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The Queen v Hill [2003] NZCA 18; [2004] 2 NZLR 145 (17 February 2003)

Last Updated: 18 December 2011



IN THE COURT OF APPEAL OF NEW ZEALAND
CA26/02
CA38/02

THE QUEEN


V


FREDERICK HILL
MARY TURTON


Hearing:
27 November 2002


Coram:
Glazebrook J
Baragwanath J
Randerson J


Appearances:
N Levy for the Appellant Hill
R M Lithgow for the Appellant Turton
S P France for Crown


Judgment:
17 February 2003

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

[1] The appellants were tried in the High Court in Palmerston North on a number of charges laid under the Insolvency Act 1967 and the Crimes Act 1961, arising from the bankruptcy of the appellant Mr Hill. After a four-week jury trial, the appellant Mr Hill was convicted of seven counts under the Insolvency Act and three under the Crimes Act. The appellant Ms Turton was convicted of four counts under the Insolvency Act and three under the Crimes Act.
[2] Mr Hill was subsequently sentenced to six months periodic detention and Ms Turton to fines totalling $1800 on the three charges under the Crimes Act. She was convicted and discharged on the Insolvency Act charges. For reasons which will be detailed shortly, both appellants dismissed counsel appointed to represent them shortly before the trial was due to commence. They were unsuccessful in obtaining an adjournment of the trial, which proceeded with the appellants representing themselves. Mr Hill was remanded in custody throughout the trial and Ms Turton was in custody for the first week before being released on bail.
[3] They each now appeal against their convictions on the grounds that their rights under s 24 of the New Zealand Bill of Rights Act 1990 were breached and, in Ms Turton’s case, on the further ground of misdirections in the trial Judge’s summing up.

Background facts

[4] Mr Hill was adjudged bankrupt on 15 December 1998 on the petition of the Inland Revenue Department. Charges were subsequently brought against him under ss 126(1)(f) and (g) of the Insolvency Act alleging concealment of assets and falsification of documents. He also faced two charges under s 128A(1)(b) of the Insolvency Act alleging that he took part in the management of two companies without the leave of the Official Assignee or the Court. A number of charges were also brought against him under s 229A of the Crimes Act alleging fraudulent use of documents for pecuniary advantage. The Crown case proceeded on the basis that Mr Hill was the principal offender and Ms Turton a party.
[5] The appellants have not filed any affidavits about events at the trial so the facts have necessarily been established by a review of the Court record, the Judge’s rulings, and the transcript of evidence at trial. It is necessary to consider the sequence of events leading up to the trial. For convenience, this will be set out in the form of a chronology.
28 June 2001
The appellants were committed for trial. Mr Behrens QC was then counsel for Mr Hill and Mr O S Winter for Ms Turton.
9 August 2001
The indictment was laid.
14 August 2001
Wild J fixed a tentative trial date for 15 October 2001 and directed that any pre-trial applications be filed by 22 August. It was then anticipated that the trial would occupy approximately six hearing days. Mr Winter appeared for both accused before Wild J. Shortly afterwards Mr Behrens withdrew and was replaced by Mr G Mason.
5 September 2001
Mr Winter filed a memorandum indicating there were no pre-trial matters but that the Crown would be put to its election to the extent there was duplicity in the charges laid under the Crimes Act and the Insolvency Act. Mr Winter also advised he had become aware that 8 October was a possible trial date but he would not be available that week due to a longstanding commitment to a preliminary hearing in Palmerston North. He confirmed that Ms Turton was adamant she wished him to continue to act on legal aid but he acknowledged that the Court might wish to have fresh counsel assigned if the matter were to proceed in the week of 8 October.
10 September 2001
Mr Winter filed a further memorandum advising that he understood the Court was keen to proceed with the fixture in the week of 8 October and that alternative counsel (a Mr Coles) was available to be assigned to act for Ms Turton. Mr Winter also advised Ms Turton did not wish counsel to be changed and wished to forego legal aid and fund the trial privately through family resources if she were able to retain counsel of her choice. On that basis, Mr Winter advised the Court that an adjournment would be sought until a date when he was available to conduct the trial.
11 September 2001
Both Mr Mason and Mr Winter appeared at callover and each sought an adjournment of the trial. That application was declined by Goddard J who confirmed the trial for 8 October. At an unspecified date (but we assume shortly after 11 September) the trial date was changed to 15 October. Mr Winter advised he would be overseas at that time and was not available. We have no material before us which would indicate that Mr Winter’s absence was anything other than on a good faith basis. Around this stage Mr Winter withdrew and was replaced for a short period by Mr Coles before Mr F Steedman was assigned as counsel to represent Ms Turton.
29 September 2001
Ms Turton was unable to keep an appointment Mr Steedman had made to meet her on this date.
4 October 2001
Mr Hill delivered a number of documents to Mr Steedman and, over the next few days, Mr Steedman familiarised himself with the file.
8 October 2001
Mr Steedman met with both appellants. After a lengthy meeting, Mr Steedman formed the view that his professional relationship with Ms Turton was “in trouble” for two main reasons. First, advice given by him on important matters was apparently at odds with advice given earlier to Ms Turton by Mr Winter. She made it very clear, in strong terms, that she relied on Mr Winter’s advice. Secondly, there was a difference of opinion between them about the extent to which Mr Steedman needed to obtain oral instructions from Ms Turton as distinct from the written materials provided by Mr Hill. Later in the afternoon, Mr Steedman received telephone calls from both appellants effectively revoking instructions given to him by Ms Turton earlier in the day on what Mr Steedman described as two major issues.
9 October 2001
Mr Steedman received a facsimile from Ms Turton dismissing him as counsel. Ms Turton stated that she considered Mr Steedman had not read the materials available to him. In any event, Mr Steedman had concluded by that time that he would not be able to represent Ms Turton due to the differences between them.
10 October 2001
After receipt of a lengthy memorandum from Mr Steedman setting out the prior history as it affected him, Nicholson J held two telephone conferences with Crown counsel, Mr Mason and Mr Steedman. Nicholson J decided that the trial should proceed. He noted that a “particular difficulty” was that an adjourned trial could not proceed before June 2002 and considered it was in the overall interests of justice for the trial to proceed on 15 October. He adjourned the hearing of pre-trial matters until the Friday before, 12 October. The Judge recorded in a minute made that day that Mr Steedman should appear on that occasion to formally withdraw, assuming those were his instructions.
12 October 2001
Further memoranda were filed by both Mr Steedman and Mr Mason. Mr Steedman advised the Court that he had spoken again with Ms Turton and indicated his willingness to act as her lawyer if she wished him to do so. However, the following day, he received a letter from Ms Turton confirming that his services were no longer required. Mr Steedman advised he would seek leave to withdraw at the commencement of the trial on 15 October. He also expressed the opinion in his memorandum that the attitude of both appellants towards him was such that he did not believe he could be of any assistance to the Court if appointed as amicus.

