Rawiri Kiyomi Iti Omar Hamed Valerie Morse Moana Hemi Winitana Trudi Paraha Urs Peter Signer Emily Felicity Bailey Rangi Kemara Tuhoe Lambert v The Queen

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 29 March 2011
• Neutral Citation: [2011] NZCA 114
• Docket Number: CA862/2010, CA863/2010, CA864/2010 CA873/2010, CA874/2010, CA879/2010
• Court: Court of Appeal
• Date: 29 March 2011

Between

Rawiri Kiyomi Iti

Omar Hamed

Valerie Morse

Moana Hemi Winitana

Trudi Paraha

Urs Peter Signer

Emily Felicity Bailey

Rangi Kemara

Tuhoe Lambert

Appellants

and

The Queen

Respondent

[2011] NZCA 114

Court:

O'Regan P, Arnold and Ellen France JJ

CA862/2010, CA863/2010, CA864/2010

CA869/2010, CA871/2010, CA872/2010

CA873/2010, CA874/2010, CA879/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

C W J Stevenson for Appellant Signer and on behalf of all Appellants

C J Tennet for Appellant Winitana

V C Nisbet for Appellant Bailey

B J Horsley and H R B Stallard for Respondents

JUDGMENT OF THE COURT

The applications for leave to appeal are granted but the appeals are dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
Background	[3]
The decision to order a judge alone trial	[11]
The proposed appeals	[18]
The approach to s 361D	[19]
Application to the facts of this case	[39]
Likelihood that the jury will not be capable of functioning effectively	[40]
The importance of public validation	[58]
Result	[65]

Introduction

1 The appellants are to face trial in May 2011 in relation to various charges under the Arms Act 1983. Some of the appellants are also charged with participation in an organised criminal group under s 98A of the Crimes Act 1961. Winkelmann J granted an application by the Crown for an order under s 361D of the Crimes Act that the trial proceed before a judge alone. 1 The appellants seek leave to appeal against that ruling.

2 The applications for leave have been dealt with together with the proposed appeals. The appeals raise issues about the threshold to be met under s 361D and the application of the statutory test to the facts of the case. The focus is on the requirement in s 361D(3)(b) that the Judge be satisfied that, in the circumstances of the case, the appellants' right to trial by jury is “outweighed by the likelihood that potential jurors will not be able to perform their duties effectively”.

Background

3 In May 2006 police launched an investigation (“Operation Eight”) following information received that a group of persons were involved in what was believed to be paramilitary training in the Urewera Ranges. Police interest centred on what the police considered was a series of training camps. Search warrants were obtained

under s 198 of the Summary Proceedings Act 1981. A range of investigative techniques were then used such as physical searches, visual surveillance and the interception of communications.

4 The factual background is set out in more detail in this Court's earlier decision on the admissibility of evidence obtained as a result of these techniques. 2 For present purposes we need only note that the evidence gathered relates to seven camps in different locations over the period from November 2006 to October 2007. In addition, evidence was gathered from the execution of search warrants in respect of the appellants' homes.

5 We set out as an appendix more particulars of the charges resulting from the evidence gathering described above. In summary, the indictment contains 13 counts and relates to 15 defendants, who figure in various groupings in different charges. 3

6 The first count covers a period of just over a year (2006 – 2007) and relates to five of the appellants. This is an allegation of participation in a criminal group knowing that their participation contributed to the occurrence of a criminal activity or being reckless about that possibility. We adopt Winkelmann J's terminology and describe these as the “count 1 appellants”.

7 Counts 2 to 10 charge the count 1 appellants and others with unlawful possession of firearms or other restricted weapons in relation to various camps. Counts 11, 12 and 13 charge individuals with possession of firearms which, on the Crown case, they were in possession of upon termination of the operation.

8 The basis on which Winkelmann J proceeded was that the likely issues at trial will include the identity of those at the camps and whether those identified were in possession of firearms. If the Crown is able to establish attendance at a camp and possession of firearms, most respondents have indicated that they will defend the

Arms Act charges by claiming that they had possession of the firearms for a lawful purpose.

