R v Wallace [2019] NZDC 6240 (4 April 2019)

Last Updated: 23 August 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.html

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2017-004-001926

[2019] NZDC 6240

THE QUEEN

v

JAMES HAY WALLACE MIKA X MUSTAFA ERINC YIKAR

Date of Hearing:	18 March 2019
Appearances:	S Foote and H Benson-Pope for the Crown D Jones QC and H Drury for the Defendant Wallace B Hunt and H Rogers for the Defendant X R Reed QC for the Defendant Yikar
Date of Judgment:	18 March 2019
Reasons Judgment:	4 April 2019

REASONS RULING OF JUDGE R J COLLINS

[For aborting the trial]

Background

[1] The defendants faced the following charges:

R v JAMES HAY WALLACE & ORS [2019] NZDC 6240 [4 April 2019]

(i) James Hay Wallace is charged with indecent assault in relation to [complainant 2] in 2008;

(ii) James Hay Wallace is charged with indecently assaulting [complainant 1] in October 2016;

(iii) James Hay Wallace and Mr X are charged with attempting to dissuade [complainant 1] in April 2017 from giving evidence at Mr Wallace’s trial;

(iv) All three defendants are charged with attempting to dissuade [complainant 1] in May 2017 from giving evidence at Mr Wallace’s trial; and

(v) Mr X is charged with attempting to dissuade [complainant 1] in September 2017 from giving evidence at Mr Wallace’s trial.

[2] The full background to the current trial is in fact recorded in an earlier pre-trial decision.1

The leadup to the decision to abort

[3] The sixth day of evidence concluded on Wednesday 13 March 2019.

[4] The evidence of the two complainants, [complainant 1] and [complainant 2], who alleged indecent assaults, had been completed. The evidence of [witness A], an important witness in relation to [complainant 2]’s indecent assault allegation had been completed. A late application by JHW to lead veracity evidence in relation to [witness A] was declined and is subject of a separate ruling.

[5] There had been substantial evidence heard in relation to Mr X’s role in charge three – the first attempt to dissuade [complainant 1] from giving evidence. In addition there had been substantial evidence from [complainant 1] about charges four and five.

1 R v JHW, X, and Y CRI-2017-004-001926 16 November 2018, [2018] NZDC 23552.

In terms of the Crown case what remained was further evidence in relation to charges four and five.

Defence opening statements

[6] Broadly summarised they were as follows. For James Hay Wallace, Mr Jones QC said there was a complete denial of the [complainant 2] allegation. Second, in relation to [complainant 1]’s allegation of indecent assault he said if there was any physical contact with [complainant 1] in [complainant 1]’s room on the night in question it was to assist [complainant 1] who was ill. There was a complete denial of any sexual touching or assault. In relation to the attempting to dissuade charges Mr Jones said that the defendant had no knowledge of the actions of Mika X and the actions of the immunity witnesses. He addressed the jury as follows:

As far as the attempting to dissuade charges are concerned, he had no direct contact with [complainant 1]. He had no direct contact with Mr Goulter or Ms Edmonds, the two immunity witnesses. What the Crown’s saying is, oh, because he had funded Mr X, he must’ve been involved. Which is an enormous assumption and contrary to the written material that was provided to the Crown.

As far as the May event is concerned, you’ve heard it referred to briefly as the Gold Coast incident. Goulter and Associates is a public relations company, specialising in reputational management. And Mr Wallace has said in a written statement to the police, “I was led to believe that [complainant 1] was trying to sell his lies to the media and I went to an accredited, reputational management firm that had Michelle Boag, who is a well known reputational management person, or PR person, so that the media would not print this. That is what he said to the police.

Now, with any criminal charge, there has to be somebody doing something and somebody has to have a guilty mind. If for example Mr Wallace was saying, “Look, I need this media thing sorted out,” and Mr Yikar for example goes and tries to sort it out and they're both thinking this is sorting out media damage because there’ll be a breach of suppression orders potentially and others are doing things that they don’t know about and doing things in a dodgy way, they are not guilty of any attempt to dissuade because they don’t know about it. They don’t have a guilty mind.

Let me give you an example. The neighbour comes over and says, “Can I borrow your hammer? I've got a couple of nails on the deck that I need to knock in.” Sure, give him the hammer. He goes down the road, hits someone on the head, kills them. You’ve provided the murder weapon and your defence is, “I had no intention of assisting in a homicide,” and you would have a complete defence provided the police believed it or provided a jury accepted it but you would be innocent. That's important, the act and the guilty mind. To be guilty of anything, you need to have a guilty mind. That is critical in this case because as far as Mr Wallace is concerned, he is above board. He

does things properly, he does things correctly, he did things through his lawyer and that is how he does things.

If somebody else has done something else like Mr Goulter and done things in an untoward way, that’s Mr Goulter.

