R v Aitken HC Rotorua CRI-2008-070-6480 [2011] NZHC 1554 (13 June 2011)

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In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4:30pm on the 13th June 2011.

[1] When this trial commenced on 21 March 2011 the indictment contained the following charges against the following individuals:

(b) one count of murder against each of John Aitken and David Anderson in respect of the death of William Taikato;

[2] By the effective conclusion of the Crown‟s case,1 the Crown had already accepted that Puata should be discharged on the count of murdering Darryl Crawford, and Anderson should be discharged in respect of the count of murdering William Taikato. This left each of Puata and Aitken still facing a count of murdering William Taikato, and Anderson still facing the accessory count. That was the state of the indictment at the time the Crown closed its case on 6 April 2011.

[3] At that point all three defendants applied for discharge and/or stay in respect of the remaining counts. After hearing argument from counsel on 6 April 2011, I discharged the defendants on those counts advising that reasons would follow. I reserved the question of stay. The following sets out my reasons for discharge and my decision in respect of the stay application.

[4] The applications and submissions for the accused were aimed at making out two propositions:

1 There was one more possible witness for the prosecution, Detective Sergeant Grey, but he would only be called in the event that the application by Puata for discharge was unsuccessful.

(b) that various procedural irregularities made it impossible for the accused to receive a fair trial.

[5] The sufficiency of evidence ground was pursued under s 347 of the Crimes Act 1961. The fair trial ground was pursued either as an alternative ground under s 347 (Anderson), under the court‟s inherent power to grant a stay of proceedings (Puata), or both (Aitken).

[6] It is simplest to deal with the two grounds separately. I will structure my reasoning accordingly. I will then confirm my conclusions with respect to the application for discharge on the first ground and give my answer with respect to the stay and discharge applications on the second ground.

[7] The leading cases of R v Flyger2 and Parris v Attorney-General3 scribe a bright line between the functions of Judge and jury in this area. It is not for the Judge hearing a s 347 application to attempt to predict what verdict the jury might reach. The question is not whether the Crown‟s case is weak – it is rather whether a conviction would be safe.4 A conviction will not be safe if the evidence is simply inadequate to prove a necessary element or elements of the offence when viewed objectively. On the other hand, issues of witness credibility and reliability, and the weight to be given to any evidence, are matters within the preserve of the jury.

_{(where it is the Judge‟s duty to intervene) and calculations of
witness credibility and}

evidential weight (which are properly for the jury alone). This is the zone in which there is some evidence to found a conviction:5

[9] In some situations the problems with evidence of this kind will be so great as to make any conviction unsafe. In others, the strength of the inculpatory evidence will depend entirely on the view a jury will take of a witness‟ reliability or credibility. In the latter kinds of case, taking that judgment away from the jury would be usurping their function. The authorities suggest that in this middle ground,

[10] Some special considerations have developed around one subcategory of cases occupying the middle ground. This subcategory involves cases in which the only evidence against an accused is evidence of his or her own statement. Where this is the case, a jury can still convict on the statement alone, but the case will only be allowed to go to the jury if, in the court‟s view, the alleged statement is cogent and

satisfactory evidence of the offence charged, and has been convincingly proved.7

The reason for this stricter than usual approach is that, in this narrow subcategory, there is nothing but the accused‟s statement to prove that a crime was committed at all. There is no “composite structure” of inculpatory evidence into which the confession can be placed as part of a wider picture of guilt.8 The courts should therefore move with caution in deciding whether to allow the jury to rely on such statements alone.

[11] With these general principles in mind I turn now to address the cases for the three accused. I will address Puata‟s application first – his circumstances being rather different to those of his co-accused - and then I will deal with Aitken and

5 R v Galbraith [1981] 2 All ER 1060 at 1062 (CA) per Lord Lane CJ cited in both Flyger at [17] and

7 _{R v Lord and Doyle [1970] NZLR 526
(CA), recently affirmed in R v Clapham [2008] NZCA 273.}

[12] The facts alleged by the Crown to implicate Puata in the murder of William Taikato are different from those alleged against Aitken and Anderson. In Puata‟s case the theory is that he was paid by Aitken and Anderson to kill Taikato and that he did so somewhere in the Kaimai ranges. The only evidence in support of these allegations was a confession that Puata is alleged to have communicated to Shelley Lawson. There is no other admissible evidence of any kind. As I have said in earlier rulings there is no body and none of the usual forensic evidence. The principles in R v Clapham and R v Lord and Doyle are engaged accordingly.

[13] Mr Balme (who presented this part of the argument for Puata) argued that the alleged confession was neither cogent nor satisfactory in its content and the fact that it was given at all was not convincingly proved. He argued that although Lawson‟s evidence in court was that Puata had confessed to her, a jobsheet in relation to her police interview of 17 July 2008 (disclosed after her evidence was complete) was at odds with this evidence. In the jobsheet, Lawson did not say that Puata confessed. Rather it says Puata told Lawson that Aitken and Anderson had killed Taikato. It was just Lawson‟s opinion that Puata was involved in Taikato‟s death. In addition, counsel argued, there were other inconsistencies in the detail of her evidence in court as against the jobsheet but the key issue was the absence of a reference to the confession itself.