Mr Mason’s memorandum stated he had been advised verbally and in writing by Mr Hill that he wished to act for himself. The written instructions from Mr Hill were that Mr Mason was to be “a friend of the Court”. It was also Mr Hill’s wish that counsel advise on the pre-trial matters and perform certain “essentially clerical functions to assist in these preparations”. Mr Mason advised that the first “concrete indications” that Mr Hill was thinking of acting for himself were received on the morning of 11 October. Mr Mason considered it clear that Mr Hill had withdrawn counsel’s instructions and he advised the Court he proposed to seek leave to withdraw.
15 October 2001
When the case was called, Crown counsel, Mr Mason and Mr Steedman, appeared before Nicholson J. Defence counsel confirmed that in the circumstances they both sought leave to withdraw. Mr Mason advised that if required by the Court, he would act as amicus but he was not willing to act as a “friend in Court” as requested by Mr Hill. The Judge clarified that the latter expression meant that Mr Hill wished Mr Mason to act in effect as a McKenzie friend. The Judge then heard from the appellants and Crown counsel and decided that counsel should be granted leave to withdraw. The Judge also decided it would be inappropriate for Mr Mason to act either as amicus or as a McKenzie friend for Mr Hill. After an adjournment so that Mr Hill and Ms Turton could read the memoranda filed by both defence counsel on 12 October, the Judge heard argument from the appellants in support of an application by both for an adjournment of the trial.

Reasons for refusal of adjournment

[6] The Judge recorded that Mr Hill sought an adjournment on three grounds:
[7] The grounds Ms Turton advanced for an adjournment were:
[8] The Judge heard from Crown counsel, Mr Gibson QC. Mr Gibson informed the Court that one of the pre-trial issues earlier indicated by counsel for the accused was whether the evidence of a solicitor who had acted for Mr Hill and Ms Turton was admissible or whether it was the subject of legal professional privilege. Mr Gibson advised the Court that he was somewhat puzzled because there had been indications that one or both of the accused wished the solicitor to give evidence. After an inquiry by the Judge, Mr Hill advised that he did not want her evidence to be admitted.
[9] Mr Gibson said there were only two other pre-trial matters. One was an application by the Crown to amend the indictment on relatively minor issues in the nature of a “tidy up”. The other was an application by the Crown to call an expert on horse prices.
[10] As to the other matters raised by Mr Hill, Mr Gibson advised he had not received any prior indication there would be a challenge to the validity of searches undertaken and evidence obtained by them. He submitted that evidence as to the relationship between the appellants was relevant. The Crown alleged they were not only in a business relationship, but were also de facto partners. They had acted in concert to defeat creditors and to enable Mr Hill’s assets to be concealed from the Official Assignee, as well as taking steps to enable Mr Hill to continue managing the company. Mr Gibson submitted there was nothing unusual in the way the investigatory process had been carried out.
[11] The Judge then expressed the view that the amendment to the indictment was a minor matter and said he was willing to hear submissions on the Crown’s application in that respect. The Judge also indicated that the evidence from the expert witness was within a narrow compass and was not of sufficient magnitude to justify an adjournment. He advised Mr Hill could cross-examine the witness, noting that he had experience in the relevant industry. The Judge stated that, should Mr Hill wish to call rebuttal evidence and in the event of his requiring an adjournment for that purpose, the Judge would consider an appropriate application.
[12] The Judge expressed some scepticism about the challenge to the validity of the searches, noting that the Court had been advised some time previously that there were no pre-trial matters except the possibility of the Crown being put to its election over duplicated charges. Notwithstanding that, the Judge said that, in the interests of justice, he would hear any application by Mr Hill or Ms Turton in that respect. He advised that if that would delay the start of the trial, then that would be accommodated.
[13] The Judge then stated as follows:

Because looking at this matter in its overall context and the circumstances which I have outlined, I have formed the view that there is a strong element of prevarication in this matter. On the face of the evidence given at the preliminary hearing, Mr Hill has engaged in a course of deception and prevarication for a considerable while to try to avoid the effects of insolvency and to defeat the claims of creditors. Whether or not that has real foundation I do not know and that is, of course, the subject of the trial. But on the basis of that evidence there is a foundation for believing that Mr Hill and Ms Turton are using means to avoid the resolution of issues.


There is the further factor that because of other Court commitments any adjourned trial could not start I am told earlier than June of next year. There is the factor that the Court has arranged for this trial to start today and witnesses have been arranged. I do not consider that any element of injustice which may arise is of such magnitude as to cause me in balancing the other considerations to consider that it is in the interests of justice that an adjournment be given. The present situation is very much of Mr Hill and Ms Turton’s own making. Looking at the matter overall, I consider that the interests of justice require that the trial proceed.


I accordingly decline the adjournment application.

[14] The Judge noted it was then 1.30 pm. He said he would adjourn until 2.30 pm when he would hear pre-trial matters with the jury to be empanelled the following day. If pre-trial matters had not been concluded by 10 am the following day then, after empanelling the jury, they would be stood down until such time as the pre-trial matters were completed. The Judge then concluded as follows:

I am concerned that each accused is unrepresented. It is very much to the benefit of accused people and to the Court that accused be represented so that the correct legal position can be explained to them, so that they can get appropriate advice, so that they can have counsel experienced in the law to question, to advise and to help them. In the course of conduct that they have undertaken, Mr Hill and Ms Turton seem to have deliberately closed the door on receiving such assistance and in that unfortunate situation the Court has no real alternative if it is to administer justice than to proceed. The trial will undoubtedly be longer. It will be more difficult. I will do my best to ensure it is a fair trial. As I have told Mr Hill I will advise him and Ms Turton on matters of procedure. I will assist them as much as I can. However, I must and will be neutral. I cannot take over a role as their counsel officially or unofficially and given them legal advice. That must be the situation. So we will proceed upon the basis as I have stated.

