Havea v R [2017] NZHC 1426 (26 June 2017)

Last Updated: 24 January 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-5315 [2017] NZHC 1426

LUIGI HAVEA

v

_{THE QUEEN}

Hearing:	19 June 2017
Appearances:	M Kan, F Pereira and J Yang for L Havea G R Kayes, L Radich and H Benson-Pope for the Respondent
Judgment:	26 June 2017

JUDGMENT No 2 OF PALMER J (FAIR TRIAL RIGHTS)

This judgment is delivered by me on 26 June 2017 at 9.45 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:

Kayes Fletcher Walker, Manukau

_{Michael Kan Law Limited, Auckland}

HAVEA v R [2017] NZHC 1426 [26 June 2017]

Summary

[1] Mr Luigi Havea is on trial for kidnapping and manslaughter. He says that, on

1 June 2017, the Crown violated his fair trial rights by allowing his trial files to be interfered with while he was remanded in custody during trial. Some of them went missing. He seeks a direction requiring his presence, should the prison authorities wish to move him from one cell to another during trial.

[2] I consider the Court has jurisdiction to consider allegations of, and make directions to remedy, breaches of the legal rights of a prisoner, remanded in custody and on trial, in ways which impact on fair trial rights. Allowing documents being used to conduct a defence to be interfered with, or to be taken away, on 1 June 2017 was inconsistent with Mr Havea’s right to adequate time and facilities to prepare a defence under s 24(d) of the Bill of Rights. But the breach was cured by time. I do not consider Mr Havea has demonstrated the Crown’s breach of s 24(d) caused irremediable prejudice to the fairness of his trial. I decline to make the direction sought but I direct the Crown to file and serve an affidavit explaining what happened, what measures have been put in place to ensure it does not happen again and what measures have been taken to ensure Mr Havea’s safety.

Facts

[3] Mr Luigi Havea is charged with the kidnapping and manslaughter of Ms Jindarat Prutsiriporn on 29 February and 1 March 2016. He is remanded in custody. The trial started on 1 May 2017. The Crown finished presenting its evidence on 23

June 2017.

Complaint

[4] On Friday 2 June 2017 Mr Kan, for Mr Havea, drew to my attention a written complaint Mr Havea proposed to make to the Department of Corrections about his property at the Mt Eden Correctional Facility being moved:¹

My belongings Court files for our trial and papers were missing due to them moving my property out of my original cell 13, and around to other cells.

People were also going through my court papers while I was at Court . . . . Moving me out of my cell 13 when I was at court, photos and my papers with prayers and poems were ripped up and again people had taken my belongings.

[5] Mr Kan submitted this affected Mr Havea’s right to a fair trial. I invited Mr Kan to file and serve a memorandum setting out what the problem was and what he was asking me to do about it. The next working day, on 6 June 2017, Mr Kan filed the memorandum requested.²

[6] Mr Kayes, for the Crown, suggested there needed to be evidence, in the form of an affidavit, for the Crown to respond to and me to consider. Mr Pereira, for Mr Havea, saw merit in that submission and noted the action sought related to the future. I indicated it was not clear to me that I had jurisdiction to direct the Crown, through the Department of Corrections, regarding cell management. I directed Mr Havea to file and serve an affidavit and brief accompanying submissions if he wished. I indicated the Crown would have the opportunity to file evidence and submissions in response.

[7] Mr Havea swore an affidavit a week later, on Tuesday 13 June 2017.³ He states that, on 1 June 2017, on returning from court to Mt Eden, he was told by Corrections that he was no longer in the same cell. At 9 pm, he says he was told by prison officers they were unsure where his belongings were. Fellow inmates directed him to one cell and then another. When he arrived at the right cell Mr Havea says his trial files, where had been kept organised on a bench top, had been roughly inserted into about three clear plastic rubbish bags. He says he spent two to three hours verifying whether anything had gone missing. He says:

(a) About five pages of photographic exhibits labelled by the Crown as “gang photos” were missing. He says these are crucial to his defence that he is not a member of the Head Hunters gang. He also says that, if patched members of the Head Hunters gang see them, his safety will

_{surely be endangered.}

² R v Liev & Ors Bench Note No 24, 6 June 2017, at [8]–[12].