[14] The Crown accepted that the late disclosed jobsheet raised questions about the reliability of Lawson‟s evidence. Mr Hollister-Jones for the Crown concluded that:

The Crown accepts in these circumstances the court will have to carefully weigh the cogency of Puata‟s confession to Mrs Lawson before Count 2 against Puata can be left to the jury.

[15] In order to address these submissions, it is necessary to give a little more of

Puata. Her evidence was that Puata confessed on different occasions to murdering

Darryl Crawford and William Taikato. Despite that confession evidence, the Crown accepted, as I have said, that Puata should be discharged on the Crawford murder count. On the charge relating to Taikato, Shelley Lawson‟s evidence was that Puata arrived at her house at approximately 6.30am one weekday morning in December

2007, in a nervous state. She invited him in to have a coffee and they smoked cigarettes on the deck. The evidence-in-chief was as follows:

A: The names he told me were Johnny Rebs and Dave Anderson. Q: Did those names mean anything to you?

A: That they had picked up Willie to do a hit. Willie was the hit. Q: And what had happened to Willie?

[17] “Moony” was Puata‟s nickname. Shelley Lawson said she later found out, from Hikuwai Lawson that Puata had left a black handgun at their home and that Hikuwai had hidden it in one of their drawers. Puata retrieved the gun that afternoon. Shelley said that Puata‟s confession was repeated on a later occasion.

[18] Mr Sutcliffe cross-examined Shelley Lawson. He challenged her with respect to positive motives to lie, changes in her statements, and possible collusion with Hikuwai during the police investigation.

[19] By the time of the third trial date Mr Sutcliffe had received Detective Sergeant Gray‟s handwritten notes of the 17 July 2008 interview in disclosure, but nothing more. Mr Sutcliffe did not have the jobsheet, the police having advised it was lost. The notes record that Shelley told police that Puata said “Johnny Rebs and Dave Anderson” killed Taikato; there is no mention of Puata himself confessing. Mr Sutcliffe cross-examined extensively on the inconsistency between Shelley‟s evidence-in-chief and the handwritten interview notes. The relevant passage from the notes of evidence is as follows:

Q. ... You‟ve told us, in your evidence, that Puata came to your home and confessed to killing Taikato?

Q. And when you went into the police station, as you say, it was a big decision for you to go there, but the record will indicate that you did not tell the police that Mark Puata confessed to killing Willie Taikato rather, it indicates that he told you that Johnny Rebs and Dave Anderson had done it. Is there a reason for that?

Q. And indeed, in that job sheet, notebook entry of the police officer, Detective Sergeant Ray (sic), there‟s not a single mention of Mark Puata telling you that he was involved in the killing of Crawford. Did you forget that?

Q. - Mrs Lawson. Convenient loss of memory? A. Yeah, really convenient isn‟t it.

[20] Shelley explained the difference between her evidence-in-chief and the interview notes by saying she could not remember that far back. But beyond that Mr Sutcliffe made little headway.

[21] A week after Shelley Lawson gave evidence in the trial, a jobsheet relating to the 17 July 2008 interview turned up. I will discuss the circumstances of its appearance in relation to the second ground. The jobsheet was prepared the day after the 17 July interview and crucially provides as follows:

Moon said to me, “I‟ve just done a hit up the Kaimais”. ... Moon then said to me, “Johnny Rebs and Dave Anderson have killed Willie”. He also said, “Willie was shot in the back of the head”. He then said, “if they find Willie they will find the bullet-hole but not the bullet because we‟ve taken it out.”

[22] This jobsheet provides a much stronger basis for the defence contention that Shelley Lawson never told Detective Sergeant Gray that Puata had confessed to Taikato‟s murder. It suggests her view of Puata‟s involvement was originally opinion, rather than confession-based and that the confession component of her evidence evolved later.

[23] It is true that Puata is alleged to have opened the discussion with Lawson that morning by saying “I‟ve just done a hit up the Kaimais”. That is as close to a confession as the record of the interview gets. The problem is it does not really amount to a confession at all. It does not necessarily mean “I murdered Willie Taikato”. At best it could mean “I was involved in the killing of Willie Taikato”, but that begs the question. Whether that involvement was sufficient to amount to responsibility as a principal or party is not resolved by that sentence, and especially not in light of the subsequent comment that specifically pins the killing on Aitken and Anderson.

[24] The jobsheet also records Shelley Lawson‟s extensive discussion with others about the alleged killing in the days prior to the interview. For example, it records that she spoke to Lorraine Tautari the day before the interview and that Tautari told her “Moon is involved in killing Willie, but that‟s all I‟m saying.” Greasy Dogs

member Andrew Spicks, is alleged to have told her that Taikato‟s car had been taken by Anderson and Aitken. She also told Detective Sergeant Gray that someone called “Donna” had mentioned something about Taikato to Lawson‟s sister, and that Donna would be worth talking to. Given the sharp difference between this jobsheet and Lawson‟s later evidence in relation to the alleged confession, there is a strong argument that the later version of the evidence evolved after discussions with others at the time of the interview and (probably) afterward as well.