Initial bail decision - 15 October

[15] Later that same day, the Judge considered bail applications by both appellants. In declining bail, the Judge repeated his earlier observation that the evidence given at the preliminary hearing disclosed a history of deception and prevarication. He expressed concern that if granted bail, one or both of the accused would fail to appear and the trial would need to be aborted. He took into account the nature of the offending, the strength of the evidence, the probability of a conviction, and the strong prospect there might be imprisonment in the event of conviction. The Judge noted a submission by Mr Hill that there was a lot of work to be done to prepare for trial and that he wished to summon witnesses. Mr Hill also submitted to the Judge that he would be inhibited in doing that if he were in custody.
[16] The Judge acknowledged this factor. He also accepted that Ms Turton had responsibilities for the running of a taxi company and needed to attend to certain horses. However, the Judge observed that these were matters each accused should have considered before coming to Court and should have sought legal advice from the lawyers then acting for them. The Judge also stated:

It is rash indeed to come to Court facing charges of this gravity expecting to get bail virtually as of right.

[17] Overall, the Judge considered, having regard to the evidence presented and the conduct of each of the accused up to that point, that there was “a considerable temptation for them to now pull the plug on this trial by not attending ...”.

Pre-trial matters

[18] The Court records disclose that the jury was empanelled on 16 October 2001 with each accused challenging six jurors. The Judge then spent the rest of the day hearing argument on the pre-trial matters. Later in the afternoon of that day, the Judge made rulings on several issues:
[19] We record that the Judge gave a written statement to both appellants prior to the empanelling of the jury which set out their rights to jurors challenge, a full description of the trial process, and the order in which it would proceed. The Judge also later gave a second statement to the appellants in written form which complied with the obligation under s 364 of the Crimes Act to advise an unrepresented accused about his or her rights in relation to the giving of evidence. This second statement also contained written material about the onus of proof under ss 126(1)(f)(i) and 126(1)(g)(i) of the Insolvency Act. We will refer later to submissions made to us on the onus of proof issue.

Second bail application – 17 October

[20] Crown counsel opened to the jury on Wednesday 17 October. Mr Hill was permitted to make an opening statement under s 367(1)(a) of the Crimes Act but Ms Turton advised she did not wish to make any opening statement.
[21] On the same day, the Judge heard a further application for bail. For that purpose, legal aid was granted to Mr Mason to act on behalf of both appellants. Both appellants were willing to have Mr Mason make representations on their behalf in relation to bail. The Judge recorded Mr Mason’s submissions on s 24 of the New Zealand Bill of Rights Act (NZBORA) and concerns expressed by the appellants about the problems in conducting their defence from prison. In particular, reference was made to difficulties in obtaining documents and contacting witnesses. Mr Mason submitted to the Court that even if there were a limited grant of legal assistance for the purpose of obtaining documents and contacting witnesses, there would still be considerable impediment to the conduct of the defence. The Crown maintained a position of neutrality on bail as it had when the issue was first considered on 15 October.
[22] Despite the submissions made, the Judge remained of the view that bail should be declined. He referred to evidence that the appellants had changed their names for the purposes of avoiding responsibility and for the purposes of deception. He referred again to the pattern emerging from the depositions of evasion and prevarication by Mr Hill. He observed that Ms Turton seemed to have gone along with Mr Hill in that respect. He remained of the view there was a real and substantial risk that one or both the accused might fail to appear in Court if bail were granted.
[23] The Judge then noted that steps should be taken to assist the appellants in conducting their case while still in custody. The Judge stated:

I note that legal aid has been granted so that in the event that the bail application is unsuccessful then counsel, Mr Mason, can assist the accused with trial documents and summonsing of witnesses. I would regard it as a legitimate disbursement for him to claim from the Legal Aid Board the cost of a reasonable cellphone card or cards for Mr Hill to be able to contact people from the position of custody and it would be within the terms of legal aid for Mr Mason to attend both accused to obtain instructions and assist them to obtain documents which they do not have with them and obtain computer data. He can also, of course, assist in the contacting of proposed witnesses and the issue and service of summons.


However, as stated in my decision when granting him leave to withdraw, I consider it wholly inappropriate that he act in effect as a McKenzie Friend in Court because that would be repugnant to the role of a lawyer who was prepared to act as counsel but was restricted in so acting and would understandably cause Mr Mason considerably professional and perhaps ethical difficulties. However, I request Mr Mason to act in the limited role for which legal aid has been granted, to assist each accused to obtain documents which they otherwise cannot have access to from prison and to contact and summons witnesses. I realise it may not be an easy task but I am confident that Mr Mason will carry it out with competence and professional ability and integrity.

Bail granted for Ms Turton – 19 October

[24] At the end of the first week of trial, Mr Mason made a further bail application on behalf of Ms Turton. No further application was made on behalf of Mr Hill. The Judge recorded that the decision was made on the basis that Ms Turton’s health was being affected by her remand in custody, particularly while on overnight bail at the local police station in what the Judge described as rather basic conditions. As well, Ms Turton’s parents indicated they were prepared to act as sureties. The Judge noted that he had observed Ms Turton’s conduct over the past two days and she seemed to be having considerable emotional difficulties which the Judge considered had been aggravated by her being kept in custody. He therefore granted bail on strict conditions. Ms Turton was released from that date.