³ R v Liev & Ors Bench Note No 28, 13 June 2017, at [13].

(b) Notes he made regarding his disclosure files and his instructions to his lawyer were missing.

(c) Formal witness statements by several people to the Police were missing.

[8] Mr Havea estimated, on 13 June 2017, he was about a quarter of the way through organising his trial files back into the order and system he had them before. He said this is frustrating because he cannot efficiently discuss his matter with his lawyers without having to spend significant time rummaging through the disorganised files. He now packs up all the files and hands them in every day to prevent others going through them or them being moved. He says this has significantly affected his focus on the trial.

Crown response

[9] On Friday 16 June 2017, Mr Kayes indicated he had received a response from Corrections which he would distribute to Mr Havea and the Court.⁴ I stated that, if Mr Kan pursued the matter, it could be the subject of argument the next sitting day, on Monday 23 June 2017. It was.

[10] Corrections’ response was in the form of an email from the Acting Custodial

Systems Manager dated 16 June 2017 which states:

I’ve spoken to one of the officers on duty on the 1^st June. He has confirmed he packed Mr Havea’s property and placed it in another cell already occupied. This is not the normal process. If a prisoner’s property has to be cleared from a cell, the property is placed in another unoccupied secure cell or is placed in a secure office until the prisoner returns.

The officer stated at the time he didn’t think to secure it in an office and thought the property would be safe with the other occupant, given his age and compliancy. He said he didn’t consider the cell would be unlocked for 15-30 minutes and another prisoner may have had access to the cell.

At the time of the property being placed in the cell, the other occupant was present. This person is not an associate and was chosen as a cell mate for Mr Havea due to being older, quiet and compliant.

Mr Havea’s property was packed in brown paper bags, (large disposable rubbish bags) and placed in the cell.

Moving forward, Mr Havea has been placed in a single cell and will remain in this cell for the duration of the trial. The cell will remain secured each day and only staff will enter it.

Mr Havea’s complaint forms have been located, will be loaded on the system today, and will be actioned accordingly.

Law

[11] Under s 25(a) of the New Zealand Bill of Rights Act 1990 (Bill of Rights), in relation to the determination of a criminal charge, the person charged has “the right to a fair and public hearing by an independent and impartial court”. Under s 24(d) everyone who is charged with an offence has “the right to adequate time and facilities to prepare a defence”.

[12] In R v Condon, the Supreme Court held the right to a fair trial under s 25(a) is absolute.⁵ If a trial is fundamentally flawed, any conviction must be quashed. But that assessment is made of a trial overall. An “irregularity in one, or even more than one, facet” of a trial will not necessarily require a trial to be set aside.⁶

[13] A s 24 right, as a “constituent element” of the right to a fair trial is not such an absolute guarantee.⁷ As the Court of Appeal had previously stated in Attorney-General v District Court at Otahuhu, s 24(d) of the Bill of Rights is “in aid of the primary right to a fair trial” but it only contributes to the overall fairness of the proceeding as a whole.⁸ Of s 24(d) the Court of Appeal also considered:⁹

(a) the word “adequate”, “as a word of limitation, is used in the sense of sufficient or necessary, not full or complete”; and

(b) “the expression ‘facilities’ suggests an intended focus on the means of preparing a defence”.

⁵ R v Condon [2006] NZSC 62; [2007] 1 NZLR 300 at [77].

⁶ At [78].

⁷ At [77].

⁸ Attorney-General v District Court at Otahuhu [2001] NZCA 187; (2001) 19 CRNZ 29 (CA) at [47].