[25] There are other smaller inconsistencies. The jobsheet records for example that Shelley saw Puata pull a handgun out of a holster under his vest and ask Hikuwai to hide it for him. At trial, Shelley said she did not see that handgun but that Hikuwai had told her about it. The jobsheet says that Puata collected the handgun a couple days later, but in her evidence in court Shelley says collection was the same afternoon. These inconsistencies are not significant in themselves, but when combined with the fundamental shift in her evidence and the potential sources of that shift, they provide important context.

[26] Again it is to be remembered that there is no other evidence before the jury implicating Puata in the murder of Taikato.

[27] In that context, I am not satisfied that Shelley Lawson‟s evidence that Puata confessed to her one weekday morning in December 2007 is sufficiently reliable to support a conviction on its own. The confession itself is far from convincingly proved. As I have said there is direct reference in the 17 July interview to Puata saying he had done a “hit up the Kaimais”, but that in itself is not a confession to murder. The possibility that the confession to murder evolved later in Lawson‟s mind is too strong to found a safe conviction in terms of the requirements of R v Clapham and R v Lord & Doyle.

– were to give evidence for the Crown but have since been dropped because of their manifest unreliability.

[30] The Crown‟s theory of the case against Aitken and Anderson was that Aitken shot Taikato at the Greasy Dogs pad at Welcome Bay and that Anderson helped Aitken to dispose of the body. Despite the allegations against Puata, it was the Aitken/Anderson scenario that was the Crown‟s primary theory.

[31] This theory relied for the most part on the evidence of two witnesses – Luke Dobbs (an associate of Aitken and Anderson in the methamphetamine trade) and his partner Challise Gordon. Other witnesses gave evidence of bad blood between Aitken and Anderson and Taikato but this was contradictory. There was also allegedly supporting evidence from mobile phone intercepts and a conversation between a person related to Taikato by marriage and Aitken. It is sufficient to say at this stage that the “supporting” evidence in this case was equivocal at best. Thus the key witnesses were Dobbs and Gordon. Their evidence was important in two ways.

[32] First, Dobbs provides an eye witness account of a shooting. Dobbs said he visited the pad on the afternoon of 19 December 2007 along with Gordon. Gordon was heavily pregnant and did not get out of the car. Dobbs says he went into the pad to “score” off Anderson. Dobbs says he stumbles upon an altercation between Aitken and Taikato while there. During this altercation he says that Taikato is shot in the lower torso by Aitken. He says Aitken used a pistol.

[33] Dobbs was not able to confirm that Taikato was in fact killed by the first shot, but in the process of exiting the pad, he says he hears a second shot.

[34] Gordon confirms that she hears one, maybe two shots from her position waiting in the car.

[35] Second, both Dobbs and Gordon give evidence of a later confession by Anderson. This aspect of their evidence relates to a visit Anderson allegedly made to them while they were staying at the home of Luke Dobbs‟ father Warren Dobbs.

This allegedly occurred a day or two after the shooting. Luke Dobbs and Gordon both say that during a long methamphetamine session, Anderson confesses to assisting in the disposal of Taikato‟s body.

[36] Mr Snell and Mr Kaye both argued that Dobbs‟ and Gordon‟s evidence was manifestly unreliable because they were admitted liars, were objectively shown to be wrong in important aspects of their evidence and were inconsistent over time and vis-à-vis each other and Warren Dobbs. The Crown‟s response was that while Dobbs‟ and Gordon‟s accounts had changed they had evolved rather than being directly contradictory. Apart from the timing of the visit to the pad, there was nothing to show that Dobbs‟ account of the shooting was impossible, and as to timing, it was for the jury to decide whether Dobbs was lying or simply mistaken. As to the alleged later confession by Anderson, the Crown argued that the evidence of Dobbs and Gordon could be believed by the jury on reasonable grounds even if it was inconsistent with Warren Dobbs‟ evidence. The Crown said there was also circumstantial evidence supporting what Dobbs and Gordon had said: the fact that Taikato was last seen on the afternoon of 19 December 2007, and cellphone data relating to Taikato, Aitken and Anderson.

[37] As discussed, the authorities provide that matters of weighting, credibility and degree are all for the jury and it will be exceptional for a Judge to pre-empt the jury‟s deliberations. Where however the prosecution evidence has become so discredited or undermined that to allow the case to go to the jury could risk the production of an unsafe verdict, then it is the duty of the court to intervene to prevent a miscarriage of justice.

[38] I have found that the evidence of Luke Dobbs and Challise Gordon is so manifestly unreliable that, although Dobbs says he saw Aitken shoot Taikato, it would be quite unsafe to allow a jury to rely on their evidence in its verdict. There are four broad reasons for this view:

(d) there is no other evidence that would support a conviction. [39] I turn now to consider each of these categories.

[40] Mr Kaye and Mr Snell drew attention to a number of inconsistencies in Dobbs‟ and Gordon‟s evidence – including inconsistencies surrounding their movements between Wellington and Tauranga in December 2007 – however I will focus on those that relate directly to their account of the pad incident and of Anderson‟s confession.

