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The Queen v Robinson [2006] NZCA 71 (28 April 2006)

Last Updated: 9 May 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/05

THE QUEEN

v

DANIEL JOHN ROBINSON

Hearing: 11 April 2006

Court: Glazebrook, Williams and Ronald Young JJ

Counsel: G Mason for Appellant
S C Holt for Crown

Judgment: 28 April 2006

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

[1] Mr Robinson was convicted, on 18 July 2005, of possession of ephedrine for the purpose of manufacturing methamphetamine. He was subsequently sentenced to 20 months imprisonment.
[2] Mr Robinson appeals against his conviction. The sole ground is that the trial occurred after an undue delay, contrary to s 25(b) of the New Zealand Bill of Rights Act 1990 (BORA).

Background

[3] The offending occurred on 21 November 2002 at Auckland International Airport. Mr Robinson, along with three others, returned from Bali on that day with substantial quantities of ephedrine. The four had between them in excess of 27,000 tablets, with Mr Robinson carrying 8,200 tablets. It appeared that Mr Robinson had, in early November, taken the place of Mr Rolls who was initially to travel to Bali. Mr Rolls was charged with the other four, but was subsequently discharged.
[4] Mr Robinson’s first trial commenced on 6 December 2004, just over two years after his arrest. Two of the accused were convicted at that trial but the jury was unable to agree on verdicts for Mr Robinson and Mr Dixon. They were both convicted at a retrial which began on 11 July 2005.
[5] Mr Robinson made an application for stay before the first trial. Judge Atkins QC, in a decision of 15 November 2004, declined that application. Judge Rea declined a second stay application before the retrial.
[6] We note that Mr Robinson was on bail throughout the proceedings, except for time spent in custody awaiting the jury verdicts.

Decision of Judge Atkins on the stay application

[7] The Judge accepted that there was a lengthy delay of 24 months and 12 days between Mr Robinson’s arrest and trial. In his view, the reasons for that delay were not difficult to find. He pointed out that the inherent time requirements of the case were considerable as there were initially five accused. After the discharge of Mr Rolls, there remained four accused. There were a number of Crown and defence applications, many of which required the consideration of a substantial body of evidence. The number of accused and counsel inevitably created some difficulties in co-ordinating fixtures for the pre-trial matters and there were a number of defence delays in notifying pre-trial issues. The original trial date of November was moved to December because of the unavailability of two defence counsel.
[8] Defence counsel had made a number of criticisms of Crown tactics. The first criticism was of the Crown’s decision to proceed against five accused instead of four. In the Judge’s view, this decision was justified, given the alleged connection (for which there was evidential foundation) with Mr Rolls. The next defence criticism was of the Crown’s decision to apply to move the trial from Auckland to Palmerston North because of the involvement of Mr Rolls. Again the Judge considered this to be justified and noted that, after the proceedings against Mr Rolls were ended, the defendants made an application to move the matter back to Auckland which contributed to further delay.
[9] The third area of criticism was of the action of the officer in charge of the case in writing to the Legal Services Agency questioning the eligibility for legal aid for the accused on the basis that they were either employed or working on their own account. The Judge considered that this intervention should not have been made but that the contribution to delay was not significant.
[10] The fourth major criticism was of the Crown’s decision to attempt to place before the jury evidence of Mr Rolls’ alleged activities. In Judge Atkins’ view, the issue raised by the Crown in this regard was properly raised and, although the decision went against the Crown, this was far from inevitable.
[11] The Judge noted that there had been no complaints by counsel for Mr Robinson as to delay until the trial was moved from 1 November 2004 to December 2004 because of the unavailability of the other defence counsel on the November date. By way of contrast, the Crown had, in a number of letters during the course of 2003, expressed concern over delays which the Crown claimed had been occasioned by the actions of the accused.
[12] The Judge also considered that the proceedings created demands in excess of those created by trials involving a single accused. However, for the most part, with respect to pre-trial work, the Court was able to deal with matters without significant contribution to delay. There was one exception to this and that was the delay between the pre-trial hearing on 23 April 2004 presided over by Judge Behrens QC and the trial date, first in November and then in December. This was at least in part a consequence of pressure of fixtures. However, it was noted that, following the setting of the November date, further pre-trial rulings were required.
[13] With respect to prejudice to the accused, the argument had centred first on the possibility of memory fallibility on the part of Crown witnesses as to facts favourable to the accused. The Judge accepted the Crown submission that this was not significant given that the Crown witnesses were in the main police officers who would be assisted by their notes. The other limb to the argument was that of a claimed hardening in public attitudes towards methamphetamine. The Judge said that such shifts in public attitudes towards offences do occur and are customarily dealt with by way of directions from the trial Judge.
[14] Other arguments as to prejudice related to the effect of the accused arising from restrictive bail conditions, extreme anxiety, concern for the future and the loss of jobs. The Judge recognised that persons facing criminal charges experience anxieties of the kind referred to. While these disadvantages were prolonged in this case, they were, in his view, the standard consequences of the bringing of criminal charges.
[15] In summary, the Judge held that the Crown had properly and in good faith endeavoured to ensure the placement of all available evidence before the prospective jury. The defence had equally properly sought to restrict this. During the course of this process both the Crown and the defence had contributed to delay. In the Judge’s view, although the delay was considerable, when assessed against the number of accused and the complexity of some of the issues raised, the delay was not undue. The Judge concluded that the proceedings should not be stayed.