[14] The Court of Appeal quoted the White Paper for the Bill of Rights:¹⁰

The facts of each case will determine what constitutes an adequate time for the purposes of this provision. ‘Facilities’ to prepare the defence might include access to documents or other evidence required by the defence to prepare its case, the opportunity and the means for personal communications between the accused and counsel while the accused is in custody, and perhaps also access to a library and legal materials if the accused wishes to act in his own defence.

[15] Mr Kan relies on Taylor v District Court at North Shore.¹¹ There, White J further emphasised the fact-specific nature of an inquiry into the adequacy of facilities under s 24(d) and considered it is the adequacy of the facilities available to a defendant “as a whole” which should be assessed.¹² White J stated:¹³

If Mr Taylor was able to establish that he was in fact being deprived of access to adequate facilities to prepare his defence so that there was a real risk that he might be deprived of a fair trial, the Court dealing with his prosecutions might well consider that appropriate directions should be given requiring the prison authorities or the prosecution or both to take steps to remove any impediments and ensure that Mr Taylor can access the facilities he may need.

[16] Section 176 of the Corrections Act 2004 explicitly applies the Bill of Rights to acts done by staff members of a contract prison. And reg 193 of the Corrections Regulations 2005 reflects s 24(d) of the Bill of Rights. Otherwise, however, the Corrections Act and Corrections Regulations do not appear to contain specific provisions that are explicitly relevant to the situation here.

Submissions

Mr Havea

[17] Mr Kan, for Mr Havea, submits that moving Mr Havea’s trial files “during trial”, without his consent and in his absence, violated his fair trial rights because files went missing, further time is required to organise the trial files and privileged

_{information has been accessed by others. Mr Kan says the evidence is that Mr Havea’s}

10. At [49] citing Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at [10.130].

¹¹ Taylor v District Court at North Shore & Ors HC Auckland, CIV-2009-404-2350, 24 March

2010.

¹² At [75].

focus on his defence has been significantly affected by what happened. The two examples Mr Kan gave of the impact of that are:

(a) When Mr Kan needed instructions from Mr Havea about the cross- examination of Detective Senior Sergeant McNaughton, Mr Havea only wanted to talk about his rights to a fair trial. However, the Detective Senior Sergeant still had not given evidence by 19 June. Mr Kan accepted there has been time for that to be remedied.

(b) Mr Yang was impeded in getting instructions from Mr Havea about text messages Mr Havea wished to adduce in evidence.

[18] Mr Kan acknowledged the effects on Mr Havea were at the very beginning after the moving of his property and Mr Havea has found ways of coping since then. Mr Kan complained the prison authorities have not provided Mr Havea with substitute documents. In answer to a question from me Mr Kan initially asserted it was not for defence counsel to remedy Corrections’ breaches. Then he stated that he will and should assist, but had not because Mr Havea has not given him a list of which documents were missing.

[19] Mr Kan also submits the evidence heard at trial indicates what has happened led to safety issues hanging over Mr Havea’s head. Mr Oloamanu, a captain in the Head Hunters gang, gave evidence that Mr Havea was not a member of the gang, and that non-members of the gang were not allowed to wear gang clothing. A photograph of Mr Havea in Head Hunters clothing has gone missing.

[20] Mr Kan submits I have jurisdiction to assess whether Mr Havea’s fair trial rights have been or are being violated. He submitted the email provided by the Crown contains hearsay but essentially confirms Corrections breached its own protocols and may suggest there is an ongoing breach. Mr Kan said he did not suggest aborting the

_{trial, which has a high hurdle he did not consider had been reached. Rather, Mr Kan:}¹⁴

¹⁴ Memorandum regarding fair trial rights of Luigi Havea, 6 June 2017, at 15.

(a) invites me to “make a finding that by moving the defendant’s trial files from one cell to another ‘during trial’ without the defendant’s consent and/or in his absence is a violation of the defendant’s fair trial right”;

(b) “to safeguard the defendant’s fair trial right for the remainder of the trial” submits “a direction requiring presence of the defendant should the prison authorities wish to move the defendant from one cell to another ‘during trial’ would be appropriate”; and

(c) invites me to ask the prison to investigate where the missing documents are.