[41] Dobbs did not allege that he saw the shooting at the pad until 26 May 2010. Dobbs made four statements prior to his statement on 26 May 2010.9 Three were statements to the police on 6 May 2008, 31 July 2008 and 29 May 2009 each of which was confirmed as true and correct. The fourth statement was made in depositions on 6 April 2009 under oath. In none of these four statements does he mention having seen a shooting. Similarly, Gordon does not mention that she heard

[42] Dobbs accepts that he did not tell the whole truth in the earlier statements. He says that he did not want to say what he actually saw because evidence placing him at the scene when the murder takes place might have been implicated him. It is difficult to see the logic of this. It is just as likely (particularly in light of later statements he made to which I will refer below) that his story becomes ever more

9 This statement was followed by Dobbs‟ most recent statement on 12 June 2010.

[43] Another issue is timing. Dobbs is adamant that he arrived at the pad between

1pm and 1.30pm on 19 December 2007. He is adamant that Aitken and Taikato are both there at that time. That timing is simply not possible. Several credible witnesses including mechanics who had been working on Taikato‟s vehicle on that day gave evidence to the effect that Taikato was alive at 5pm when he picked his car up and paid for repairs.

[44] Although less cogent, phone records also indicate that Taikato (or at least his phone) was communicating with other witnesses and parties until at least 7.33pm. Taikato‟s phone does not finally fall silent until after midnight.

[45] Gordon‟s evidence is consistent with Dobbs‟ faulty evidence in this respect. She says they went to the pad in the “afternoon”. Even if Dobbs was genuinely mistaken as to timing (perhaps due to distorted perceptions from methamphetamine use) that could not be true of Gordon. She was heavily pregnant at the time and says she was not taking drugs.

[46] Dobbs also gives inconsistent evidence about where he was standing in the room and what he could see when the shot is fired. In his 6 May 2008 evidence he says he has a discussion with Anderson on the stairs leading to the upper floor at the pad. He is standing about three stairs up from the bottom. But in his evidence-in- chief this year, Dobbs indicates he is standing at floor level discussing matters with Anderson and accepts that he could not see the ground outside the pad or the bottom of the fence. He says that he could see Taikato lying on the ground but, from the position he says he viewed matters, it is difficult to see how this could be so. He was viewing the altercation outside through a window and he admitted that he could not see the bottom of the fence, or Taikato‟s feet from that position when Taikato was upright.

[47] In his statement to the police on 26 May 2010 (the first statement indicating he witnessed a shooting) he said he saw Aitken lower the gun and shoot Taikato in “the left leg”. He said he saw Taikato‟s “body twisted a bit, then he fell forward onto the ground”, and that he could see Taikato “lying on the ground. He was sort of, like, in the recovery position on his stomach.”

[48] Dobbs‟ evidence-in-chief this year differed from this in marked respects.

[49] In his evidence-in-chief Dobbs says that from his vantage point he saw Aitken pointing the gun at the “lower part of [Taikato‟s] torso”. He says he heard the gun go off and then Taikato was “blown backwards or towards the ground”. Mr Kaye invited Dobbs to stand and show the court where the gun was pointing. Dobbs, with marked reluctance, eventually pointed to a spot just below the navel. When the inconsistency between falling forward from his earlier statement and being blown backwards in his evidence-in-chief was put to Dobbs, he responded that he found it hard to believe that he told the police that Taikato had fallen forward. He said rather it was a small twist in which Taikato did slump forward slightly after being blown backwards. He attempted to further explain the inconsistency by saying that he “gapped it” as soon as the gun went off. He said the police must have gotten his story wrong on 26 May 2010.

[50] The evidence relating to his departure from the scene is also inconsistent. On

26 May 2010 Dobbs said “Dave was turning me around towards the back doors and I ran out the back. Before I got outside the ranchsliders I heard another gun shot.” In his evidence-in-chief Dobbs said he left the pad without being ushered out by Anderson and was half-way down the drive before he heard the second gun shot.

[52] A key aspect of the evidence of Anderson‟s visit to Warren Dobbs‟ home is Anderson‟s possession of the pistol that Dobbs says he saw Aitken shoot Taikato with at the pad the previous day. Dobbs did not disclose Anderson‟s possession of the gun to police until 29 May 2009. The police interviewed Dobbs on that occasion because Warren Dobbs gave evidence at depositions the previous month that Anderson had a gun when he visited Warren‟s home looking for Luke. Pre- depositions, neither Luke nor Gordon had mentioned the gun to police; post- depositions (from 29 May 2009 (Luke) and 18 August 2009 (Gordon)), both Luke and Gordon recalled the gun.

[53] Dobbs‟ explanation for this discrepancy, given during cross-examination, was itself inconsistent. First, Dobbs responded that he thought he had mentioned the gun right from the start, and that, if he hadn‟t, it was because he had a lot to remember. Later, however, he said that he made a conscious decision to withhold that evidence, because he did not want to talk about the gunshots at the pad.

[54] Dobbs was also inconsistent about the kind of gun. In his 26 May 2010 statement Dobbs says it is a revolver. On 12 June 2010, he says it had a clip. In his evidence-in-chief he was “relatively sure” that it had a barrel and no clip.