Conduct of the trial

[25] The Court record shows that Mr Hill took a very active part in the trial. He cross-examined the Crown witnesses and raised with the Judge a series of objections to matters such as the refreshing of memory by a witness, as well as raising matters of procedure and evidence. In contrast, the transcript reveals that Ms Turton asked very few questions, appearing to leave matters to Mr Hill.
[26] The Crown case ended on or about 29 October. In a ruling given on 1 November, the Judge dealt with complaints raised by both appellants about the course of the trial. Mr Hill’s first complaint was that he was unable effectively to cross-examine the Crown witnesses because he did not have with him documents which he would have put to them. The Judge noted that, as far as he could recall, Mr Hill had not drawn such matters to his attention at the time, even though he had raised other matters with the Judge in the absence of the jury. The Judge also noted that evidence had not commenced until the afternoon of 17 October when the Crown called two witnesses that afternoon. The Judge observed that it was then that the grant of legal aid to Mr Mason was confirmed to enable him to assist both accused in obtaining documents and in the summoning of witnesses. The Judge was of the view that they had received an adequate opportunity to obtain documents if they wished.
[27] Mr Hill’s second complaint was that he was being restricted in the production of documents he wished to produce by objections raised by Mr Gibson as to their admissibility. The Judge recorded that he had given Mr Hill considerable flexibility in allowing him to refer to documents and to produce them. However, where a document was manifestly inadmissible, he could not permit its production. The Judge also noted that he had permitted some documents to be produced by Mr Hill, even though they had not been put to the relevant Crown witness. The Judge observed that he was doing his utmost to ensure a fair trial for both accused and advised them of the procedure which should be used when they intended to produce documents.
[28] A third criticism by Mr Hill about the conduct of Crown counsel was dismissed as unsupported by any evidence.
[29] Ms Turton had two main concerns. The first was about objections made to the admissibility of evidence which Mr Hill was seeking to produce and the second was to reiterate her complaint about being unrepresented. The Judge indicated that he did not see any reason to change the views he had previously expressed in relation to the issue of representation and the issue about documents had already been dealt with. Concerns expressed again by Ms Turton about the admissibility of the evidence of the solicitor had already been ruled upon.
[30] On the basis of certain statements made by the appellants in chambers, the Crown applied later in the day on 1 November for Ms Turton’s bail to be revoked on the ground that the statements made increased the likelihood that Ms Turton would not attend as a means of aborting the trial. It appears the Crown submitted that the trial should be stopped until legal representation was found for the appellants. We infer that the Crown made this submission not out of concern for the appellants but because Crown counsel considered the statements by the appellants to be inappropriate or unnecessary. The Judge decided, on balance, not to revoke bail, observing that it was not necessarily a foregone conclusion that the trial would stop if Ms Turton failed to answer her bail.
[31] The Crown case concluded on 30 October and Mr Hill elected to give and call evidence. He opened to the jury, advising the Court he might call up to ten witnesses. He then gave his evidence at considerable length. The Judge addressed the jury about the possibility that the trial would continue beyond that week and into a fourth week. The Judge informed the jury that it was important in the interests of a fair trial that Mr Hill be given a very full opportunity to present his evidence, even though at times there might be some question as to its relevance. Mr Hill continued to give his evidence on 31 October and on 1 and 2 November.
[32] It is evident from the transcript that, at times, the Judge directed Mr Hill not to continue with evidence on topics the Judge considered to be irrelevant. As well, there were occasions in the course of Mr Hill’s evidence when documents were ruled to be inadmissible and other occasions when the Judge referred to Mr Hill’s failure to put to the Crown’s witnesses documents which he later wished to produce in the course of his own evidence. However, we are not persuaded that any of these rulings were wrong or that Mr Hill was materially disadvantaged in the conduct of his trial.
[33] Mr Hill was cross-examined at some length by Crown counsel and then gave further evidence in re-examination. He called six witnesses to give evidence on his behalf before concluding his case.
[34] Ms Turton elected not to give or call evidence.
[35] By that stage, the trial had occupied some four weeks. The Judge then spent time hearing legal argument and on Monday 12 November, advised the jury that he was formally discharging the appellants on count 1.
[36] After hearing closing addresses for the Crown and both the appellants, the Judge summed up to the jury on 13 November. The jury found that Mr Hill was guilty of ten counts but not guilty of nine others. Ms Turton was found guilty of seven counts but not guilty of six others.

Grounds for appeal by the appellant Mr Hill

[37] It was submitted by Ms Levy on behalf of the appellant Mr Hill that his rights under NZBORA s 24(b), (c), (d) and (f) were breached in four respects:
[38] Section 24 relevantly provides:

24 Rights of persons charged

Everyone who is charged with an offence—

...

(b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and

(c) Shall have the right to consult and instruct a lawyer; and

(d) Shall have the right to adequate time and facilities to prepare a defence; and ...

(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and ...

Refusal of adjournment application

[39] We say immediately that we agree with the trial Judge’s view that the situation in which Mr Hill found himself was very much one of his own making. Mr Mason had been instructed as assigned counsel under the provisions of the Legal Services Act 2000 from a date shortly after the hearing before Wild J on 14 August when a tentative trial date of 15 October was set. He continued to be available and was willing to act for Mr Hill throughout, provided he was retained on the usual basis to represent Mr Hill in all aspects of the trial. It was not suggested that Mr Mason was anything other than competent or that he did not enjoy the confidence of Mr Hill.
[40] It was not until 11 October, on the Thursday prior to the commencement of the trial the following Monday, that Mr Hill first advised Mr Mason he was thinking of acting for himself. Mr Mason advised the Court on 12 October that he considered Mr Hill had withdrawn his instructions and that he would seek leave to withdraw.
[41] It is perfectly clear that Mr Hill wished to represent himself but sought Mr Mason’s assistance to advise him about limited aspects of the trial. For understandable reasons, Mr Mason declined to act as a “friend in Court” as requested by Mr Hill but indicated that he would, if appointed by the Court, act as amicus.
[42] There is no dispute that every application for an adjournment is to be considered on its own facts. The mere fact that a refusal of an adjournment may result in the withdrawal of counsel leaving the accused unrepresented is not, by itself, a ground for an adjournment: R v West [1960] NZLR 555 (CA). The Court is entitled to have regard to whether an accused may be seeking to manipulate the system by unco-operative behaviour and may also have regard to the public interest in the prompt and efficient administration of justice. In the end, however, the fundamental requirement must be that the accused receives a fair trial. Where the refusal of an adjournment might have given rise to the substantial possibility of a miscarriage of justice, a retrial may be ordered: R v Ru (2001) 19 CRNZ 447 at paragraph [14].
[43] We are satisfied that Mr Hill’s dilemma arose entirely from his own conduct in declining, on the eve of his trial, to have Mr Mason act on his behalf as his assigned counsel when he was willing and able to do so. It may be that Mr Hill was not as well served by representing himself as he would have been had he accepted assigned counsel to act on his behalf. However, for reasons we elaborate in more detail below, we are not persuaded that there is any real possibility of a miscarriage of justice having occurred as a result. The trial Judge was quite entitled to have regard to the delay before a new trial could occur and to the cost and inconvenience to the Crown by delaying the trial when witnesses had been briefed and were standing by to give evidence.
[44] We also bear in mind that the trial Judge had the opportunity to examine the depositions evidence and had the advantage of seeing and hearing from both appellants and their counsel at the relevant times. On that basis, we would be slow to interfere with the Judge’s assessment that there was reasonable cause to suppose that Mr Hill had engaged in a course of deception and prevarication with regard to his creditors, and that there were reasonable grounds to believe he was attempting to avoid a resolution of the issues.
[45] We conclude that the Judge properly exercised his discretion to refuse an adjournment in the case of the appellant Mr Hill. We also conclude that there was, in the circumstances, no breach of any of the provisions of s 24 of the NZBORA as a result of the lack of legal representation for Mr Hill at trial. He had the opportunity for normal legal representation on legal aid and chose not to avail himself of it. Effectively, he waived his right to such representation and cannot now be heard to complain of it.

