Zhang v Auckland District Court
[2012] NZHC 385
•9 March 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-5798 [2012] NZHC 385
UNDER The Judicature Amendment Act 1972
IN THE MATTER OF a decision of the Auckland District Court under s 25(b) of the New Zealand Bill of Rights Act 1990
BETWEEN XU ZHANG Plaintiff
ANDAUCKLAND DISTRICT COURT First Defendant
ANDATTORNEY-GENERAL OF NEW ZEALAND
Second Defendant
Hearing: 24 February 2012
Counsel: A D Banbrook for Plaintiff
M J Lillico for Second Defendant
Judgment: 9 March 2012
I direct the Registrar to endorse this judgment with a delivery time of 3.30pm on the
9th day of March 2012.
RESERVED JUDGMENT OF MACKENZIE J
Background
[1] This is an application for judicial review of the decision of Judge Sharp given in the District Court at Auckland on 17 August 2011 dismissing an application by the
plaintiff for a stay of criminal proceedings against him for breach of the plaintiff’s
ZHANG V AUCKLAND DISTRICT COURT HC AK CIV-2011-404-5798 [9 March 2012]
right to trial without undue delay under s 25(b) of the New Zealand Bill of Rights
Act 1990 (BORA).
[2] The plaintiff is a Chinese national aged 22 years living in New Zealand under a student visa. He arrived in New Zealand in November 2007. In March 2009, he was charged with four counts of importation of pseudoephedrine contrary to s 6(1)(a) of the Misuse of Drugs Act 1975. Three of the charges related to parcels delivered to an address at which the plaintiff was living in December 2008. The plaintiff was questioned about these three parcels in December 2008 and denied any knowledge of any of the three parcels or any involvement in the alleged importation. No charges were then laid. In March 2009, a fourth parcel, addressed to a different address at which the plaintiff was then living, was intercepted. He was interviewed and again denied any knowledge of the parcel or any involvement in the alleged importation. At that stage four charges were laid, one in respect of each of the parcels.
[3] The plaintiff first appeared in the District Court in Auckland on
26 March 2009. He was granted bail. There were seven subsequent appearances in the District Court, between May and December 2009, leading to a depositions hearing on 22 January 2010. He was committed for trial. There were then three further appearances, before a trial which was scheduled to proceed in the week commencing 6 September 2010. Shortly before the trial date, the plaintiff ’s counsel applied to adjourn the trial, indicating that he wished to call a forensic document examiner who had not previously been instructed. The adjournment was granted on the first morning of the trial, against the Crown’s opposition. Because of pressures in the District Court, subsequent standby trial dates in November 2010 and May 2011 were unable to proceed. A firm trial date was fixed for September 2011. The application for stay was filed in July 2011 and the Judge’s ruling was delivered on 17 August 2011. This application for judicial review was then commenced and the trial was further adjourned.
The Judge’s decision
[4] In her ruling, the Judge noted that the approach to breaches of s 25(b) of BORA is that described by the Supreme Court in R v Williams.[1] She then examined the circumstances. She accepted that there had been numerous delays in the Court process and said: “On the whole these appear to be institutional. The Crown can take no blame whatsoever for any of the delays”. She noted that the applicant himself was responsible for the delay caused by the adjournment from the first trial
date, 6 September 2010, because of his wish to instruct a forensic document examiner.
[1] R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.
[5] The Judge noted that the September 2011 trial date was firm and said that the relevant length of delay was the two and a half years from arrest on 25 March 2009 to the trial date of 26 September 2011. The Judge went on to evaluate what prejudice the plaintiff may have suffered as a result of the delay. The plaintiff alleged that a number of witnesses whom he could have called had left New Zealand permanently and were unavailable to him. The Judge referred to four witnesses, whose names were given by her as Lu Zhang, Zhau Yu, Kun and Gong Ng. The Judge found that three of those, Lu Zhang, Zhau Yu, and Kun, had left New Zealand before the plaintiff was committed for trial, so that the delay had not resulted in these witnesses being unavailable. The Judge found that Gong Ng would have been in New Zealand for the first trial date of 6 September 2010, when the trial was adjourned on the plaintiff’s application, so that the delay had not resulted in his
being unavailable. The Judge further said:[2]
In summary, it is pure speculation that had these people been in New Zealand they might have provided relevant evidence for Mr Zhang. I go even further than that however in this case, to say that with respect to some of them, namely Lu Zhang and Zhau Yu in particular, it is highly unlikely in light of Mr Zhang’s allegations of the culpability of these two in the offending with which Mr Zhang is charged, that they would be likely or prepared to give evidence favourable to him at his trial, when to do so is likely to inculpate them.