[55] Assessed as a whole, it is impossible to conclude that Dobbs‟ evidence evolves into his evidence-in-chief at trial. The inaccuracy about when the shooting occurred, and the inconsistencies about how it occurred, completely undermine Dobbs‟ evidence of what he saw at the pad in my view. Similarly, Dobbs‟ inconsistency regarding the gun that Anderson brought to Warren Dobbs‟ home, when combined with the inconsistencies between his, Gordon‟s and Warren Dobbs‟ evidence of that visit, discussed below, cast significant doubt on his account of Anderson‟s confession.

[56] In relation to the pad incident, Challise Gordon‟s evidence relating to Dobbs‟ exit from the pad is inconsistent with Dobbs. She said “Dave and Luke came back around the side, the same side that he went down.” She said they were talking. Anderson “stopped at the gate”, and at that stage said to Luke that “it wasn‟t a good time and that he‟d catch up...”. When Luke got into the car, Anderson had gone to the back of the house back down the drive. Dobbs‟ evidence was he ran out the door with no-one following him.

[57] There are also significant inconsistencies between the evidence of Luke and Warren Dobbs, and Gordon in respect of the later visit by Anderson to Warren Dobbs‟ home.

[58] There is inconsistency over timing. Gordon says Anderson visited in the afternoon within 48 hours of the pad shooting. Luke Dobbs says the visit occurs at

1pm the day after but later changes to 3.30pm. Warren Dobbs says the first visit is in the middle of the night with Anderson swearing and aggressive and in possession of a silver pistol. Warren says Anderson left and came back about an hour later. At that stage Luke was not present but arrived an hour later around 3-3.30 in the morning. Thus one says Anderson arrived in the middle of the night and the others say it was in the middle of the day.

[59] They are also inconsistent about who was there. Luke says that he, Gordon and Warren‟s partner Gwen was there. Warren was out, and Gwen left, so it was Luke, Gordon and Anderson. Warren returned home towards the end of the methamphetamine session that Luke and Anderson had. Luke says that Warren participated at the end of the session. Anderson left at around 1-1.30am.

[60] Gordon‟s version differs slightly. She says that “I was there, Luke was there,

[61] Warren, on the other hand, says it was just himself and his caregiver Tuahine in the first instance. Luke arrived approximately an hour after Anderson arrived the second time; and Warren waited until Anderson had settled, then went to bed and was asleep when Anderson left.

[62] Evidence about the gun Anderson brings to Warren Dobbs‟ home is also inconsistent. Luke says Anderson brought the gun back to the house after he visited the shop for bread and milk. Gordon, in her 18 August 2009 statement, suggests the gun is there from the start of the visit but now says she cannot remember. In court, and in his 26 May 2010 statement, Warren said that Anderson had a silver pistol when he first visited (with only Warren there) but when he left and came back he did not have the gun. In depositions, however, when the gun was first mentioned (triggering the recollections of Dobbs and Gordon), Warren said that the gun was present at the second visit.

[63] The Crown accepted that inconsistency between Luke Dobbs‟ and Gordon‟s evidence on the actual content of Anderson‟s confession required the discharge of Anderson on the count of murder of William Taikato. Gordon insisted - although equivocally in the end - that Anderson confessed “we shot him”, as well as “we got rid of him”. Dobbs, however, said Anderson only confessed “we got rid of him”, in terms of disposal, and that “Johnny shot him”. While, for present purposes, this is not a fatal inconsistency - Dobbs and Gordon both agreed that Anderson said “we got rid of him” - it is a further factor to be taken into account.

[65] In addition to the foregoing problems, there are wider reliability issues. Dobbs needed immunity for his own drug offending. In the 12 June 2010 police interview he says “I will tell the truth, you just keep your end of the bargain.” And he also acknowledges saying to the police “I will do whatever you think is the best for the case.”

[66] The evidence also demonstrates that Dobbs lied under oath but explains this by saying he did not want to incriminate himself. Gordon also admits to lying deliberately on several occasions, one of them under oath.

[67] They also stood to gain a substantial reward in the event of convictions being secured. These are not decisive matters on their own, but they add to the problems already outlined.

[68] There was also ample opportunity for the couple to collude. Gordon admits that she spoke to Dobbs about “leaving the bits out about the shots”. She said this was because they were very “tentative about ... committing to the case.” Gordon explains that “prior to coming forward we agreed that we wouldn‟t commit to a certain extent because of the effects it would have on our lives.” Gordon admits also (sarcastically) in evidence-in-chief that it is an “amazing coincidence” that both

Dobbs and her forget to mention the gun until after depositions (when Warren Dobbs first mentions it). Contrary to best practice, Dobbs and Gordon were interviewed separately by police, three months apart (May - August), in relation to the gun. Thus the evidence is that not only did Dobbs and Gordon have an opportunity to collude, they did collude in fact. Dobbs‟ emphatic denials of collusion, especially in light of Gordon‟s concessions, are yet another source of concern.

[69] There is also the fact that Dobbs is in a position to fabricate his evidence in relation to the pad because he is familiar with its layout.

[70] These wider reliability issues add a further level of concern to the inconsistencies already discussed.

