial but rather undermined the integrity of the justice process. The Court of Appeal also held that there was no "but for" connection between the misconduct and the proposed trial. The Supreme Court held that the Court of Appeal had not analysed the irregularity in what occurred accurately and that it failed to step back and look at the effect on the legitimacy of the trial in the round. The Supreme Court held that the misconduct of the police involved a fundamental and serious abuse of the court’s processes. The Supreme Court held that the integrity of the criminal justice system would be compromised if the trial was allowed to proceed. The Supreme Court quashed the appellant's convictions and declined to order a retrial on the basis that to do so would be an abuse of process.

Orders