The Crown

[21] Mr Kayes, for the Crown, submitted it was not appropriate to rule there had been a breach of Mr Havea’s right to a fair trial here because what had occurred was nowhere near the level of materiality or substance that would be required. He said:

(a) Detective Senior Sergeant McNaughton had still not yet given evidence on 19 June so lack of preparation time caused by the events of 1 June could not have resulted in a breach.

(b) Mr Kan opened Mr Havea’s case on 2 May saying he did not accept attribution of the texts so all of the texts, disclosed well before trial, must have been traversed before trial.

(c) If witness statements were missing, Mr Havea’s legal team could provide him with copies which would be an immediate remedy.

[22] In response from a question from me about the evidential status of the email, Mr Kayes advised it could be turned into an affidavit but that would not take things further because it does not go to the effect of what happened on Mr Havea. Mr Kayes noted the safety concern did not appear to have materialised. He also submitted that, if there had been a material or substantive breach of the right to a fair trial, the only remedy would be to abort the trial.

Decision

[23] The Courts are not expert in, or responsible for, the management of prisons. But they are responsible for considering, and ruling on, allegations of breaches of the legal rights of prisoners by those who manage prisons. The Bill of Rights sets out legal standards to which prison authorities are held. If a prisoner, on remand and on trial, alleges that prison authorities are breaching those legal standards, and thereby impacting on fair trial rights, I consider the trial court has jurisdiction to consider the allegation and, if required and if possible, to remedy it. That is a corollary, or necessary implication, of the Court’s jurisdiction to conduct a trial or to abort a trial by discharging a jury under s 22 of the Juries Act 1981 in the interests of justice.¹⁵

[24] The power also lies within the High Court’s inherent jurisdiction to control and regulate its processes and proceedings whenever the justice of the case so demands, in harmony with statute or regulation.¹⁶ The High Court has power under its inherent jurisdiction to stay criminal proceedings where there is state misconduct that will prejudice the fairness of a defendant’s trial.¹⁷ That is a forward-looking power related to the impact of misconduct on the fairness of a trial. There is a duty on a court to exercise such a power where a fair trial cannot be provided.¹⁸ It may be exercised in order to provide a remedy for infringement of rights and to uphold the integrity of the criminal justice system.¹⁹ Where misconduct prejudices a fair trial, the defendant has to demonstrate a connection between the misconduct and prejudice.²⁰ If the inherent jurisdiction extends so far, it must also extend, on the basis of similar considerations, to considering allegations of lesser breaches of rights that impact on the fairness of a trial and, if possible, to remedying them during trial.

[25] Neither the Corrections Act nor the Corrections Regulations say anything about documents used by prisoners on remand to conduct their defence. But s 24(d)

_{of the Bill of Rights safeguards the right of prisoners to adequate time and facilities to}

15. R v Marshall [2004] 1 NZLR 793 (CA) at [15]; R v Bublitz & Ors [2017] NZHC 1059 at [28]– [29].

¹⁶ R v Moke [1996] 1 NZLR 263 (CA) at 266-268; R v Bublitz & Ors, above n 13, at [33]–[39].

¹⁷ Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [40].

¹⁸ At [119], R v Bublitz & Ors, above n 13, at [36].

¹⁹ At [43]–[50].

²⁰ At [62].

prepare a defence. There must be the necessary or sufficient means of preparing a defence but they do not need to be full or complete.²¹

[26] Allowing documents, being used to conduct a defence, to be interfered with or to be taken away from the prisoner, either by prison officers or other prisoners, is inconsistent with providing the necessary or sufficient means of preparing a defence. No excuse or justification is offered by Corrections and it is difficult to think of one that might suffice. Accordingly, I consider that, in acting in the way they did on 1 June

2017, those running the Mt Eden Correctional Facility did not act consistently with s

24(d) of the Bill of Rights.