[7] For Mr Yikar, Ms Buckley stated in her opening statement to the jury the following:

As to the evidence that will be called in respect of count 4, it’s the Crown, as you know, that brings the charge and they have got to put all relevant evidence in front of you. They can’t cherry pick, they have got to be fair. And we are just going to see as we go through the trial exactly how fair they have been, and this will have a significant bearing in respect of the immunity witnesses which, by the way, Mr Goulter and Ms Edmonds are the key witnesses in respect of the allegation in count 4 for Mr Yikar.

Now, His Honour told you yesterday that you have to keep an open mind and you’ve heard it enough and you’re thinking, “Yes, we get it, we get it.” At this point of the trial I don’t have to tell you anything in respect of the defence case for Mr Yikar. But I intend to tell you that there is going to be some defence evidence. Now, I’m not required to do that until the Crown closes its case, but Mr Yikar knows very clearly his defence in this, in that he had no knowledge at all that any attempts were being made in the way in which they had been made by the immunity witnesses and on the Crown’s allegation, Mr X, with [complainant 1].

[8] For Mr X, Ms Hunt opened to the jury in the following way:

There are three aspects to the defence for Mr X. First, he says that this offer to pay [complainant 1] the sum of $15,000 was in connection with [complainant 1]’s development as an emerging artist. He was being sponsored and promoted by an arts foundation which was organised and developed by Mr X. Mr X did not at any time offer $15,000 or any amount of money to dissuade [complainant 1] from giving evidence and any transaction with a cheque of any amount and any offer associated with any offer that was made was associated with this arts foundation programme and it’s called, you’ll hear when the evidence is given, an Emerging Leaders Programme. Any offer to assist [complainant 1] was in connection with that programme and his development as an artist and it had nothing whatsoever to do with the complaint against Mr Wallace or in relation to these proceedings.

Secondly, Mr X says that in his role as mentor and supporter of [complainant 1], he talked to [complainant 1] about work opportunities. He looked for work opportunities for him, he was actively advancing his career and developing it with him and he did that throughout the time that he was working with him and mentoring him but those actions and that support have nothing to do with the allegations which he has made against Mr Wallace and there was nothing in even a shadow in the way of bribery or corruption in the work that he was doing with [complainant 1] and he did not at any time threaten [complainant 1]. He did not threaten him about a defamation action or what might happen to him if he came back to New Zealand. He was concerned about his welfare and he was offering him guidance and support.

Thirdly he says, and this is important, he says he had no intention to do anything to dissuade [complainant 1] from giving evidence in this trial or any other trial relating to James Wallace. That is he did nothing to try to dissuade [complainant 1] but importantly he did not have any intention to do anything to dissuade [complainant 1] from giving evidence.

[9] On what was to be the seventh day of evidence I was informed shortly before 10am that there was new evidence and the counsel needed to see me in the absence of the jury. The evening before the officer-in-charge of the case [Sergeant Y] had been told by the immunity witness Alison Edmonds that there was in existence a recording of a discussion between Mr Yikar, Mr Goulter and Ms Edmonds. I was told copies of the recording had just been made available to the Crown and would shortly be made available to counsel. The Crown sought an adjournment of the trial to later in the day for all counsel – prosecutors and defence counsel – to have the opportunity to listen to the recording and assess its significance.

[10] Prior to my conveying to counsel that we would wait until we knew what was recorded Ms Buckley, inter alia, made the following submission:

So that’s another relevant factor that Your Honour will need to consider and boxing on with the trial, with respect, Sir, in regards to my position is not a realistic possibility. The Crown has failed to turn its mind to the fact that prima facie I am in a position of conflict, given what they have recorded on the job sheet thus far.

Now, Sir, I opened on the basis that there would be defence evidence. I have a signed 43-page brief of evidence for my client, and indeed that may not just have an impact on my position with regards to my ability to continue as counsel in the trial, but clearly that may also impact on the way in which the trial is advanced with regards to Mr Wallace.

The Crown has clearly not considered the position of counsel acting for Mr Yikar in respect of just boxing on, because it is pointless boxing on, Sir, if I can no longer act. Because by dint of my not being able to act any further would mean that the trial has to be aborted.

[11] At 4pm Mr Foote in summarising the late disclosed recording advised:

But I cannot overstate how probative it is to charge 3 and 4 and how damning it is, particularly for Mr Yikar and James Wallace. It is an hour of the conspirators talking about their conspiracy to the point where on two occasions they recognise the criminal nature of what they are doing and they talk about that. They talk about the fact that what they’re doing is perverting the course of justice and they talk about the statutory penalty for it

[12] Following Mr Foote’s summary of the recording the following occurred:

THE COURT:

Well, I don’t require any applications at this point. I have, in any event, released the jury until Monday, but in light of what Mr Foote’s advised, does any counsel want to be heard this afternoon or simply say that you want time to consider what’s been disclosed and take some instructions? Ms Buckley?

MS BUCKLEY:

Sir, I can’t continue to act. I’m conflicted, Sir.

[13] The following discussion then occurred with Ms Buckley:

THE COURT TO MS BUCKLEY:

Q. Thank you for that minute from Gilbert J because I don't know what was really behind it, but that was a situation where your client in that case had – he was already in the middle of – well, he’d given evidence-in-chief.

