Police v Rowe DC Masterton CRI-2010-035-1909 [2011] NZDC 620 (20 April 2011)

Last Updated: 28 September 2016

IN THE DISTRICT COURT AT MASTERTON

_{CRI-2010-035-001909}

NEW ZEALAND POLICE

Informant

v

STEPHEN CHRISTOPHER ROWE

Defendant

Hearing: 20 April 2011

Appearances: Sergeant G Peters for the Informant

J Blathwayt for the Defendant

Judgment: 20 April 2011

_{ORAL JUDGMENT OF JUDGE T J BROADMORE}

[1] Stephen Christopher Rowe is facing two charges relating to his alleged possession of a sawn-off double barrel shotgun. The charges arise respectively under the Arms Act and the Domestic Violence Act.

[2] The history of the charges is that they came before Judge Wainwright for a defended hearing, but near the conclusion of the hearing – for reasons which I will come to in a moment – the hearing had to be aborted. The police have sought to have the charges reheard. Mr Blathwayt, counsel for Mr Rowe, has applied for the charges to be dismissed on the grounds that it would be an abuse of process for there

_{to be a new trial in the circumstances.}

POLICE v ROWE DC MAS CRI-2010-035-001909 20 April 2011

[3] I know nothing of the evidence led by the police or by Mr Rowe at the hearing before Judge Wainwright, but I have been told what happened at the end of the evidence. At that stage Mr Rowe was under cross-examination by the police prosecutor, and an effort was made to cross-examine him about some prior event or circumstance which, all parties concerned agreed, involved propensity evidence. Mr Blathwayt objected to the attempt to lead this evidence, but in the small space of time following that, the police produced some document concerning the proposed evidence. Judge Wainwright saw that document and thereby was made aware of the nature of the evidence. She took the view that in those circumstances she could not continue to hear the case, and it was adjourned.

[4] At that stage the proposal was that the police would apply, as they should have done prior to (or at the commencement of) the hearing before Judge Wainwright, for permission to lead propensity evidence, so that the admissibility or otherwise of that evidence could be determined before the completion of the police evidence and the defendant would have known the entire content of the police case before embarking on his defence.

[5] In the event, however, the police have decided that they will not attempt to lead that evidence. Nevertheless, Mr Blathwayt now argues on Mr Rowe’s behalf that the prospect of a new trial, regardless of the issue of propensity evidence, would now amount to an abuse of process.

[6] I accept, on the basis of the authorities advanced by Mr Blathwayt, that this Court does have jurisdiction to stay proceedings on that ground. Indeed, it is frequently exercised in this Court; for example, when important prosecution witnesses do not turn up to the hearing and there seems little prospect that they will ever do so.

[7] Mr Blathwayt argues that there is an abuse of process such that a new trial should not be allowed to proceed for three broad reasons. The first is – to quote Mr Blathwayt’s submissions – it would be oppressive to require the defendant to go through a further defended hearing, he having endured the strain of virtually a whole defended hearing, including probably all of the anticipated cross-examination by the

prosecutor, and he should not be further subjected to the same pressures for a second time.

[8] Secondly, Mr Blathwayt points out that since the first hearing was aborted, the defendant has remained in custody for a period of some three months, and that is obviously prejudicial to him. Mr Blathwayt accepts, of course, that Mr Rowe is in custody awaiting a hearing on other charges as well, but he advises that he is to make an application for electronically monitored bail, which he would have made earlier had this matter not also been before the Court.

[9] Thirdly, Mr Blathwayt says that what went wrong in this case was a flagrant example of breach of the principle that the prosecution must present its case completely before the defendant is called upon, and in support of that argument he refers to Police v Grootjans [1989] 3 NZLR 587. That is because in this case the cross-examination was intended to adduce evidence of propensity through the defendant, when that evidence should properly have been part of the prosecution case. Mr Blathwayt maintains – and there appears to be no dispute about it – that the material handed to Judge Wainwright when the matter arose was, in fact, a pre-prepared application for leave to call the evidence, thus suggesting either that the prosecutor had omitted to deal with the issue earlier or that there was some attempt to ambush the defendant. Mr Blathwayt says that in either case, the approach of the prosecutor was completely improper.

[10] For their part, the police oppose the application. Sergeant Peters in his written submissions categorises what took place as simply a procedural error which could be rectified by a fresh hearing, as is often done when there have been procedural errors of that kind. He further points out, correctly, that just because there has been a procedural glitch and a mistake made, it is not automatic that a dismissal follows, particularly where – as in this case – the only consequence is that the trial has been delayed by three months.