(a) background evidence of tension in the relationship between Aitken and Anderson and Taikato;

(b) cellphone data analysis from 19 December 2007, showing no outward calls or texts from Taikato‟s phone after 7:33pm,10 and increased text traffic between Aitken and Anderson‟s cellphones after 8pm;

	(d)	Peter Smith‟s evidence of a conversation between himself and Aitken,
		where Aitken said that Taikato was gone and wasn‟t coming back, and that Taikato‟s associates were dangerous.
[73]	This	evidence does not overcome Dobbs‟ and Gordon‟s manifest

unreliability; it is not evidence itself of Aitken and Anderson‟s involvement in Taikato‟s murder or disposal of his body; and it does not sufficiently support Dobbs‟ and Gordon‟s version of events. The evidence of tension between the parties is mitigated by other evidence of their close relationship; the timing of the text traffic is six hours later than Dobbs‟ account of the shooting; and the intercepted communications and the conversation with Peter Smith do not contain any admissions of involvement.

[74] In the end there are so many holes and inconsistencies in Luke Dobbs‟ evidence, so many clear examples of him deliberately lying and so many good reasons for him to lie that there is no prospect that the jury could reach a safe guilty verdict in respect of the charge of murder against Aitken on his eye witness evidence alone. Gordon‟s evidence does not offer any substantial corroborative value, in light of its inconsistency, their admitted collusion, and her own reasons to lie.

[75] Similarly, the inconsistencies between the evidence of Warren and Luke Dobbs and Gordon in respect of Anderson‟s alleged visit to Warren Dobbs‟ home, when placed alongside the strong incentives for Luke Dobbs and Gordon to lie, and their opportunities for collusion, make the same conclusion in respect of the evidence against Anderson inevitable.

[76] In the alternative each counsel argued that the defendants should be discharged or the proceedings against each of them stayed because irregularities in the disclosure and content of relevant evidence against the accused now means that a fair trial is no longer possible.

[77] Prior to law changes in 2008 it would have been unnecessary for me to address these arguments having found that the accused should be discharged for want of sufficient reliable evidence anyway. However, since the enactment of ss 381A and 378A-378F of the Crimes Act 1961, a potentially important distinction may now exist between the effect of discharges under s 347 and stays granted in the court‟s inherent jurisdiction.

[78] As to stays, the Court of Appeal in Fox v Attorney-General cited and affirmed Lord Lowry‟s conclusion in R v Horseferry Road Magistrates Court ex-parte Bennett11 that:12

... a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its processes either

(1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or

(2) because it offends the court‟s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case.

... the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court‟s disapproval of official conduct.

[79] The bases for stay under the common law and discharge for abuse of process under s 347 are generally seen as co-extensive, with Fox v Attorney-General being cited in support of both paths to ending proceedings against an accused.13 In addition both a discharge and a stay can now be the subject of Crown appeal in accordance with s 381A of the Crimes Act 1961.

[80] However, only an acquitted person can be retried, inter alia on the basis of new and compelling evidence under s 378D of the Crimes Act. An acquitted person includes a person who has been discharged,14 but does not explicitly include an

_{accused for whom the court has ordered a stay. The definition
of acquittal is}

13 See for example, H (CA 427/09) v District Court at Auckland [2010] NZCA 178, 2010 [NZAR]

inclusive and it is possible that it will be deemed appropriate to read an accused the subject of a stay of proceedings into the definition. That question remains as yet unresolved and this is certainly not the case to resolve it given my decision to discharge the defendants for other reasons. In any event, it is at least possible that a stay has the potential practical effect of avoiding the s 378D exemption from autrefois acquit. So while in substance discharge for abuse of process and stay are virtually identical, the potential difference in their respective legal effects makes it necessary for me to proceed to consider this second ground accordingly.

[81] To address the issues that arise here, it is necessary to re-traverse the lengthy history of this proceeding.

2010, though it was accepted that there was a possibility it could run into a third week. The start had to be delayed by a week because an earlier trial of mine had run over into that week.

[83] As it turned out, on 15 February, the Crown disclosed a large quantity of new material – mostly informant communications. Some of this disclosure material was of direct advantage to the defence.

[84] On 22 February 2010 (the new start date), the Crown provided an additional extensive list of material, this time claiming that it was privileged. The trial was aborted and in its place I undertook an ex parte examination process to test document by document the Crown‟s claims in respect of the new information.

[85] The trial was adjourned and rescheduled to commence on 14 June 2010. As that date approached similar issues arose again. In the two weeks before the new commencement date the Crown disclosed more than 500 further pages of material including more than a 100 pages during the weekend prior to trial. A crucial statement and notebook entry was disclosed on the new commencement date itself.

[86] On 15 June, a day later, another crucial piece of evidence was disclosed for the first time. It related to a credible sighting of the victim well after the alleged date of his murder.

[87] At that point the defendants sought a stay of proceedings. They advanced three grounds:

(b) the prosecution‟s insistence on informant anonymity in relation to evidence pointing to alternative perpetrators was highly prejudicial; and

[88] In my Ruling (No. 7) of 17 June 2010, I rejected the application for stay.15 I said that, without further evidence, allegations of police misconduct were speculative. I did however admit to being troubled by the lack of a proper paper trail in respect of the interview of Hikuwai Lawson (at that stage a key prosecution witness who was subsequently not called). I expressed concern about the way Christopher Taylor a (now discredited) prosecution witness changed his story in a material respect following a police visit. But I did not see any evidence that directly implicated the police in malfeasance.