Should Mr Mason have been appointed as a McKenzie friend?

[46] Ms Levy submitted not only that the Judge should have appointed Mr Mason as a McKenzie friend for the accused, but also that Mr Mason was under a duty to act for Mr Hill in that capacity if required to do so by Mr Hill. This novel proposition was based on a submission that the right to receive legal assistance under s 24(f) is not limited to full legal representation in the usual manner but could embrace more limited forms of assistance such as acting as a McKenzie friend, the preparation of legal submissions, the giving of legal advice or arranging witnesses and documents.
[47] Ms Levy referred to the definition of legal services in s 2 of the Legal Services Act (which refers to assistance with steps preliminary or incidental to any proceedings) and to s 8(b) which also mentions “legal assistance” in criminal proceedings. She submitted there was a difference between “legal assistance” in criminal proceedings under ss 6 and 8 of the Act, and “legal representation” in civil proceedings under s 7(1)(e) of the Act. She also referred to s 55 of the Act and to rule 1.02 of the Rules of Professional Conduct for Legal Practitioners which relates to the obligation of a practitioner not to refuse to accept instructions for services within his or her field of practice without good cause.
[48] In terms of s 354 of the Crimes Act, every person accused of a crime “may make his full defence thereto by himself or by counsel”. It has also been recognised that an accused person may be permitted to be represented by a McKenzie friend. As noted by Hardie Boys J in Mihaka v Police [1981] 1 NZLR 54, 56, an unqualified person acting as a friend of a litigant may be permitted to sit beside him in Court, to take notes, to quietly make suggestions to the litigant and give advice, and to propose questions and submissions to the litigant who may put them to the Court. It is clear, however, that the friend is not permitted to address the Court by way of making submissions or asking questions. Only practitioners and parties representing themselves have a right of audience before the Court.
[49] As Williams J recognised in R v Mitchell (1992) 9 CRNZ 537, 542, the Court may restrict or modify the assistance provided by a McKenzie friend, especially where a litigant has deliberately elected not to have legal representation which has been offered.
[50] It is unnecessary for us to decide whether an accused person has a right to a McKenzie friend in criminal proceedings. But we observe that a Judge must always retain the ability (subject to statute and the common law) to control the proceedings in his or her Court: see the discussion of Hardie Boys J in Mihaka at 58.
[51] Nor is it necessary for us to determine whether a legally qualified person may be a McKenzie friend. Reference is made to a “professional man” giving assistance as a friend of a party in Collier v Hicks [1831] EngR 686; (1831) 2B & Ad 663; 109 ER 1290, a statement re-affirmed in McKenzie v McKenzie [1970] 3 All ER 1024.
[52] However, we are not aware of any authority for the proposition that a legal practitioner could be permitted to act as a McKenzie friend. There are obvious difficulties in that respect. For example, would legal professional privilege apply as between the accused and a lawyer acting as a McKenzie friend? What duties would a lawyer acting as a McKenzie friend owe to the Court as distinct from any duties that might be owed to the accused? What liability might the lawyer have to the accused; and what control would the Court have over a lawyer acting as a McKenzie friend rather than an advocate in the usual sense?
[53] Difficulties of this kind have led the Courts of New South Wales and Queensland generally to refuse to allow the use of McKenzie friends in criminal proceedings: R v E J Smith [1982] 2 NSWLR 608; NSW Bar Association v Livesey [1982] 2 NSWLR 231; and R v Burke [1992] 56 A Crim. R 242. As Gibbs CJ observed in Smith at 534:

... when the accused has been offered legal aid but has refused it and nevertheless desires to have a barrister appear as a “McKenzie friend”, it would be understandable if the Judge regarded his application with some scepticism.

[54] We say it is unnecessary to decide these issues because we are clear that a lawyer (whether funded privately or under the Legal Services Act) cannot be obliged to accept the role of McKenzie friend unless he or she is willing to do so. The short answer to this ground of appeal is that Mr Mason made it clear he was not willing to act in that capacity. We are satisfied he was under no obligation to do so.
[55] The availability of legal aid under the Legal Services Act and its predecessors for the usual form of representation in criminal cases plainly satisfies the right under NZBORA s 24(f) “to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance ...”. Here, such assistance was available but Mr Hill chose, for his own reasons, not to avail himself of Mr Mason’s services in the manner offered.

Should Mr Mason have been appointed as amicus?

[56] In argument before us, Ms Levy did not strongly press the proposition that the Judge ought to have appointed Mr Mason to act as amicus curiae for Mr Hill. She was right not to do so. The appointment of counsel to assist the Court in criminal cases is likely to be rare given the availability of legal aid under the Legal Services Act. There may be unusual circumstances in which the Court will appoint counsel to act as amicus but any such appointment is entirely at the discretion of the Court.
[57] We have found little New Zealand authority on the point but as Brennan CJ observed in the High Court of Australia decision of Levy v Victoria (1997) 189 CLR 579, at 604-605:

The hearing of amicus curiae is entirely in the Court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.

...

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

[58] As noted in The Laws of Australia, Criminal Procedure 11.9:

Permission to appear as an amicus curiae is “entirely in the Court’s discretion”, and should only be granted if an applicant can demonstrate that “the parties whose cause [he or she] would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case.