Decision of Judge Rea on the second stay application

[16] Before the retrial, Mr Robinson renewed his stay application. This was heard by Judge Rea who accepted that the entire period from arrest to the retrial must be taken into account. Judge Atkins had examined what had occurred up to the time of the first trial.
[17] As to the further delay, before the retrial Judge Rea considered that the reality was that, in a busy District Court with a high turnover of serious criminal matters, each case must take its turn. He said that the case may have been able to have been heard earlier than July from the Court’s point of view, but that was the date allocated and no application had been made to move the case to an earlier date.
[18] Mr Robinson had pointed to the sheer pressure on him, particularly after having sat through and endured one trial. The Judge said that this was an unfortunate corollary of the criminal justice system but that it can never be a reason for staying a case. Mr Robinson had also again raised the fact that the memory of some of the witnesses was not as good as it was at depositions or at the time of the event. The fragility of memory was not unique to this case in the Judge’s view. It was a central feature of many of the cases that came before juries in courts up and down the country on a daily basis.
[19] The Judge concluded by saying that, while the length of time from arrest until the second trial was unfortunate, there was no undue delay, given how the case had developed, how it was heard on the first occasion and the various applications that had been made and determined by the Court. A fair trial was still possible and the application for stay was declined.

Mr Robinson’s submissions

[20] Mr Mason, for Mr Robinson, conceded that, while there were issues about the memory of witnesses arising from the delay, such issues as there were would in fact have existed in the same manner after three months as after three years. Thus he accepted that Mr Robinson could not point to any specific prejudice that affected the fairness of his trial and retrial.
[21] Mr Mason submitted, however, that the right to a trial without undue delay is an individual’s right. In this case the delay was very lengthy and clearly undue. Mr Mason accepted that a complex case will take longer to get to trial than a simple one and that this trial was complex in that it was a multi-accused trial that was to last a week or more. In Mr Mason’s submission, the fact that, as a matter of practice and convenience, his trial took place with three other accused whose charges arose in similar circumstance should not weigh heavily in assessing whether the delay was undue.
[22] In addition, Mr Mason submitted that the Crown contributed to the delay by the officer in charge interfering with Mr Robinson’s legal aid, the decision to try the accused with Mr Rolls with the consequential application to have the trial transferred to Palmerston North and the application to call the evidence related to Mr Rolls. Although he accepted that (apart from the question of legal aid) there was nothing improper in the Crown’s actions, they nevertheless caused the delay. The attempt to introduce Mr Rolls’ evidence should not, in his submission, have been proceeded with, given the extra delay entailed.
[23] As to remedy, it was submitted that the consideration of remedy should start with the necessity to affirm the right. Comparisons with the abuse of process cases was thus not apt. In Mr Mason’s submission, the approach in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 should also be rejected. Rather, a balancing exercise should be undertaken in the manner set out in R v Shaheed [2002] 2 NZLR 377 at [156]. Mr Mason submitted that the seriousness of the charges faced by the individual must be a factor in that balancing exercise. He referred to the comments of Blanchard J in R v Harmer CA324/02 26 June 2003 at [135]:

The freeing of a man found guilty of a most serious offence would have been an entirely disproportionate response to delay which was not causative of prejudice.

[24] Mr Mason submitted that Mr Robinson’s offending was not in the most serious category. The offence he was charged with carried a maximum penalty of five years imprisonment and he was sentenced to 20 months imprisonment with leave to apply for home detention which was subsequently granted.
[25] In Mr Mason’s submission, as Mr Robinson had served all but a small portion of the custodial component of his sentence, a lesser remedy than quashing his conviction would be neither just nor proportionate. It was further submitted that quashing Mr Robinson’s conviction in these circumstances would not damage the credibility or effectiveness of the justice system.

Crown submissions

[26] The Crown submitted that the delays before the first trial were caused, in the main, by ongoing and multiple pre-trial applications, multiple changes of counsel and the inherent requirements of a multi accused trial occupying more than a week in a provincial centre. Further, as Mr Robinson was properly tried with the other accused, the Crown submitted that any delay caused by defence applications has to be discounted as s 25(b) of BORA is directed to State conduct.
[27] As to the officer in charge writing to the Legal Services Agency, the Crown submitted that the officer’s actions were understandable and not of a character giving rise to concerns about misconduct. In any event, at worst, that contributed only seven weeks to the delay.
[28] In the Crown’s submission, the delay before the second trial was similarly caused by pre-trial applications and inherent time requirements and therefore not undue.
[29] The Crown submitted that this was not a situation where the trial or retrial languished awaiting a fixture or where the Crown caused delays improperly. Progress was made with a steady stream of rulings issued by the District Court. Further, the delay caused Mr Robinson no prejudice and he accepted that he had two fair trials. The Crown thus submitted that the delays in this case, while long, were not undue.
[30] The Crown’s next submission was that the exercise undertaken by Judges Atkins and Rea in holding that there had been no undue delay was a discretionary exercise and accordingly should not be interfered with on appeal unless it involved an error of legal principle, took into account irrelevant considerations, failed to take into account relevant considerations or was plainly wrong. The balancing exercise in this case took place against a complex procedural background with which Judge Atkins, in particular, was extremely familiar.
[31] The Crown submitted further that, even if there had been undue delay, quashing the conviction would be a disproportionate and inappropriate remedy. In the Crown’s submission, this Court should prefer and adopt the approach taken by the House of Lords in Attorney-General’s Reference (No 2 of 2001) which was followed by Winkelmann J in Du v The District Court at Auckland HC AK CIV-2005-404-355 23 November 2005. Under that approach, a stay is not an appropriate remedy for a breach of s 25(b) of BORA unless a fair trial is not possible, or for some other reason (such as prosecutorial misconduct occasioning delay) it would be unfair to put an accused on trial.
[32] In the Crown’s submission, that approach is preferable because it avoids judges straining to avoid describing delay as undue in order to avoid the extreme remedy of a stay of proceedings, it properly recognises and reflects the values that underpin the right, and it ensures doctrinal consistency with the jurisdiction to stay proceedings for an abuse of process – see Fox v Attorney-General [2002] 3 NZLR 62.
[33] The Crown submitted that Mr Mason’s suggestion of a balancing approach based on Shaheed should be rejected. The Crown pointed out that the only authority Mr Robinson draws upon is the comment of Blanchard J in Harmer. That comment, which was directed to the particular case before Blanchard J, should not, in the Crown’s submission, be elevated to the expression of a test for the appropriate remedy based on the seriousness of the offence. In any event, the Crown also disputed the suggestion that this offence was not serious. The ephedrine brought into New Zealand by these four men was capable of making up to $375,000 - $525,000 worth of pure methamphetamine. The evil caused by that drug is well known as is the important role played by those who supply the ingredients for its manufacture.