A. And had been cross-examined by co-defendant counsel Mr Kay and was under cross-examination by the Crown at the time that the disclosure was discovered. But, irrespective of that, I’m in the same position here with regards to signed instructions and now – well, there’s two things which I’ll address Your Honour on. The first is I’m conflicted. I’m an officer of the Court first and I’m not prepared to continue. It would be entirely improper for me to do so as counsel given the position I now find myself in, so that’s the first thing.

Q. I’ve got no issue whatsoever with your representation of Mr Yikar but does the problem arise, or difficulty arise, at any point prior to some acknowledgement or some statement by him, and this is still, I’m only talking possibilities, I’m not saying I have a view of what the evidential value is or not, but that he says, “Well, what I had previously told you and signed is wrong, it’s false, but I still want you to advance that as my defence.” I mean, that’s the quintessential situation where there’s a conflict, is that a defendant says to counsel, “Here is my confession or acknowledgement of guilty but I want you to advance a misleading situation.” It’s always been the case that counsel can act, simply to put the prosecution to proof.

A. No, Sir, it’s not a position where I can continue to act and, with respect, Sir –

Q. Okay, that’s fine, and I’ve raised it, and you don’t need to go any further.

A. No, thank you, Sir.

Q. Because the law’s clear that there’s a point at which it’s not for a Judge to take matters any further.

A. No, Sir.

Q. But can I just – I want to make it quite clear that that doesn’t bring the trial to an end for anybody, including Mr Yikar.

[14] Ms Buckley also repeatedly urged me to listen to the recording. I did that on the evening of 14 March.

[15] Overnight the Crown filed a memorandum questioning whether there existed a situation where it was necessary that Ms Buckley be given leave to withdraw. The following discussion occurred between Mr Foote and myself on the morning of 15 March when Court resumed.

THE COURT TO MR FOOTE:

Q. Mr Foote, I’ve seen your email this morning. I accept that the Crown has an absolute legitimate interest in a trial proceeding, but can the Crown really be heard in a situation where counsel says that for professional reasons they’re not in a position to continue?

A. I accept entirely that Ms Buckley says that a conflict has arisen between her obligations as an officer to the Court and her obligations to her client, then the Crown does not seek to look behind that and entirely respects her word about that as a respected practitioner. But it wasn’t clear to the Crown yesterday that that is exactly what Ms Buckley was saying, as opposed to a position where instructions have changed in a radical way and therefore new instructions needed to be taken, or that there was some other conflict, the nature of which wasn’t apparent to me. So if it is the former then I agree with Your Honour the Crown does not seek to go behind that and the word of Ms Buckley is accepted entirely. But otherwise, the grounds ought to be made with more specificity, because it may be a situation where counsel just has to soldier on.

Q. Yes.

A. So that was the only – Crown wasn’t aware that Ms Buckley was going to make that application yesterday or the grounds. So that is the only gloss if you like, or not gloss, that is the Crown’s considered position.

Q. Yes, no, thank you.

THE COURT:

Ms Buckley and Ms Archibald, in the circumstances which I will briefly detail in a minute later are both given leave to withdraw and they may, of course, obviously now withdraw.

[16] In addition, overnight Ms Hunt filed a memorandum seeking a mistrial from Mr X’s point of view.

[17] From the above there can have been no doubt about the ground on which Ms Buckley was given leave to withdraw. There was a conflict between Ms Buckley’s duties as an officer of the Court and her client’s instructions. Neither that the case had become more difficult evidentially for Mr Yikar, nor that the defendant might resile from his initial position as conveyed to the jury in counsel’s opening statement, nor that counsel might feel some embarrassment in front of the jury in having to change “tack” are sufficient to grant leave to withdraw at that point in a trial. Ms Buckley insisted she was conflicted and that insistence persisted following exploration of the issue. The only possible conflict that could have arisen was instructions that the defence be advanced on a basis counsel knew to be misleading. As can be seen at para

[14] above Ms Buckley and Ms Archibald were given leave to withdraw.

[18] The trial was adjourned until Monday 18th when the jury was due to return. Any decision on the future of the trial prior to Mr Yikar having further time to consider his position, receive independent advice and provide instructions was premature. On Monday 18 of March Ms R Reed QC appeared for Mr Yikar. She did so on limited instructions to seek a discharge of the jury and to seek an adjournment. The Crown, subject to one minor condition, did not oppose the application. Severance of Mr Yikar’s trial was not appropriate. Ms Hunt in any event sought the abortion of the trial for her client. Mr Jones also sought that the trial be aborted.

[19] Severance and adjournment of Mr Yikar’s trial and proceeding in his absence against Sir James Wallace and Mr Mika X was not an option sought by anyone. In any event it was not appropriate.

[20] In the circumstances I had no choice but to discharge the jury.

[21] Despite being needlessly reminded of the fact, I was always acutely aware the situation had been brought about by the inadequately explained actions of a Crown witness who had been granted immunity. However the focus required was on an examination of the circumstances which either dictated or did not dictate the aborting of the trial.

R J Collins

District Court Judge