[2] R v Xu DC Auckland CRI-2009-004-006970, 17 August 2011 as [18].
[6] As to remedy the Judge said:[3]
[3] At [19]-[21].
I have found that there has been reasonably substantial delay in this case. As the Crown accepts (and so do I) that there may be a breach of a right to trial without undue delay even if there is no prejudice to the accused’s right to a fair trial, but in such a case the Court should consider the appropriateness of remedies other rather than a stay which will not often, in such a case, be a reasonable and proportionate response to the delay. In this case I consider that it would not be.
In Williams, where the Court stated that there was no justification for a stay, and the delay in his case was five years between arrest and conviction, the 25 percent reduction in sentence was considered more than adequate. In this case we will have delays of round about two and a half years by the time the trial has been held. I do not find that the delay itself has prejudiced the applicant in his right to a fair trial; nevertheless, the delay should be marked in some way. A stay is inappropriate and unnecessary, but should Mr Zhang be convicted then the trial Judge will no doubt consider what discount should be applied to the inevitable sentence of imprisonment to reflect the delay and, thus, the breach of the applicant’s right to be tried without undue delay.
The application for stay is, therefore, declined. Mr Zhang will take his trial on the due date and this decision should be made available to the sentencing Judge, should Mr Zhang be convicted.
The submissions
[7] The essence of the plaintiff’s submission is that the Judge gave inadequate weight to factors which supported a conclusion that the plaintiff would suffer specific trial prejudice caused in whole, or at least in part, by the substantial delay in bringing the plaintiff to trial.
[8] In considering the extent of the delay in trial, counsel for the plaintiff notes that the trial is presently scheduled for the week commencing 2 April 2012, and that by that date there will have been a delay in the prosecution of the plaintiff in aggregate of over 36 months. However, when the application for stay was heard in the District Court, the trial was then scheduled for September 2011, and the Judge’s assessment of the delay was made having regard to that trial date. I do not consider that the period since September 2011 can properly be taken into account on the present application for judicial review. The adjournment of the trial in September 2011 was at the request of the plaintiff, by reason of the filing of this application for judicial review. In any event, whether delay is considered by reference to a trial date of September 2011 or April 2012 is of little moment so far as
the question of prejudice is concerned. All of the potential witnesses on whom the plaintiff relies were unavailable as at both September 2011 and April 2012.
[9] It is common ground between counsel that the principles to be applied are those set out by the Supreme Court in R v Williams.[4]
[4] R v Williams, above n 1, at [8]-[9].
Section 25(b) of the New Zealand Bill of Rights Act 1990 guarantees to everyone who is charged with an offence “the right to be tried without undue delay”. As Blanchard J said, when delivering the judgment of the Court of Appeal in R v Harmer:
“[130] The Bill of Rights guarantee of a trial without undue delay often overlaps with and supports the guarantee of a fair trial (s 25(a)) but it is a distinct right whose purpose is also to minimise pretrial restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial. Consequently, delay which has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge . . .
[131] Whether delay can be said to be undue despite not affecting the fairness of a trial therefore falls to be determined on a case-by-case assessment of particular circumstances. The length and causes of delay must be considered . . .”
The right to be tried without delay supports the separate and independent right to a fair trial because the longer the delay in getting to trial the greater the possibility that there cannot be a fair trial. But, as the passage from Harmer recognises, the court may be satisfied that the right to be tried without undue delay has been infringed although the accused has been unable to demonstrate any particular prejudice in defending the charges.14
That was the position in the present case.
[10] It is also common ground that in this case the findings of the Judge constitute a finding that there has been a breach of the right to trial without undue delay. The essential issue is over the appropriate remedy. On the question of remedy, counsel for the plaintiff submits that conceptually there can be such undue delay in progressing a prosecution that even without specific trial prejudice, a remedy is justified. He submits that a crucial consideration must be whether a delay in progressing the prosecution has been such that it has caused specific trial prejudice and, in doing so, breached what the Supreme Court described as the overlapping
right to a fair trial. He submits that the Judge was correct to find that there had been
a breach of the right to trial without undue delay and thus the need to consider a remedy. He contends that the evidence now before the Court supports a conclusion that the delay in prosecuting the plaintiff has been such as to cause significant and specific trial prejudice so that the remedy of a permanent stay is justified.