Analysis of delay

[34] Judge Atkins in his ruling set out a detailed chronology. Mr Robinson takes no substantive issue with that chronology and it has been updated by the Crown to deal with what occurred after the first trial and the retrial. The chronology covers seven and a half pages with just over eighty date entries. We set out the key events below.

From arrest until depositions

[35] The delay between first call and depositions was approximately eight and half months. During that time depositions were adjourned twice (on 17 June 2003 and 23 July 2003) on defence applications, which were opposed by the Crown. There was also some delay caused by the officer in charge of the case writing to the Legal Services Agency providing information about his knowledge of the income and assets of the accused that he apprehended might not have been disclosed in their applications for legal aid.

From depositions until first trial

[36] Two days after the depositions hearing (on 11 August 2003) the Crown made an application for a change of venue to Palmerston North and filed submissions in support of that application. The defence submissions were filed on 14 October 2003 and, as a result, the application was not granted until 13 November 2003.
[37] A trial date of 3 May 2004 was set at callover on 12 December 2004. On 23 April 2004 it was abandoned, with the consent of the accused, once it became clear that the pre-trial process would not be completed in time. A new trial date of 1 November 2004 was set, but that trial date was changed to 6 December because counsel for two of the accused had conflicting trials.
[38] Various timetable orders, made in late 2003 and early 2004, for notifying objections to evidence were not complied with by the defence. Finally the Crown’s s 344A application (with 81 objections notified) was filed on 30 April 2004. It was heard from 3 – 5 May 2004. The hearing included the Crown’s application to introduce the evidence relating to Mr Rolls who had been discharged on 26 March 2004. The reasons for Mr Rolls’ discharge, which were needed before the s 344A application was argued, were not available until 23 April 2004. Judge Atkins’ decision on the admissibility of the Rolls’ evidence was released on 30 June 2004. Various other rulings were released in early July.
[39] A defence application to change the venue of the trial back to Manukau was made as a result of Mr Rolls’ discharge. It was declined on 23 April 2004. We note that any trial in Manukau would not have been able to have been heard until 2005.
[40] A further s 344A application was filed on 24 August 2004 at the request of counsel for Mr Robinson. It was heard on 20 September 2004 and, on that date, was adjourned for further submissions to be filed.

From first trial to second trial

[41] After the first trial, the two remaining accused were remanded to callover on 4 February 2004. At that hearing, counsel for Mr Robinson indicated that he would be filing renewed applications for a stay of proceedings and change of venue and was likely to require (he in fact did require) the Crown to file a further s 344A application. The matter was therefore remanded to a callover on 21 March 2005 to enable pre-trial applications to be filed and timetabled and a trial date set.
[42] The Crown proposed that the retrial be allocated a reserve fixture for 6 May 2005. Mr Robinson’s counsel opposed that suggestion because of a lengthy fixture of his that would finish only the week before. Accordingly the trial date of 11 July 2005 was set.

