Police v Fruean DC Auckland [2013] NZDC 1510 (19 August 2013)

Last Updated: 25 December 2016

IN THE DISTRICT COURT AT AUCKLAND

NEW ZEALAND POLICE

Informant

v

FRUEAN, WARU & Ors

Defendants

Date: 19 August 2013

MEMORANDUM OF JUDGE A E KIERNAN RE: FILING OF CHARGING DOCUMENTS IN THE DISTRICT COURT AT AUCKLAND

[1] On 1 June 2013 there was a riot at Springhill Prison. The Police intend to file charging documents against 23 defendants for alleged offending at the prison on that date.

[2] 22 of the 23 intended defendants are now housed at Auckland Prison at Paremoremo, Albany on the North Shore. The nearest court to Springhill Prison is the Hamilton District Court. The nearest court to Auckland Prison at Paremoremo is the North Shore District Court.

[3] The Police intend to file charging documents at the Auckland District Court,

and seek the Court’s endorsement of that course.

[4] The Registrar has referred to me for consideration in chambers a memorandum filed by Edward Carr of the Police Prosecutions Service in Hamilton.

[5] Section 14 Criminal Procedure Act 2011 provides that a charging document be filed in the District Court nearest to where the offence is alleged to have been committed, or nearest to where the person filing the charging document believes the defendant can be found. Despite this position, if all parties to the proposed proceeding agree, the charging document may be filed in another District Court. Failure to file a charging document in the correct District Court in accordance with that section does not invalidate any proceeding.

[6] In this case the Police submit that the nearest court for the purposes of s 14

CPA needs to be approached in a common sense way, having regard to all relevant circumstances. In a practical sense the Police submit that the nearest court is the Auckland District Court. The following factors are highlighted:

(a) The majority of the defendants reside in the Auckland region.

(b) The majority of the defendants are now maximum security prisoners. (c) The facilities at the Auckland District Court are superior to the North

Shore District Court or the Hamilton District Court. The Auckland Court is best equipped to handle a large number of maximum security prisoners (for example, it has large courtrooms available).

(d) It can logically be expected that the majority of defendants will choose Auckland-based lawyers to represent them.

(e) There will probably be a saving of costs since the following costs will be reduced:

(i) Legal Aid costs. (If the matter was in Hamilton, legal aid costs would have to extend to deploying Hamilton lawyers to visit Paremoremo Prison to take instructions).

(ii) Corrections Department costs of transporting and securing 22 maximum security prisoners. (If the matter was in Hamilton prisoners would have to be transported from Paremoremo Prison to Hamilton regularly since Court for an extended 4 to

5 month trial period). In this regard, Police have been advised that Waikeria Prison is unable to accommodate a large number of maximum security prisoners. In addition, for travelling, for each prisoner, three corrections officers are required.

(f) The witnesses in this matter are spread around the country and the task of transporting them to Auckland will not cause a significant increase in cost or inconvenience.

(g) Auckland District Court is not a significant distance from the location of the alleged offending (Springhill Prison); nor from where the majority of the defendants can be found (Albany).

[7] There are as yet no decisions on this point under the Criminal Procedure Act. The predecessor to s 14 was s 18 Summary Proceedings Act 1957 and was in substantially the same form.

[8] As noted by Police, in Nicholls v Masterton District Court [1996] 2 NZLR

156, “nearest” was to be considered in a common sense fashion and the statutory focus is on the court nearest for the range of people who could be expected to attend the trial.

[9] In Warren v Police [1995] 3 NZLR 411, as submitted by Police, Fisher J considered that if all else was equal justice should be seen to be done in the community where an incident had occurred. However, His Honour also stated it was a matter in the end of weighing all the relevant considerations in order to arrive at a venue which will best serve the ends of justice.

[10] Section 157 Criminal Procedure Act does provide for transfer of proceedings if a court is satisfied that it is in the interests of justice that the proceeding be heard at another place. Section 322 Crimes Act 1961 was the previous statutory provision.

[11] The principles were examined in McNaughton v R [2012] NZCA 16. The

Court stated at para [6]:

Initial venue for trial

(a) An accused is to be tried in the Court nearest to the place where the crime was committed unless the venue is changed. Although that has been stated as a presumption, it is perhaps more accurately viewed as the initial factual position. That is because the law requires the Crown to lay the charge in the Court closest to the place where the Crown alleges the crime was committed: s 18 of the Summary Proceedings Act 1957, and s 14 of the Criminal Procedure Act 2011 (yet to come into force).

(b) It is a longstanding tenet of our criminal law tradition that an accused be tried by jurors drawn from the place in which the crime was committed.3

That tenet continues to have statutory recognition in New Zealand, in s 5(5)(b) of the Juries Act 1981 which refers to:

... the principle in criminal cases that, so far as practicable, the jury should be drawn from the community in which the alleged offence occurred.

The Juries Act provides that for every city or town in which the High Court sits there is to be a jury district comprising every place within 45 kilometres by the most practicable route from the courthouse. It is to people residing within the jury district that summonses to attend the Court for jury service are issued.4

Change of venue

(c) Section 322 of the Crimes Act 1961 provides that, “if it appears to [the] Judge ... that it is expedient for the ends of justice”, the Judge “may” change the trial venue. Section 322 is best applied against s 25(a) of the New Zealand Bill of Rights Act 1990 which gives every accused “the right to a fair and public hearing by an independent and impartial court”. Section 322 enables a Judge to change the trial venue in order to ensure that.

Onus/threshold

(d) It is not particularly helpful to refer to an onus, and wrong to refer to a high threshold.5 A party applying to change the trial venue needs to persuade the Judge that there is a real risk that it will not be possible to empanel a fair and impartial jury to try the accused at the existing trial location.6 We use the word “real” in the well understood sense that the Judge needs to be persuaded that the risk actually exists, and is not illusory or fanciful.

Discretion/evaluation

(e) Section 322 provides that the Judge “may” change the trial venue. That points to a discretion. But exercise of that discretion requires the Judge to undertake an evaluative assessment. It is difficult to improve on this formulation by Lang J:7

In determining an application under s 322 the Court is required to undertake an evaluative assessment in which it identifies the risks associated with the

trial if it is held at the existing venue, and any means by which those risks may be neutralised or minimised. In the event that it determines that the risks cannot be adequately addressed, the Court is likely to exercise its discretion to make an order changing the venue of the trial to another centre.

[12] Those principles can be seen as equally applicable to s 157 Criminal

Procedure Act.

[13] Further helpful principles are contained in R v Tekahu [2006] 1 NZLR 459 where the design of a court building relevant to whether intimidating behaviour could be safeguarded against was considered, and Department of Labour v Whittall, DC Greymouth 13 June 2012, where reference was made to the AVL facilities at the Greymouth District Court which would assist in linkage of witnesses from other parts of the country or overseas.

[14] Taking into account all the considerations raised in this case, and particularly the facilities available at the Auckland District Court for hearing cases involving a large number of maximum security prisoners, it would appear that it is in the interests of justice for the charging documents to be filed in the Auckland District Court.

[15] If, once the charging documents have been filed and the defendants brought before the Court there is any issue raised about venue, then that matter can be addressed at that time.

A E Kiernan

District Court Judge