[11] The case on prejudice advanced in this Court is substantially different from that advanced before the Judge. There, the focus was on the availability or otherwise of the four witnesses referred to at [5]. In this Court, the plaintiff now submits that the testimony of three witnesses, called Wang Bin, Gong Ning, and Peng Guo, would have formed an important part of the defence case for the plaintiff. Two of those witnesses are new, in that their potential evidence was not in issue before the Judge. Gong Ning is the person described by the Judge as Gong Ng. Counsel submits that, if the Court accepts that the evidence of those witnesses is important and relevant to the conduct of the defence, then the plaintiff in entitled to consideration of a permanent stay.
[12] Counsel for the second defendant in his written submissions focuses on the question of whether there was undue delay. In his oral submissions he accepted that the Judge had held that there was undue delay, and that the issue was that of the appropriate remedy for that delay.
[13] In the light of the way in which the case was argued, I do not consider that it is necessary to examine, as a separate and discrete issue, the Judge’s conclusion that there has been delay such as to constitute a breach of the plaintiff’s right to be tried without undue delay, under s 25(b) of the BORA. The essential issue in this case is not whether that right has been breached, but what is the appropriate remedy for that breach.
[14] Mr Banbrook submits that it is a relevant consideration that the case against the plaintiff was weak. I do not consider that it is necessary in this case to examine the strength or otherwise of the prosecution case. As Mr Lillico submits, it has been found sufficient for the plaintiff to be committed for trial. The focus of the inquiry, in relation to delay, is the extent of prejudice to the plaintiff in facing that case. That involves an assessment of the strength of the evidence which the three witnesses now
relied on might give if called at trial, and an assessment of whether the unavailability of any of those witnesses at trial has resulted from the delay.
[15] I deal first with the issue of availability of the witnesses. The first trial date was September 2010. That was about 18 months after arrest. That trial date was approximately one year after depositions. The time taken to reach that point was within bounds, so that there was, at that stage, no breach of the s 25(b) right. The plaintiff cannot assert that, at September 2010, there had been undue delay, as he was unready for trial at that date. The adjournment was at his request.
[16] The trial was then adjourned to a stand by fixture in May 2011. Had the trial been able to proceed then, I consider that a claim of undue delay would not have succeeded. I therefore consider it appropriate, in considering whether the evidence of these witnesses has become unavailable as a consequence of the breach of the right to trial without undue delay, to examine whether the witnesses as would have been available in May 2011.
[17] In their statements, Wang Bin says that he was a student in Auckland in the period 2008 to 2010 and is now living in Beijing. He does not say exactly when he left New Zealand. Gong Ning says that he was a student in Auckland between 2007 and August 2010, and returned to China in August 2010. Peng Guo says that he is living in Beijing. He came to New Zealand to enrol in a course in September 2007. The Judge said of Gong Ning: “He left New Zealand in August 2010 but would have been in New Zealand for the first trial date of 6 September 2010.” That seems inconsistent. I assume in favour of the plaintiff that Wang Bin and Gong Ning might have been available for a trial in September 2010. There is insufficient evidence to establish that Peng Guo might have been here. However, even if all three might have been available in September 2010, there is no evidence that any of the three would have been available in May 2011, the first date when the trial could reasonably have been held after that adjournment.
[18] As I have noted neither Wang Bin nor Peng Guo were relied upon in relation to the stay application. There is no explanation in the evidence of why they are relied upon now, but not then. If the plaintiff was not aware at the date of any earlier
trial, of the evidence that they could have given, then the plaintiff cannot establish that the witnesses could have been called at an earlier trial. That necessarily means that the plaintiff cannot establish that the delay since that earlier trial date has caused prejudice because the witnesses have become unavailable.
[19] For these reasons, I consider that the plaintiff has failed to establish prejudice resulting from the unavailability of any witness as a result of delay.
[20] A further relevant consideration is the nature of the evidence that these witnesses would give. In essence, each of them would give evidence of the hand writing on the labels of the parcels. Each of them also expresses their belief as to the persons responsible for sending the parcels, and their belief that the plaintiff had no knowledge of the arrangements. It may be questionable whether evidence of these witnesses as to handwriting would be admissible. Further, the witnesses would each have to be in a position to give admissible evidence to justify the grounds for their belief. The statements do not give details in this regard. On that basis, the cogency of the evidence sought to be adduced seems questionable.
[21] It is, however, unnecessary for me to consider that question, because of my conclusion that the unavailability of the witnesses at trial is not the result of the delays in trial subsequent to the first adjournment of the trial in September 2010, or the further adjournment in May 2011.
[22] For these reasons, the application for judicial review must be dismissed.
“A D MacKenzie J”
Solicitors: Anthony Banbrook, Barrister, Auckland for Plaintiff
Crown Law Office, Wellington, for Second Respondent