Discussion

[43] In this case, as the analysis of the delay shows, the time before both the trial and the retrial was effectively taken up by a number of legitimate pre-trial applications. It is accepted by Mr Mason that it was appropriate for the accused to be tried together and that there was nothing improper in the Crown’s application for a change in venue. It was also accepted that there was nothing improper in the Crown’s s 344A application of 30 April 2004, including insofar as it related to the evidence relating to Mr Rolls. All pre-trial applications were dealt with in a timely fashion by the Court and the trial dates were set to take into account the time necessary to complete the pre-trial processes.
[44] Mr Mason did challenge the propriety of the actions of the officer in charge relating to legal aid but we accept the Crown’s submission that the officer’s actions were not improper and that, in any event, they did not contribute significantly to the delay.
[45] We accept the Crown submission that, where it is proper for the accused to be tried together, legitimate challenges by other accused to the evidence and proper applications made by the Crown cannot be seen as contributing to undue delay. The inherent complexities of a trial must also be considered in assessing whether delay is undue. In this case the trial was a multi-accused trial lasting over a week which necessarily increased the complexity and led to inevitable difficulties in co-ordinating hearing dates. Mr Mason accepted that there was no specific prejudice to Mr Robinson from the delay and that both the trial and the retrial were fair.
[46] Taking all those features into account, we do not consider that the delay was undue. The decisions of Judges Atkins and Rea in denying a stay were thus clearly correct. As we have held that the delay was not undue, we make no comment on the question of remedy.

Result

[47] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	Mr Robinson was convicted, on 18 July 2005, of possession of ephedrine for the purpose of manufacturing methamphetamine. He was subsequently sentenced to 20 months imprisonment.
[2]	Mr Robinson appeals against his conviction. The sole ground is that the trial occurred after an undue delay, contrary to s 25(b) of the New Zealand Bill of Rights Act 1990 (BORA).

[3]	The offending occurred on 21 November 2002 at Auckland International Airport. Mr Robinson, along with three others, returned from Bali on that day with substantial quantities of ephedrine. The four had between them in excess of 27,000 tablets, with Mr Robinson carrying 8,200 tablets. It appeared that Mr Robinson had, in early November, taken the place of Mr Rolls who was initially to travel to Bali. Mr Rolls was charged with the other four, but was subsequently discharged.
[4]	Mr Robinson’s first trial commenced on 6 December 2004, just over two years after his arrest. Two of the accused were convicted at that trial but the jury was unable to agree on verdicts for Mr Robinson and Mr Dixon. They were both convicted at a retrial which began on 11 July 2005.
[5]	Mr Robinson made an application for stay before the first trial. Judge Atkins QC, in a decision of 15 November 2004, declined that application. Judge Rea declined a second stay application before the retrial.
[6]	We note that Mr Robinson was on bail throughout the proceedings, except for time spent in custody awaiting the jury verdicts.

