The Queen v Rolleston [2007] NZCA 165 (30 April 2007)

Last Updated: 22 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA19/07
[2007] NZCA 165

THE QUEEN



v



SHONA WINIPERA ROLLESTON

Hearing: 18 April 2007

Court: Glazebrook, Randerson and Ronald Young JJ

Counsel: A M Simperingham for Appellant
K Raftery for Crown

Judgment: 30 April 2007 at 3pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1]	On 22 May 2006, Ms Rolleston was charged with cultivation of cannabis. The charges arose as a result of a search that had taken place on 18 January 2006. Ms Rolleston was committed for trial on 28 September 2006. The indictment was therefore due to be filed by 9 November 2006.
[2]	Due to an administrative oversight, the Crown failed to file the indictment by that date. This was discovered on 28 November 2006, the date on which Ms Rolleston was due to appear in Court for callover. The indictment, an application to amend the indictment and an application for an extension of time for filing the indictment were all filed on that date.
[3]	Ms Rolleston contested the Crown’s application for an extension of time and applied to be discharged. On 19 December 2006, in the District Court at Gisborne, Judge Gittos granted the Crown’s application for an extension of time to file the indictment. Ms Rolleston applies for leave to appeal against that decision.

The legislation

[4]	Section 345A(1) of the Crimes Act 1961 provides that, unless an extension is obtained under s 345B, an indictment must be filed not later than 42 days after the accused is committed for trial.
[5]	Under s 345B, a broad discretion is given to the trial Judge to extend the 42 day period if it is in the interest of justice to do so. Section 345B(2) lists five factors that Judges may have regard to when considering applications but these factors do not limit the generality of the discretion.
[6]	In addition, s 346(1) provides that failure by the prosecution to file an indictment within the prescribed period may result in a direction that the accused be discharged. Thus, even where the 42 day time period (or any extension) is not complied with, a Judge is under no obligation to discharge the accused.

Grounds of appeal

[7]

On Ms Rolleston’s behalf, Mr Simperingham relied on the same arguments as were made unsuccessfully by the accused in R v B [1999] DCR 235. He submitted that that case was wrongly decided. He submitted further that it was important to take into account the right to trial without undue delay, affirmed in s 25(b) of the New Zealand Bill of Rights Act 1990 (BORA). Finally, he submitted that discharging Ms Rolleston would serve the best interests of justice, given that her alleged offending was not of the most serious kind and was effectively a victimless crime.

[8]

Mr Simperingham conceded that the starting point for offending of this nature would be a sentence of between three to four years imprisonment. He also conceded that there was no prejudice to Ms Rolleston in the late filing of the indictment.

Should Ms Rolleston have been discharged?

[9]	The contention that R v B was wrongly decided is unsustainable. Judge Abbott in that case correctly considered that the discretionary nature of the Judge’s power under s 345B(1) of the Crimes Act; the seriousness of the offence with which the accused were charged; the reason for the indictment being filed late; the public interest in ensuring that allegations of serious criminal offending are properly tried and determined; and the lack of prejudice to the accused resulting from the delay in the indictment being filed, were all relevant factors.
[10]	As to Mr Simperingham’s second argument, we do not consider that s 25(b) of BORA is engaged. Section 345B of the Crimes Act is essentially a case management provision – see the remarks of this Court in R v Moody CA318/06 4 December 2006 at [19]. As this Court said in R v Palmer (1996) 2 HRNZ 458 at 462, it is important that breaches of s 25(b) of BORA are not equated with the failure to meet target deadlines in the management of criminal proceedings. In any event, as stated in Moody at [18], the primary focus of s 345B is on the period between the date on which the indictment should have been filed and the date of the application to extend time. That period was 19 days. That could not possibly amount to undue delay in terms of s 25(b) of BORA. Indeed, the late filing had absolutely no effect on the timing of the trial.
[11]	Turning to Mr Simperingham’s third argument, it is clear from the structure of ss 345B and 346 of the Crimes Act that there is a wide discretion given to Judges in deciding whether to grant the prosecution an extension of time for filing an indictment and on whether or not to discharge the accused if the deadline is not met. Anyone appealing against the exercise of a discretion must show that the Judge acted on a wrong principle, that wrong considerations have been taken into account, that relevant considerations have not been taken into account or the decision is plainly wrong. That threshold has not been reached.
[12]	We accept the Crown submission that the absence of concrete restrictions on judges and the corresponding generous discretion given to them when deciding whether to grant an extension or to discharge an accused, militates strongly against discharging the accused in the absence of some specific prejudice arising from the extension sought and/or some Crown misconduct which led to it being sought. Mere administrative oversight does not equate to Crown misconduct and there is no prejudice alleged in this case.
[13]	We also accept the Crown submission that the prejudice and/or misconduct involved must outweigh the public interest in prosecuting the alleged offending. Parliament clearly envisaged a balancing exercise to be undertaken in these cases and did not intend to provide a purely technical ground for acquittal. We accept that the level of seriousness of the offending is a matter that can be taken into account in any such balancing exercise and that the more serious the offending, the more likely it is that the public interest in prosecution would outweigh any prejudice and/or misconduct. In this case, however, there was no prejudice or misconduct.
[14]	In any event, we do not accept the submission that the offending in this case was not serious, given that it risked, if proved, a starting point of imprisonment of between three to four years. We also do not accept the submission that drug offences are victimless crimes – see the remarks in R v Williams [2007] NZCA 52 on this issue at [135].

Result

[15]	Leave to appeal is granted but the appeal is dismissed.

Solicitors:
Woodward Chrisp, Gisborne for Appellant
Meredith Connell, Auckland
Crown Law Office, Wellington