[11] Sergeant Peters further refers to the principles applying to a stay of proceedings in order to prevent an abuse of process as expressed by Randerson J in Attorney General v District Court at Hamilton [2004] 3 NZLR 777, in which he

refers to the need to balance the right of the accused to a fair trial with the community’s interests in bringing to justice those alleged to be guilty of criminal offending, and points out that a stay of a criminal prosecution is a serious step which is only to be taken in a clear and compelling case.

[12] In this particular case everyone is, in a sense, right as to the considerations which bear upon the decision, because all the factors which I have specified as emerging from the police and counsel’s submissions are relevant and important.

[13] As to how I should exercise my discretion in this case, I consider that it does come down to a question of balancing the competing interests as Randerson J explained in the case to which I have just referred.

[14] It also occurs to me that there is quite a helpful analogy to be had from the considerations set out in s 30 of the Evidence Act as to whether or not improperly obtained evidence should be admitted. I refer in particular to s 30(2)(b), where there is reference to giving appropriate weight to the impropriety but also taking proper account of the need for an effective and credible system of justice, and to the references in ss (3) to the importance of any right breached by the impropriety, the nature of the impropriety, and the seriousness of the offence in particular.

[15] In this case the need for an effective and credible system of justice raises questions similar to that concerning the nature of the impropriety. Here, we have a flagrant error made by the police in conducting the case; and in using the word “flagrant” I am not being judgmental of the prosecutor but am expressing a view about the nature of the impropriety. It was, in my judgment, quite improper for the prosecutor to attempt to introduce evidence through the back door, in cross- examination of the defendant. Had that attempt succeeded, it would have upset the entire way in which – for generations, if not centuries – criminal cases have been conducted. That is, the entire prosecution case has to be on the table before the defendant is required to embark on his defence – an issue discussed in Police v Grootjans, to which I referred earlier.

[16] On the other hand, as was said in Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62, a stay is not a disciplinary process, and it is not to be exercised in order to express the Court’s disapproval of particular conduct.

[17] In further reference to s 30(3) of the Evidence Act, I want to comment on the issue of whether the impropriety was deliberate, reckless, or done in bad faith. There is no doubt in my mind but that it was done deliberately but done in good faith in order to repair a shortcoming which the prosecutor realised existed in the police case as earlier presented. So, it was a deliberate decision made by a possibly inexperienced prosecutor, but I do not consider that it was done recklessly or in bad faith.

[18] As to the nature and quality of the evidence, as I have said earlier, I know nothing of its content except that it raised issues of propensity, and I accept that it could well have turned the tide.

[19] As to the seriousness of the offence, both charges are punishable by a maximum of two years’ imprisonment. In cases under s 30, the Court of Appeal has adopted a rule of thumb that a serious charge is one carrying a sentence of four or more years’ imprisonment, but that is only a rule of thumb and is not decisive at all. This offence is not “serious” in that sense but nevertheless raises some serious issues of possession of a firearm without justification and in the context also of some domestic issues. The charge is one of possession only; there is no suggestion in the charge itself that there was any indication that the defendant was about to use the shotgun or that it was indeed loaded or in any other way readily available for use. It seems to me that the offence is at the lower rather than higher end of the scale of severity for offences of that kind. Whether or not it would justify a prison term would depend on contextual matters of which I am simply not aware, and also on Mr Rowe’s criminal history, of which, again, I am not aware. For that reason, the threat to the interests of justice and the maintenance of a credible system of justice is therefore somewhat attenuated.

[20] I have reached the conclusion, having done my best to weigh up the competing considerations to which I have referred, that the charges should be stayed.

I consider that there has been an appreciable prejudice to Mr Rowe in having these charges hanging over his head for some three months whilst he has been in custody. There is further prejudice to him in not having had the case determined by Judge Wainwright at the time it came on for hearing, when there must have been a prospect that the charges might be dismissed. I say that in part because the police obviously recognised the desirability of introducing that evidence if they could, and that seems to me to imply some recognition on their part that their case was not as strong as it might have been.

[21] As to the interests of the community and justice at large, I consider that a flagrant prosecutorial error of this kind, if excused on this occasion, does do some violence to the existence of an effective and credible system of justice, because it gives some kind of licence to the police to repair omissions in their case which, if allowed to proliferate, would affect the basic principles of criminal hearings to which I have earlier referred.

[22] I also consider that the gravity of the offending, so far as I have been able to determine it, is not at the level where the community would be affronted by a dismissal of the charges for this technical reason.

[23] Accepting as I do that this matter is finely balanced, I have come to the conclusion that my discretion should be exercised in favour of the defendant. The charges will be dismissed on the grounds that to continue with them would represent an abuse of process.

T J Broadmore

District Court Judge