[7]	The Judge accepted that there was a lengthy delay of 24 months and 12 days between Mr Robinson’s arrest and trial. In his view, the reasons for that delay were not difficult to find. He pointed out that the inherent time requirements of the case were considerable as there were initially five accused. After the discharge of Mr Rolls, there remained four accused. There were a number of Crown and defence applications, many of which required the consideration of a substantial body of evidence. The number of accused and counsel inevitably created some difficulties in co-ordinating fixtures for the pre-trial matters and there were a number of defence delays in notifying pre-trial issues. The original trial date of November was moved to December because of the unavailability of two defence counsel.
[8]	Defence counsel had made a number of criticisms of Crown tactics. The first criticism was of the Crown’s decision to proceed against five accused instead of four. In the Judge’s view, this decision was justified, given the alleged connection (for which there was evidential foundation) with Mr Rolls. The next defence criticism was of the Crown’s decision to apply to move the trial from Auckland to Palmerston North because of the involvement of Mr Rolls. Again the Judge considered this to be justified and noted that, after the proceedings against Mr Rolls were ended, the defendants made an application to move the matter back to Auckland which contributed to further delay.
[9]	The third area of criticism was of the action of the officer in charge of the case in writing to the Legal Services Agency questioning the eligibility for legal aid for the accused on the basis that they were either employed or working on their own account. The Judge considered that this intervention should not have been made but that the contribution to delay was not significant.
[10]	The fourth major criticism was of the Crown’s decision to attempt to place before the jury evidence of Mr Rolls’ alleged activities. In Judge Atkins’ view, the issue raised by the Crown in this regard was properly raised and, although the decision went against the Crown, this was far from inevitable.
[11]	The Judge noted that there had been no complaints by counsel for Mr Robinson as to delay until the trial was moved from 1 November 2004 to December 2004 because of the unavailability of the other defence counsel on the November date. By way of contrast, the Crown had, in a number of letters during the course of 2003, expressed concern over delays which the Crown claimed had been occasioned by the actions of the accused.
[12]	The Judge also considered that the proceedings created demands in excess of those created by trials involving a single accused. However, for the most part, with respect to pre-trial work, the Court was able to deal with matters without significant contribution to delay. There was one exception to this and that was the delay between the pre-trial hearing on 23 April 2004 presided over by Judge Behrens QC and the trial date, first in November and then in December. This was at least in part a consequence of pressure of fixtures. However, it was noted that, following the setting of the November date, further pre-trial rulings were required.
[13]	With respect to prejudice to the accused, the argument had centred first on the possibility of memory fallibility on the part of Crown witnesses as to facts favourable to the accused. The Judge accepted the Crown submission that this was not significant given that the Crown witnesses were in the main police officers who would be assisted by their notes. The other limb to the argument was that of a claimed hardening in public attitudes towards methamphetamine. The Judge said that such shifts in public attitudes towards offences do occur and are customarily dealt with by way of directions from the trial Judge.
[14]	Other arguments as to prejudice related to the effect of the accused arising from restrictive bail conditions, extreme anxiety, concern for the future and the loss of jobs. The Judge recognised that persons facing criminal charges experience anxieties of the kind referred to. While these disadvantages were prolonged in this case, they were, in his view, the standard consequences of the bringing of criminal charges.
[15]	In summary, the Judge held that the Crown had properly and in good faith endeavoured to ensure the placement of all available evidence before the prospective jury. The defence had equally properly sought to restrict this. During the course of this process both the Crown and the defence had contributed to delay. In the Judge’s view, although the delay was considerable, when assessed against the number of accused and the complexity of some of the issues raised, the delay was not undue. The Judge concluded that the proceedings should not be stayed.

[16]	Before the retrial, Mr Robinson renewed his stay application. This was heard by Judge Rea who accepted that the entire period from arrest to the retrial must be taken into account. Judge Atkins had examined what had occurred up to the time of the first trial.
[17]	As to the further delay, before the retrial Judge Rea considered that the reality was that, in a busy District Court with a high turnover of serious criminal matters, each case must take its turn. He said that the case may have been able to have been heard earlier than July from the Court’s point of view, but that was the date allocated and no application had been made to move the case to an earlier date.
[18]	Mr Robinson had pointed to the sheer pressure on him, particularly after having sat through and endured one trial. The Judge said that this was an unfortunate corollary of the criminal justice system but that it can never be a reason for staying a case. Mr Robinson had also again raised the fact that the memory of some of the witnesses was not as good as it was at depositions or at the time of the event. The fragility of memory was not unique to this case in the Judge’s view. It was a central feature of many of the cases that came before juries in courts up and down the country on a daily basis.
[19]	The Judge concluded by saying that, while the length of time from arrest until the second trial was unfortunate, there was no undue delay, given how the case had developed, how it was heard on the first occasion and the various applications that had been made and determined by the Court. A fair trial was still possible and the application for stay was declined.