[89] The disclosure issues were more problematic. Not only was disclosure late, but there were suspicious gaps. Particularly relevant to the current application was the following comment in my ruling:16

Mr Sutcliffe was right to point out that there seemed a significant gap in documents relating to Hikuwai Lawson and the evolution of his evidence. That must be seen as a further, but again not decisive, factor [tending to support a stay].

[90] On the other hand, I found that concerns over informant anonymity could be met by an extended amicus brief.17 That process has since been completed.

The House of Lords in Horseferry said that stays should be granted carefully, sparingly and only for compelling reasons. In this case there is no single overwhelming factor that I could point to. Although I think that all factors when taken together come perilously close to the standard, I do not think on balance, that a stay can be justified. That is because there remains a suite of options capable of ensuring that a fair trial is ultimately obtained by these defendants. The most compelling unfairness issue in this case is the pressure of time created by late and ongoing disclosure in a trial that should have started today at the latest. That trial must now be adjourned a second time to allow the defence proper time to respond to recent disclosure. Since all defendants are in custody either facing other charges or pending sentencing, there can be no prejudice to them on account of this second round of delays insofar as custody is concerned. If they were not in custody for other reasons, I would have not hesitated to bail them today.

[93] Defence counsel each say that the disclosure and witness handling issues have continued unabated, despite my previous rulings and warnings, and that the prejudice is now so severe that a stay of proceedings or discharge are my only options.

[94] On behalf of Puata, Mr Sutcliffe focused on the late disclosure of the Shelley Lawson jobsheet to which I have already made reference. In preparation for this trial, and until a week after Lawson had concluded her evidence, counsel for Puata only had Detective Grey‟s handwritten notes of his 17 July 2008 interview with Lawson. The police knew a jobsheet existed but had assumed (it is said) that it was lost. When the defence indicated that they wanted to call Detective Sergeant Grey who conducted the interview, the Detective Sergeant made his own inquiries and

found the jobsheet. As I have said, it was finally disclosed a week after Lawson concluded her evidence.

[95] In addition to the reliability arguments I have already addressed (finding in favour of Puata), Mr Sutcliffe argued that Puata‟s defence was severely compromised because:

(a) the jobsheet was a stronger platform for the suggestion that Lawson never told Detective Sergeant Gray that Puata confessed to Taikato‟s murder. Although the proposition was put to Lawson in cross- examination (based on the handwritten notes of the interview) the defence was deprived of the opportunity of putting the more comprehensive jobsheet to her because it was not disclosed till after Lawson was cross-examined;

(b) the jobsheet also referred to several conversations Lawson had had with other people (who apparently knew of Puata‟s involvement) and the defence was deprived of the opportunity to put to Lawson that the implication of Puata came from those people rather than Lawson herself;

(c) other factual discrepancies between the jobsheet and Lawson‟s evidence in court, particularly about whether she saw a black handgun at all, could not be put to her in cross-examination.

[96] Mr Sutcliffe emphasised that Lawson‟s evidence was the entire Crown case against Puata. The late disclosure therefore went to the heart of an already very tenuous case. Lawson could not be recalled because the opportunity to construct the cross-examination in a way that properly tested the three points above had long since been lost.

[97] The Crown responded arguing that a fair trial was still possible, as the content of the jobsheet could be admitted through Detective Sergeant Gray, who as I earlier indicated, could still be called just to give this evidence. The Crown argued that this

was a better solution for Puata because it denied Lawson the opportunity to explain or fix, from the witness box, the flaws and inconsistencies arising from the jobsheet.

[98] Mr Kaye and Mr Snell joined in making generally common arguments in support of the applications by their respective clients.

[99] Mr Snell, on behalf of Anderson, focused on ongoing late disclosure and police handling of witnesses. He gave numerous examples of each and, as I indicated in the background to these applications, many of those examples are not new. The circumstances surrounding the handling of Carolyn Stewart‟s evidence probably exemplifies these problems at their highest. The circumstances are set out fully in my Ruling Nos. 13, 14 and 15.

[100] Stewart was to give evidence of Anderson‟s confession to murder. As the trial wore on and other confession witnesses fell away, Stewart‟s evidence took on increasing importance. The first problem with it was that evidence of a police search of her home and a two-hour interview following the search were not disclosed until mid trial. Drug related charges followed the search and Mr Snell argued that the drug charges must have been reduced from supply to mere possession in order to extract the inculpatory evidence in respect of Anderson.

[101] In my Ruling Nos. 13 and 14, I found that there was no evidence indicating this had happened. To accept Mr Snell‟s argument would be to exclude the evidence on the basis of speculation.

[102] During Stewart‟s evidence, she inadvertently disclosed that there had in fact been a further and later search and arrest. In the second incident Stewart was in a car that had been stopped and found to have hidden within it a significant quantity of white powder. The occupants were all arrested and faced the possibility of serious drug charges. The record of events following that second search did not account for a three hour period during which Stewart (under suspicion of serious drug offending) was in police custody – including that of Detective Sergeant Brazier, the second-in- charge of the Taikato investigation at the time.