An amicus curiae neither acts as the legal representative of an unrepresented accused person nor otherwise appears as his or her personal representative.

[59] In the present case, Mr Hill made it clear he wished to represent himself. The appointment of Mr Mason as amicus in those circumstances would not have fitted comfortably with Mr Hill’s chosen course of action. If appointed as amicus, Mr Mason’s responsibility would have been to assist the Court and not to represent or to speak on behalf of Mr Hill. In that role, Mr Mason’s duty to the Court may well have conflicted with advice he might have given Mr Hill if he were acting on his behalf as counsel in the ordinary way. We very much doubt that was Mr Hill’s intention. Rather, he wanted to have legal assistance on his terms when or if he wished to avail himself of it. We are satisfied the Judge was right to exercise his discretion against the appointment of Mr Mason as amicus.

The refusal of bail for Mr Hill during the trial

[60] We are not persuaded that the Judge was wrong to refuse bail to Mr Hill during the trial for the reasons the Judge gave. We agree that accused persons should not assume they will be granted bail during the course of trial. Where, as in the present case, the Judge perceives there is a real risk that an accused person may not appear and thereby create the potential for an aborted trial, it is well within the discretion of the trial Judge to refuse bail during the course of the trial.
[61] We acknowledge that the refusal of bail, particularly where an accused is unrepresented, may sometimes create additional difficulties for an accused in presenting his or her case, calling evidence, arranging documents and matters incidental to the trial. However, in this case, legal aid was granted to Mr Mason for the limited purpose of assisting Mr Hill in matters incidental to the trial and we are not persuaded that Mr Hill was placed at any real disadvantage as a result of being held in custody during trial. It is ordinarily expected that preparation for trial, including the summoning of witnesses, will have taken place prior to the trial. With a trial extending over four weeks, there was also ample time to prepare further documents or summon further witnesses during the course of the trial. In that respect, the Crown case occupied the whole of the period from 17 to 30 October before Mr Hill was required to elect whether to give evidence.

Did Mr Hill receive a fair trial?

[62] Bearing in mind the fundamental requirement that an accused person is entitled to a fair trial (s 24(a) NZBORA), we now consider whether the refusal of the adjournment or the absence of legal representation resulted in an unfair trial. We have already mentioned there were occasions when Mr Hill encountered difficulties in attempting to introduce irrelevant evidence and in failing to put documents to Crown witnesses which he later endeavoured to produce. There were similar difficulties at times when Mr Hill gave evidence on matters of fact which had not been put to Crown witnesses. The transcript shows, however, that the Judge extended considerable liberty to Mr Hill during the course of the trial, taking the view in the end that it was better to allow Mr Hill to place before the jury as much material as he wished unless it was obviously irrelevant or inadmissible.
[63] It is true that the Judge, responding to criticism made by Crown counsel, observed that any failure by Mr Hill to put matters or documents to Crown witnesses could be taken into account when the jury was considering issues of weight, but we are not persuaded that these matters were of sufficient substance to give rise to any unfairness to him.
[64] We note from the transcript that Mr Hill was able to cross-examine Crown witnesses extensively and gave lengthy evidence on his own behalf, as well as calling a number of witnesses. His efforts could not be described as perfunctory or inept. The jury’s verdict shows that Mr Hill achieved a measure of success, notwithstanding the fact that he was representing himself as he had chosen to do.
[65] We do not accept the complaints about difficulties in arranging witnesses or documents for the reasons we have already stated.
[66] It is true that a few days into the trial, the jury expressed some concern that the appellants needed help with their defence. The Judge briefly explained to the jury the circumstances which had led to the dismissal by the appellants of their counsel and advised the jury that he was endeavouring to help the appellants as much as he could to ensure they received a fair trial. The Judge directed the jury that they were not to allow the fact that the appellants were unrepresented to influence them either for or against either of them.
[67] We have mentioned the complaints made by the appellants to the Judge during the course of the trial. The Judge dealt at length with all the issues raised and we are satisfied he did so fairly.
[68] In summary, we are not persuaded there was any breach of s 24 of the NZBORA in Mr Hill’s case, nor any prejudice or unfairness to him in the conduct of his trial arising from any of the matters raised on appeal whether considered individually or in combination.