[20]	Mr Mason, for Mr Robinson, conceded that, while there were issues about the memory of witnesses arising from the delay, such issues as there were would in fact have existed in the same manner after three months as after three years. Thus he accepted that Mr Robinson could not point to any specific prejudice that affected the fairness of his trial and retrial.
[21]	Mr Mason submitted, however, that the right to a trial without undue delay is an individual’s right. In this case the delay was very lengthy and clearly undue. Mr Mason accepted that a complex case will take longer to get to trial than a simple one and that this trial was complex in that it was a multi-accused trial that was to last a week or more. In Mr Mason’s submission, the fact that, as a matter of practice and convenience, his trial took place with three other accused whose charges arose in similar circumstance should not weigh heavily in assessing whether the delay was undue.
[22]	In addition, Mr Mason submitted that the Crown contributed to the delay by the officer in charge interfering with Mr Robinson’s legal aid, the decision to try the accused with Mr Rolls with the consequential application to have the trial transferred to Palmerston North and the application to call the evidence related to Mr Rolls. Although he accepted that (apart from the question of legal aid) there was nothing improper in the Crown’s actions, they nevertheless caused the delay. The attempt to introduce Mr Rolls’ evidence should not, in his submission, have been proceeded with, given the extra delay entailed.
[23]	As to remedy, it was submitted that the consideration of remedy should start with the necessity to affirm the right. Comparisons with the abuse of process cases was thus not apt. In Mr Mason’s submission, the approach in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 should also be rejected. Rather, a balancing exercise should be undertaken in the manner set out in R v Shaheed [2002] 2 NZLR 377 at [156]. Mr Mason submitted that the seriousness of the charges faced by the individual must be a factor in that balancing exercise. He referred to the comments of Blanchard J in R v Harmer CA324/02 26 June 2003 at [135]:

[24]	Mr Mason submitted that Mr Robinson’s offending was not in the most serious category. The offence he was charged with carried a maximum penalty of five years imprisonment and he was sentenced to 20 months imprisonment with leave to apply for home detention which was subsequently granted.
[25]	In Mr Mason’s submission, as Mr Robinson had served all but a small portion of the custodial component of his sentence, a lesser remedy than quashing his conviction would be neither just nor proportionate. It was further submitted that quashing Mr Robinson’s conviction in these circumstances would not damage the credibility or effectiveness of the justice system.

[26]	The Crown submitted that the delays before the first trial were caused, in the main, by ongoing and multiple pre-trial applications, multiple changes of counsel and the inherent requirements of a multi accused trial occupying more than a week in a provincial centre. Further, as Mr Robinson was properly tried with the other accused, the Crown submitted that any delay caused by defence applications has to be discounted as s 25(b) of BORA is directed to State conduct.
[27]	As to the officer in charge writing to the Legal Services Agency, the Crown submitted that the officer’s actions were understandable and not of a character giving rise to concerns about misconduct. In any event, at worst, that contributed only seven weeks to the delay.
[28]	In the Crown’s submission, the delay before the second trial was similarly caused by pre-trial applications and inherent time requirements and therefore not undue.
[29]	The Crown submitted that this was not a situation where the trial or retrial languished awaiting a fixture or where the Crown caused delays improperly. Progress was made with a steady stream of rulings issued by the District Court. Further, the delay caused Mr Robinson no prejudice and he accepted that he had two fair trials. The Crown thus submitted that the delays in this case, while long, were not undue.
[30]	The Crown’s next submission was that the exercise undertaken by Judges Atkins and Rea in holding that there had been no undue delay was a discretionary exercise and accordingly should not be interfered with on appeal unless it involved an error of legal principle, took into account irrelevant considerations, failed to take into account relevant considerations or was plainly wrong. The balancing exercise in this case took place against a complex procedural background with which Judge Atkins, in particular, was extremely familiar.
[31]	The Crown submitted further that, even if there had been undue delay, quashing the conviction would be a disproportionate and inappropriate remedy. In the Crown’s submission, this Court should prefer and adopt the approach taken by the House of Lords in Attorney-General’s Reference (No 2 of 2001) which was followed by Winkelmann J in Du v The District Court at Auckland HC AK CIV-2005-404-355 23 November 2005. Under that approach, a stay is not an appropriate remedy for a breach of s 25(b) of BORA unless a fair trial is not possible, or for some other reason (such as prosecutorial misconduct occasioning delay) it would be unfair to put an accused on trial.
[32]	In the Crown’s submission, that approach is preferable because it avoids judges straining to avoid describing delay as undue in order to avoid the extreme remedy of a stay of proceedings, it properly recognises and reflects the values that underpin the right, and it ensures doctrinal consistency with the jurisdiction to stay proceedings for an abuse of process – see Fox v Attorney-General [2002] 3 NZLR 62.
[33]	The Crown submitted that Mr Mason’s suggestion of a balancing approach based on Shaheed should be rejected. The Crown pointed out that the only authority Mr Robinson draws upon is the comment of Blanchard J in Harmer. That comment, which was directed to the particular case before Blanchard J, should not, in the Crown’s submission, be elevated to the expression of a test for the appropriate remedy based on the seriousness of the offence. In any event, the Crown also disputed the suggestion that this offence was not serious. The ephedrine brought into New Zealand by these four men was capable of making up to $375,000 - $525,000 worth of pure methamphetamine. The evil caused by that drug is well known as is the important role played by those who supply the ingredients for its manufacture.