[27] A breach of s 24(d), as a “constituent element” of the right to a fair trial, does not mean, as the Crown was inclined to submit, that the trial must be aborted. It is possible the Crown could act inconsistently with s 24(d) of the Bill of Rights during a trial without breaching the overall s 25(a) right to a fair hearing that may require abortion of a trial. That would be necessarily so when the breach has not caused prejudice to the defendant or where any prejudice has been or can be remedied.

[28] Here, I do not consider Mr Havea has demonstrated the Crown’s breach of s

24(d) has caused irremediable prejudice to the fairness of his trial. The breach was cured by time. It would be understandable if Mr Havea’s focus was disrupted by his trial papers being jumbled together on the evening of 1 June 2017 and some of them went missing. But that had no appreciable impact on his defence, given what was happening at trial over the following 10 days:

(a) The next day, Friday 2 June 2017, the trial involved watching a DVD of a police interview with a different defendant, agreed facts being read, and evidence from two Crown witnesses. The role of the three counsel appearing for Mr Havea was only to undertake brief cross-examination of one of the Crown witnesses for which documentation would not have

_{been necessary for Mr Havea to provide instructions.}

²¹ Attorney-General v District Court at Otahuhu, above n 8, at [49].

(b) After Queen’s Birthday weekend, Tuesday 6 June and Wednesday 7

June involved another DVD of a police interview with a different defendant and evidence from the interviewing police officer. Mr Havea’s counsel undertook no cross-examination on those days.

(c) On Thursday 8 June Mr Kan undertook brief cross-examination of three Crown witness but the only documentation relevant to them would have been the witness statements of each.

(d) We did not sit on Friday 9 June 2017 due to a funeral. Then there was another weekend. At no point did Mr Havea seek an adjournment.

[29] By Monday 12 June 2017, I consider the breach of s 24(d) had been cured.

[30] In relation to the two examples given by Mr Kan, I do not consider there was prejudice to Mr Havea providing instructions relevant to the cross-examination of Detective Senior Sergeant McNaughton. He was not cross-examined until 20 June

2017. By that time, as Mr Kan appeared to accept, Mr Havea was able to re-organise his materials.

[31] Neither do I accept there was prejudice in relation to the text and call data produced either by the Crown or by Mr Havea. The text and call data was disclosed by the Crown well in advance of trial. The texts Mr Havea proposed to produce contained hearsay statements and were the subject of legal argument and Rulings No

2 and 3 on 13 and 14 June 2017. But there was no suggestion any material difficulties with them derived from Mr Havea’s inability to give instructions. It would be difficult to see how they could, given that such difficulties could have been addressed during the weekends, and the days the trial was adjourned, on: 3, 4, 5, 9, 10, and 11 June

2017.

[32] I also do not accept Mr Havea’s counsel could responsibly have refused to remedy any difficulties that existed from papers being missing. Mr Kan’s statement that he had not done so because Mr Havea had not given him a list of what was missing further suggests any problems could not have been material.

[33] So the Crown’s breach of s 24(d) in relation to facilities was cured by time. Given the lack of prejudice to Mr Havea I do not make the direction sought.

[34] But, while I do not consider the Crown’s breach of s 24(d) of the Bill of Rights has caused prejudice to Mr Havea’s right to a fair hearing, it is still of concern. The Crown has an obligation to ensure it does not happen again. There could be potential safety implications for Mr Havea from some of the photographs that have gone missing. The email provided by the Crown suggests steps are being taken to ensure the same thing does not happen again. But an email from Corrections to the Police is not an assurance directly to the Court. And the email does not address safety implications explicitly.

[35] Accordingly, I direct the Crown to file and serve an affidavit explaining to me what happened on 1 June 2017, what measures have been put in place to ensure it does not happen again and what measures have been taken to ensure Mr Havea’s safety.

..................................................................

Palmer J