9 The Judge observed that the basis upon which the count 1 appellants will defend that charge was less clear. Her Honour anticipated however, that even if identification is not an issue, which it may well be, the charge will be defended upon the basis that the appellants were not members of the group, they did not have one of the criminal objectives that define an organised criminal group and they did not have the additional mens rea required by s 98A of the Crimes Act.

10 Against this background, we turn then to Winkelmann J's decision.

The decision to order a judge alone trial

11 We need to note the Judge's initial decision to grant the Crown's application for severance of three other defendants who were charged with unlawful possession of firearms arising out of the last camp in October 2007 (count 10). Essentially, the Judge accepted the Crown argument that this would make the larger trial more manageable, the charge relating to these three defendants had a narrow focus, and severance would mean they would not have to sit through a very lengthy trial when only the evidence as to the last camp would be admissible against them. Severance was opposed only by one of these three defendants. The opposition related to a wish to show solidarity with the current appellants.

12 The Judge also considered whether severance of any other defendants was possible. This included a consideration of the possibility of the trial being severed in two based on geographical location of the defendants, or severance between the count 1 defendants and the other defendants. The Judge ultimately concluded that this was not in the interests of justice.

13 There was no issue that the projected length of the trial took it beyond the 20-day threshold set out in s 361D. Winkelmann J accepted that the Crown's estimate of a 60 day (12-week) trial was reasonable. The Judge also dismissed an argument that all reasonable steps had not been taken to shorten the trial. The proposed appeals do not focus on that aspect of the decision.

14 In terms of the other grounds of opposition to the making of an order, the Judge dealt first with the argument that s 361D was contrary to s 24(e) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) which protects the right to a trial by jury. The Judge said that argument was precluded by the decision of this Court in R v Wenzel4 and the Supreme Court's refusal to grant leave to appeal from that decision. 5 Winkelmann J accepted that the existence of a right to a trial before a jury was a factor to be kept in mind in the exercise of the s 361D discretion. Winkelmann J adopted the observation made by Dobson J in R v Pritchard6 (a case under s 361E relating to judge alone trials in cases of juror intimidation) that any derogation from fundamental rights such as those in s 24 should only occur when the Court is “well satisfied” that such derogation is justified. Winkelmann J also referred to the observation of the Supreme Court in Porter v R that if the court finds an application under s 361D to be “finely balanced” the appropriate course would be to decline to derogate from the protected right. 7

15 The Judge then dealt with s 361D(4), which sets out factors the court must take into account in considering, for the purposes of s 361D(3)(b), the “circumstances of the case”. Winkelmann J noted 8 that in R v A this Court described the task for the Judge under 361D as: 9

… an evaluation of the circumstances of the case based on subs (4) matters and a weighing (and thus a judgment) as to whether it is likely potential jurors will not be able to perform their functions effectively against the right of trial by jury.

16 The Judge went on to note that in R v A the Court said that in the context of s 361D the word “likelihood” refers to the need for the Judge to be satisfied that

there is “an appreciable risk”, a “real risk” that jurors will not be able to perform their duties effectively, or that this is “something that might well happen”. 10

17 We come back later to the detail of her Honour's judgment in relation to the factors in s 361D(4). For now, we note that the Judge concluded that there was a real likelihood that potential jurors would not be able to perform their tasks effectively. Winkelmann J then turned to the balancing exercise, concluding that the balance came down “heavily” in favour of a trial before a Judge alone. 11 The Judge continued:

72

… There is a risk that, notwithstanding their best intentions, jurors will not be able to attend court every day as they are required for the 12 week period, with the consequence that the trial will become still lengthier, and that ultimately, it may have to be aborted. That risk arises from the duration of the trial itself. [73] In addition, when the volume of evidence and evidential directions are combined with a trial stretching over three months and overlaid with different cases for fifteen accused, I have no doubt that this trial will be complex, both factually and legally. I consider that the task of receiving evidence over such a lengthy period of time, and the volume and complexity involved when added to the legal directions that will be required, make this trial one ill-suited for resolution by a jury. It will be too much to ask of a group of twelve that they undertake the careful, forensic analysis of the volume of evidence that will be produced in a twelve week...