[36]	Two days after the depositions hearing (on 11 August 2003) the Crown made an application for a change of venue to Palmerston North and filed submissions in support of that application. The defence submissions were filed on 14 October 2003 and, as a result, the application was not granted until 13 November 2003.
[37]	A trial date of 3 May 2004 was set at callover on 12 December 2004. On 23 April 2004 it was abandoned, with the consent of the accused, once it became clear that the pre-trial process would not be completed in time. A new trial date of 1 November 2004 was set, but that trial date was changed to 6 December because counsel for two of the accused had conflicting trials.
[38]	Various timetable orders, made in late 2003 and early 2004, for notifying objections to evidence were not complied with by the defence. Finally the Crown’s s 344A application (with 81 objections notified) was filed on 30 April 2004. It was heard from 3 – 5 May 2004. The hearing included the Crown’s application to introduce the evidence relating to Mr Rolls who had been discharged on 26 March 2004. The reasons for Mr Rolls’ discharge, which were needed before the s 344A application was argued, were not available until 23 April 2004. Judge Atkins’ decision on the admissibility of the Rolls’ evidence was released on 30 June 2004. Various other rulings were released in early July.
[39]	A defence application to change the venue of the trial back to Manukau was made as a result of Mr Rolls’ discharge. It was declined on 23 April 2004. We note that any trial in Manukau would not have been able to have been heard until 2005.
[40]	A further s 344A application was filed on 24 August 2004 at the request of counsel for Mr Robinson. It was heard on 20 September 2004 and, on that date, was adjourned for further submissions to be filed.

[43]	In this case, as the analysis of the delay shows, the time before both the trial and the retrial was effectively taken up by a number of legitimate pre-trial applications. It is accepted by Mr Mason that it was appropriate for the accused to be tried together and that there was nothing improper in the Crown’s application for a change in venue. It was also accepted that there was nothing improper in the Crown’s s 344A application of 30 April 2004, including insofar as it related to the evidence relating to Mr Rolls. All pre-trial applications were dealt with in a timely fashion by the Court and the trial dates were set to take into account the time necessary to complete the pre-trial processes.
[44]	Mr Mason did challenge the propriety of the actions of the officer in charge relating to legal aid but we accept the Crown’s submission that the officer’s actions were not improper and that, in any event, they did not contribute significantly to the delay.
[45]	We accept the Crown submission that, where it is proper for the accused to be tried together, legitimate challenges by other accused to the evidence and proper applications made by the Crown cannot be seen as contributing to undue delay. The inherent complexities of a trial must also be considered in assessing whether delay is undue. In this case the trial was a multi-accused trial lasting over a week which necessarily increased the complexity and led to inevitable difficulties in co-ordinating hearing dates. Mr Mason accepted that there was no specific prejudice to Mr Robinson from the delay and that both the trial and the retrial were fair.
[46]	Taking all those features into account, we do not consider that the delay was undue. The decisions of Judges Atkins and Rea in denying a stay were thus clearly correct. As we have held that the delay was not undue, we make no comment on the question of remedy.