The case for the appellant Ms Turton

[69] For Ms Turton, Mr Lithgow relied on two main grounds in support of her appeal which he submitted had led to a miscarriage of justice:
[70] Dealing with the first ground, we agree with Mr Lithgow that very different considerations apply to Ms Turton’s case. Unlike Mr Hill, Ms Turton made it clear at all times that she wished to be represented by counsel. Mr Winter had been appointed to act for her on legal aid from the time of the committal in June 2001 and she consistently maintained that she wished Mr Winter to represent her. When the probable trial dates became known and Mr Winter advised he would not be available, the Court was advised on 10 September that Ms Turton did not wish to change her counsel and that if necessary, she would forego legal aid and fund the trial privately through family sources if she were able to retain Mr Winter, her counsel of choice.
[71] After Goddard J refused the adjournment sought by both Mr Mason and Mr Winter on 11 September, Mr Winter was obliged to withdraw because he would be overseas at the date of trial. Mr Steedman was appointed to act as legal aid counsel on Ms Turton’s behalf shortly after that time, but it became evident by 8 October (just over a week before trial) that there were fundamental differences between Mr Steedman and Ms Turton. We do not attempt to identify where the fault lay for the difference between Ms Turton and her then counsel, but it is clear that Mr Steedman’s advice on important issues was at odds with advice Ms Turton had received from Mr Winter. Mr Steedman himself acknowledged that in the light of those differences their professional relationship was “in trouble” and he would not be able to represent her as a result.
[72] There is some evidence suggesting Mr Hill was playing a part in the issue of Ms Turton’s legal representation and was involved to an extent in providing material to Ms Turton’s counsel for the purpose of her defence. Obviously, they had a common interest in the defence of the case. But Ms Turton would ordinarily be entitled to separate legal representation if she wished to have it so that her separate position could be focussed upon to the exclusion of other considerations. That is plainly what she was seeking to achieve.
[73] Undoubtedly Ms Turton dismissed Mr Steedman as counsel but it is clear that Mr Steedman himself had formed the view that he would not be able to represent Ms Turton in any event in view of the differences which had arisen between them in their professional relationship.
[74] Plainly, the Judge formed the view at the time that both Mr Hill and Ms Turton were using means to avoid the resolution of issues and he also concluded that their situation at the commencement of the trial was very much of their own making. However, the material before us does not support the Judge’s conclusion in the case of Ms Turton that she had “deliberately closed the door” on receiving legal assistance. In fact, she was continuing to make it clear that she wished to have legal assistance and sought an adjournment so that she could retain counsel of her choice.
[75] Ms Turton had, from the outset, strongly expressed the view that she wished to have Mr Winter represent her. If necessary, she was prepared to pay for him to represent her on a private basis. It was not a case where, shortly before trial, the accused dismissed counsel who was otherwise willing and able to act for her. Given the previous advice Ms Turton had received from Mr Winter, it is not surprising that she experienced a lack of confidence in Mr Steedman when his advice was in contradiction to that earlier received. In making that observation, we make no criticism of either Mr Winter or Mr Steedman because we are in no position to judge whose advice was correct. What is significant is that both Ms Turton and Mr Steedman agreed that their professional relationship had struck problems at a late stage such that Mr Steedman felt he could not properly represent her.
[76] We are not persuaded that any fault on Ms Turton’s part was such that she should be treated as waiving her ordinary right to legal representation secured by s 24. To the contrary, she made it clear at all times that she wished to have Mr Winter represent her and was prepared to pay for his services.
[77] We appreciate that the need to secure legal representation for Ms Turton would have meant an adjournment of the trial, at least as far as she was concerned. If the trial were to continue in respect of the charges against Mr Hill, then, effectively, an adjournment of Ms Turton’s case would have resulted in the severance of their trials. That might well have been undesirable given that Ms Turton was charged as a party to the offending alleged against Mr Hill. If there were not to be separate trials, then the only alternative for the Judge would have been to adjourn both cases to a suitable time when they could have been heard together.
[78] The trial Judge was faced with a difficult decision given the exigencies of the pending trial, the view he had formed that there was a degree of prevarication involved, and the influence he considered Mr Hill was exerting on Ms Turton. But Ms Turton was entitled to separate legal representation under ss 24(c) or (f) in circumstances where she wished to be represented and the absence of available representation could not reasonably be attributed to fault on her part. The effect of the refusal of the adjournment was to deprive her of legal representation and we are satisfied that the Judge was plainly wrong to have done so.
[79] Even if the decision of the Judge at the time could have been supported, as matters transpired, the lack of legal representation led to a real possibility of a miscarriage of justice in Ms Turton’s case. An examination of the transcript shows that she asked very few questions and that she neither gave nor called evidence on her own behalf. Plainly, she relied primarily on Mr Hill to conduct a defence on behalf of both of them. Where a person is charged as a party, there are wholly different considerations from those applicable to a principal offender. While there are matters in common, the issues of knowledge by the alleged party and the nature and degree of assistance rendered to the principal usually become matters of prime importance. As well, party issues can give rise to considerable complexity as we later discuss. The advice of a lawyer in relation to those matters could have been crucial to her defence. We have also considered the observation by the trial Judge that the experience of being held in custody during the first week of trial adversely affected Ms Turton’s emotional wellbeing. We do not, however, regard that factor as having hampered her defence.

Onus of proof

[80] Mr Lithgow submitted that the Judge had misdirected the jury with regard to the onus of proof in relation to the alleged liability of Ms Turton as a party to the offending committed by Mr Hill as the principal under ss 126(1)(f)(i) and 126(1)(g)(i) of the Insolvency Act. The statute relevantly provides:

126 Crimes by bankrupt

(1) Every person who is adjudged bankrupt commits a crime and is liable on conviction on indictment to imprisonment for a term not exceeding 3 years who—

...

(f) After the presentation of a bankruptcy petition by or against him, or within 2 years next before such a presentation:

(i) Conceals, destroys, mutilates, or falsifies, or is a party to the concealment, destruction, mutilation, or falsification of, any book or document affecting or relating to his property or affairs, unless it is proved that he had no intent to conceal the state of his affairs or to defeat the law; or ...

(g) After the presentation of a bankruptcy petition by or against him or within 2 years next before such a presentation:

(i) Conceals any part of his property to the value of $50 or upwards, or conceals any debt due to or from him, unless it is proved that he had no intent to defraud; or ...

[81] Mr Lithgow accepted that the Judge correctly directed the jury on the onus of proof so far as it related to Mr Hill’s responsibility as principal. The Judge directed that the onus was on the Crown to prove beyond reasonable doubt under s 126(1)(f)(i) that Mr Hill, as a bankrupt, had, within the relevant period after the presentation of the bankruptcy petition against him, falsified documents affecting or relating to his property or affairs. And, under s 126(1)(g)(i), that Mr Hill, as a bankrupt, had, within the relevant period after the presentation of a petition against him, concealed any part of his property to the value of $50 or upwards. The Judge also correctly directed the jury that the offence was then complete in each case unless the appellants proved, on the balance of probabilities, that Mr Hill had no intent to conceal the state of his affairs or to defeat the law (s 126(1)(f)(i)) or if he proved that he had no intent to defraud (s 126(1)(g)(i)).
[82] The substance of Mr Lithgow’s submission was that when dealing with Ms Turton’s responsibility as a party, the Crown was required to prove beyond reasonable doubt that Ms Turton knew not only that Mr Hill was carrying out the acts in question, but also that she knew he had an intent to conceal the state of his affairs or to defeat the law or an intent to defraud (as the case may be).
[83] Mr Lithgow submitted that the Crown had to establish Ms Turton’s knowledge of the relevant intent without the benefit of the reverse onus. In support of that submission, he relied on the decision of this Court in R v Samuels [1985] 1 NZLR 350 which dealt with the presumption under s 6(6) of the Misuse of Drugs Act 1975. The principal Mr Kaio was found to be in possession of a controlled drug but the Court was dealing with the alleged participation of Mr Samuels as a party. In terms of s 6(6) of that Act, where a person is found to be in possession of 28 grams or more of cannabis plant, he or she is deemed to be in possession of a controlled drug for the purpose of supply until the contrary is proved.
[84] At 356, Cooke J (delivering the judgment of the Court) noted that the gist of the Judge’s direction to the jury on the basis of Mr Samuels’ responsibility as a party was that, although he was not himself in possession of the cannabis, he knew that Mr Kaio as the principal had more than 28 gm and intended to aid Mr Kaio’s possession of it. In those circumstances, Mr Samuels could be found guilty of aiding and abetting in the possession of the drug for sale or supply.
[85] This Court found that the Judge had effectively directed the jury that Mr Samuels’ knowledge could be established by virtue of the presumption as distinct from any possibility that the jury might infer that because Mr Samuels knew that Mr Kaio had such a large quantity of cannabis, he must also have intended to help him have it as stock in possession for sale and supply. Cooke P then stated:

While the Judge's approach is understandable, we think that it involves reading too much into s 6(6). A statutory provision shifting the onus regarding mens rea for a serious crime is obviously not one to be construed at all loosely.