[103] That these facts only come out accidentally in cross-examination with no accompanying police record provides a firm platform for the inference that Stewart offered evidence of the confession against Anderson to Detective Sergeant Brazier in exchange for leniency on the potential drugs charge. It was on that basis that I excluded Stewart‟s evidence in Ruling No. 15.

[104] Mr Snell argued that this was not an isolated incident but part of a pattern of disclosure and witness handling issues in this case. It had risen, he argued, to the level of impropriety. These problems provided a basis in their own right for Anderson‟s discharge, and in order to uphold his right to a fair trial.

[105] For his part Mr Kaye, on behalf of Aitken, emphasised the weakness of the Crown case, turning entirely on the credibility and reliability of lay witnesses. This meant that disclosure and police handling issues, when they arose in this case, were highly prejudicial to the defence. Attempts prior to the commencement of this trial to overcome the previous disclosure issues had failed. There was also the additional prejudice caused by delay with witnesses‟ recollections failing and with the accused becoming eligible for parole in relation to other charges for which they were serving prison terms. Mr Kaye argued that prejudice to the defence could only be overcome by stay or discharge.

[106] The Crown accepted that some failures of disclosure were serious and that there were genuine issues over witness handling. The Crown nonetheless argued that these did not provide grounds for discharge or stay. The Crown argued that any issues should have been and were dealt with by exclusion of evidence.

[107] For completeness, I note the issues that arose with the evidence of Pirimi Robinson that led first to the Crown making an application under s 22 of the Juries Act to discharge the jury and then, when the Crown dropped the application, the defence taking it up. The Crown accepted that there were concerns with the way the police handled the interview of Robinson during the trial. These seem to reflect similar concerns relating to the handling of Hikuwai Lawson and Christopher Taylor.

None of these witnesses was, in the event, called, but there is unquestionably a pattern here. And it appears to involve potentially serious impropriety on the part of a senior officer or officers.

[108] In addition to the foregoing, and after defence submissions were completed, the Crown informed me that another important jobsheet had not been disclosed. This jobsheet was dated 18 July 2008 and concerned an interview of Aaron Taikato by Detective Sergeant Gray. In it Aaron Taikato suggested that he had helped Puata bury William Taikato in the Kaimai Ranges. In the event late disclosure was not significant because Aaron Taikato was not called either, his information being found to be unreliable.

[109] In Puata‟s case the late disclosure of the Lawson jobsheet meant that he could not have received a fair trial this time. Its absence meant that the defence‟s best opportunity to displace the only evidence against him was irretrievably lost. I do not accept Mr Hollister-Jones‟ argument that it would have been better to put the jobsheet in through Detective Sergeant Gray. That path had its strategic advantages, but it was not the only or necessarily the best path. If, after carefully constructing his cross-examination of Lawson in reliance on the jobsheet, Mr Sutcliffe had achieved the concessions he wanted, that would have been devastating to the prosecution case. The jobsheet obviously made that outcome more possible. Failure to disclose the jobsheet until too late pre-empted Mr Sutcliffe‟s options in a way that was inherently unfair. His client would therefore have been entitled to a new trial at least, on the ground that it would have been an abuse of process to allow the matter to go to the jury when the defence case had been so unfairly crippled. Discharge would likely have followed, given that there had been two aborted trials previously, both due to disclosure issues.

[110] The situation for Aitken and Anderson was not so clear cut. Although there were problems with the way Dobbs and Gordon were handled, none of them were so prejudicial or problematic as to make the trial procedurally unfair. In the end theirs was the only evidence against Aitken and Anderson but the primary problem with their evidence was its deeply flawed content, not the process by which it was obtained or disclosed. There were other quite serious procedural problems such as

the Stewart evidence, but I am satisfied that was properly dealt with by firm direction to the jury that her evidence must be disregarded. None of the other witnesses that presented disclosure or handling problems were called in the end so their issues became academic. As I have said, Aitken and Anderson were entitled to discharge for other reasons but not due to abuse of process.

[111] I conclude therefore that it would not have been appropriate to discharge Aitken and Anderson on the basis that it would be an abuse of process to continue. I am satisfied that the correct approach in their cases was to exclude evidence so tainted by late disclosure or impropriety as to make the admission of the evidence unfair. In the case of Stewart, where this option was no longer available, I am satisfied a direction to the jury to disregard it was sufficient.

[112] In the end, however, I do not think that a stay can be justified in the case of any of the accused. As the authorities make clear, stay is not a punitive remedy but a means of safeguarding the fair trial right, and it is very much a remedy of absolute last resort. If a stay is within the definition of acquittal then nothing is gained by granting one, the defendants having already been acquitted through discharge. If on the other hand, a stay is not an acquittal, I would need to be satisfied that no future trial could be fair. Although I can see there will be cases where it is possible to reach this view – for example, where crucial exculpatory evidence has been destroyed – that is certainly not the position here. It may be that evidence found in the future will render irrelevant, or at least less important, the tainted evidence in the present trial. Accordingly, even in Puata‟s case, I cannot conclude that such a future trial could never be fair. That question will be for the Court of Appeal to consider, under s 378D should the need arise.

High Court of New Zealand Decisions

R v Aitken HC Rotorua CRI-2008-070-6480 [2011] NZHC 1554 (13 June 2011)