The wording of s 6(6) has the result that when a defendant is charged as an accessory to an offence under s 6(1)(f) and it is proved that the alleged principal offender was in possession of a quantity raising the presumption, the latter person is deemed to have been in possession for the purpose charged. The contrary may be proved by any form of evidence. In some cases it would no doubt be difficult for the alleged accessory to discharge that onus. But this does not produce injustice, for it only assists the prosecution to prove against the alleged accessory the commission of the principal offence. The onus is still on the prosecution to prove beyond reasonable doubt that the alleged accessory had the mens rea ordinarily required to make him a party to the offence.


The essence of aiding and abetting is intentional help. So, to establish the alternative basis against Samuels, the Crown had to satisfy the jury, without the aid of any presumption, that he knew that Kaio had the cannabis and intended to help Kaio to have it in possession for sale or supply. We see nothing in s 6(6) to shift the onus as to proof of the necessary mens rea for aiding and abetting. Parliament has simply not addressed itself to that point. The normal rule applies.

[86] The structure of ss 126(1)(f) and (g) differs in some respects from s 6 of the Misuse of Drugs Act, but we are satisfied that the principle established in Samuels should also apply to accessories charged under the relevant provisions of the Insolvency Act.
[87] Although s 6(1)(f) of the Misuse of Drugs Act refers expressly to possession of a drug for a specified purpose such as supply, the clear implication of the relevant provisions in the Insolvency Act is that the intention which the bankrupt may endeavour to exclude under ss 126(1)(f) and (g) is an element of the offences, rather than a defence to them. The section effectively reverses the usual onus of proof of mens rea so far as it relates to the bankrupt as principal. The correct interpretation of s 126(1)(f)(i) is that the offence contains the following elements (relevant on the present facts):
[88] In the case of the principal (Mr Hill), the Crown is required to prove the first two elements beyond reasonable doubt but proof of the third element is presumed unless it is proved on the balance of probabilities that the bankrupt had no intent to defraud: R v Gray (CA389/97, 19 November 1997). The onus of proof in that respect lies on the bankrupt as principal.
[89] However, the statute is silent as to the application of the presumption to accessories. We consider that Parliament could not have intended to place upon Ms Turton as an alleged accessory, the burden of proving Mr Hill’s state of mind at the time the documents were falsified. The burden of proving the state of another’s mind at any particular time is considerable, particularly bearing in mind that the act or acts in question could have occurred up to two years prior to the presentation of the petition at a time when financial difficulties in the bankrupt’s affairs may not have been evident.
[90] We see no reason to depart from the conventional principle embedded in the criminal law that, in the absence of a clearly expressed statutory intention to the contrary, the burden must remain on the prosecution to establish all essential elements of the offence, including the relevant mens rea.
[91] It follows that the Crown was required to prove beyond reasonable doubt against Ms Turton as accessory not only the first two elements identified in paragraph [87], but also that she knew Mr Hill intended to conceal the state of his affairs or to defeat the law and actively assisted him to achieve his purpose. The presumption applicable in the case against the principal is not applicable to an accessory.
[92] The same approach applies to s 126(1)(g)(i). The elements relevant on the facts were:
[93] The Crown must prove the first two elements beyond reasonable doubt but, in the case of the bankrupt charged as principal, the onus then passes to him or her to prove the absence of intent to defraud on the balance of probabilities. In the case of an accessory, the Crown must prove beyond reasonable doubt not only the first two elements, but also that the accessory knew the principal was acting with intent to defraud and actively assisted him to achieve his purpose.
[94] We have directed our remarks to the position of a party under s 66(1) of the Crimes Act in the form of active assistance. But our conclusions apply equally to the other ways in which a party might be found guilty under s 66(1) and to the common purpose provisions of s 66(2). In each case, the onus of proof of all essential elements is on the Crown in relation to a case brought against a party.
[95] We conclude that, in relation to Ms Turton, the Judge misdirected the jury as to the onus of proof.
[96] Mr Lithgow also submitted there was a further misdirection in relation to onus of proof when the Judge stated:

Proof beyond reasonable doubt is a heavy standard of proof and using the illustration of the scales of justice, to prove that would mean that it would have to be substantial proof which would push the scales substantially down in this direction.

[97] We agree that this direction is not ideal and, taken by itself, would have amounted to a misdirection. However, the Judge had earlier properly directed the jury that proof beyond reasonable doubt meant that the jury had to feel sure that the accused was guilty of the charge. In that case it would be their duty to find the accused guilty but if they were left with a reasonable doubt, then equally it was their duty to find the accused not guilty.
[98] In the context of this trial and the summing up as a whole, we do not consider there is a reasonable possibility that the jury could have misunderstood the onus of proof on the Crown in this second respect.

Conclusion

[99] No grounds are established for Mr Hill’s appeal and it is dismissed accordingly.
[100] Ms Turton has established that the absence of legal representation in her case is a breach of the right guaranteed by s 24 of the New Zealand Bill of Rights Act 1990 and that the breach led to a miscarriage of justice. She has also established that there was a material misdirection to the jury in relation to her responsibility as a party under ss 126(1)(f) and (g) of the Insolvency Act. That too means that her convictions cannot be safely sustained. Accordingly, her appeal is allowed and the convictions against her are quashed. Mr France for the Crown had no instructions with regard to any retrial. Accordingly, we direct a retrial in Ms Turton’s case. It will be a matter for the Crown to determine whether it will proceed.

Solicitors:
Crown Law Office, Wellington

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