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R v Smith [2018] NZHC 1794 (19 July 2018)

Last Updated: 2 April 2019

JUDGMENT OF NATION J

[1] The defendant, Mr Smith, is to face a retrial on a charge of kidnapping. The Crown has given notice to Mr Smith that it does not intend to call a witness who gave evidence at Mr Smith’s first trial. Pursuant to s 113(3) Criminal Procedure Act 2011, Mr Smith seeks an order requiring the Crown to call the witness at the retrial.

[2] The Crown case at the retrial will be that the complainant and Mr Smith had been in an on/off relationship for approximately 15 years. In September 2016, the

R v SMITH [2018] NZHC 1794 [19 July 2018]

complainant ended the relationship. Mr Smith had difficulty accepting the relationship was over.

[3] On 20 October 2016, Mr Smith collected the complainant from her work. He took her to the country, some 40 minutes west of Timaru, where they remained for around eight hours.

[4] On 31 October 2016, the complainant obtained a temporary protection order against Mr Smith. It was served on 2 November 2016.

[5] At about 5.30 am on 30 November 2016, the complainant left her home address on Ayr Street in Timaru and walked to her van which was parked on the street outside her house. Mr Smith was waiting for her with his face covered with camouflage paint. He grabbed her, threw her into the back of the van and remained with her in the rear of the vehicle. Mr Smith held the complainant’s head down as the vehicle left the scene. The vehicle was being driven by an unidentified driver. They went to a location under a bridge in a rural setting west of Timaru. The unknown person departed, leaving Mr Smith and the victim together. At about 4.00 am on 1 December 2016, the complainant escaped from Mr Smith as he slept. She was taken to the Police station. Mr Smith was located inside the victim’s van under the bridge. He was asleep and still had camouflage paint on his face.

[6] Mr Smith was originally charged with kidnapping, breach of protection order, possession of a pipe, possession of a class A controlled drug (methamphetamine), unlawful possession of a firearm, male assaults female, indecent act with intent to insult or offend, two charges of sexual violation by unlawful sexual connection, two charges of indecent assault, and threatening to kill.

[7] On 19 March 2018, Mr Smith pleaded guilty at the start of his trial to the charge of unlawful possession of a firearm. He was found guilty of possession of a pipe and possession of a class A controlled drug. The jury were unable to reach a verdict on the charge of kidnapping and acquitted Mr Smith on all other charges.
[8] At the earlier trial, the Crown called Quentin Johnson as a witness. He gave evidence that, around 8.00 pm on 29 November 2016, he was delivering brochures with his daughter on Ayr Street in Timaru. He saw a van on Ayr Street. He could see a person stretched out across the van. The person’s long legs caught his attention. He could see into the passenger side of the van because the sliding door of the van was slid back. He distinctly remembered seeing “really long legs” that appeared to be of a person two metres tall. The person was wearing stubby shorts or boxers. He did not think it was a woman. Under cross-examination from Mr Jackson, Mr Johnson confirmed he had made a statement to the Police on 1 December 2016, and had drawn diagrams associated with that. On those diagrams, he had referred in writing to the person inside the van as a man.

[9] For the Crown, Mr McRae says they do not now propose to call Mr Johnson as a witness because his evidence does not assist in proving the elements of the charge. If the evidence is considered relevant (upon an extended definition of that term), the Crown says the evidence is vague, uncertain and not helpful.

[10] For Mr Smith, Mr Jackson says the defence at the earlier trial was that Mr Smith was or may have been in the van the previous evening, but he was there with the complainant’s consent and knowledge, and that he was in the van when she went to it in the morning. The defence case squarely challenges the complainant’s version of events, as well as whether she was forced into the van and whether there was a third-party driver or she simply drove the van away herself. Mr Jackson says that one Crown witness at the earlier trial thought she drove the van away herself.

[11] It is apparent from the record of the first trial that no evidence was called for the defence. In his summing up, the trial Judge said Mr Jackson had suggested that, on the morning of 30 November 2016, there may have simply been an argument between Mr Smith and the complainant, or something similar, and that the complainant may have initially not wanted to go in the van but she did finally do so, although reluctantly. Gendall J referred to Mr Jackson’s submission that, on the previous evening, Mr Johnson had seen what he thought was a tall man in the complainant’s van outside her address. Mr Jackson had offered a possible explanation that Mr Smith may have stayed the night in the complainant’s van and had speculated that the next
morning Mr Smith and the complainant had an argument which caused a commotion on the footpath, that she jumped in the driver’s seat of the van and they departed. Gendall J said there was no evidence before the Court to directly support this but told the jury that, because of the onus of proof which was on the Crown, what Mr Jackson had advanced was a simple possibility which, it was being submitted, could throw doubt on the complainant’s version of events that morning.

[12] For Mr Smith, Mr Jackson argues:

(a) Mr Johnson’s evidence as to the possible presence of Mr Smith in the van the night before is important relevant evidence as part of the narrative;

(b) the Crown’s decision not to call him is tactical and made to take advantage of what they have learnt as to what the defence advanced at the earlier trial;

(c) there would be no prejudice to the Crown in adducing the evidence. There would be potential prejudice to Mr Smith in that, if Mr Johnson is not called, the defence will have to call him and will thereby put the Crown in a position to cross-examine the witness, allowing the Crown to challenge evidence it has not previously challenged;

(d) there is no basis for suggesting the evidence of Mr Johnson would not be credible or reliable; and

(e) prosecutorial discretion is fettered by a duty to act fairly towards the defendant. It would not be fair to put the defendant in the position of having to call a witness who the Crown might then be able to cross- examine when previously they were willing to put his evidence before the Court without having the opportunity to challenge it.

Principles to be applied

[13] Mr McRae comprehensively set out the principles which guide the Court on s 113 applications. Relevant to the current situation, these include:

• (a) The Court will tend to be restrained in the exercise of its discretion to order the Crown to produce witnesses. Applications granted pursuant to this section will be rare and infrequent.¹
• (b) The touchstone under the section is the interests of justice, which includes, but is not limited to, considerations of fairness to the defence.²

(c) It is the prosecutor’s responsibility to decide whether to call a person as a witness subject to the duty to act fairly towards the defendant. That involves putting the Crown case fairly and fully including calling all credible witnesses who can give admissible evidence as to the matters in issue. This includes evidence that is essential to the unfolding of the Crown narrative.³
(d) The Court will not interfere with the Crown’s discretion unless it can be demonstrated that the prosecutor has been influenced by some improper or oblique motive.⁴ That does not mean that the Court will only interfere if the prosecutor has acted out of malice, but rather that the prosecutor must call his or her mind to the overall duty of fairness and not be motivated by a consideration not relevant to the task.⁵
(e) In considering a challenge to the prosecutor’s decision, the Court should keep in mind the distinction between the respective functions of the prosecutor and the Judge. The Judge’s function is to hold the balance between the contending parties without taking part in their dispute.⁶
(f) In many cases it will be sufficient for the Crown to discharge its duty by offering details of the witness to the defence so that the defence may call the witness.⁷

¹ R v Wilson [1997] 2 NZLR 500 (HC) at 505 and 510-511.

² R v Wilson, above n 1, at 508.

³ R v Wilson, above n 1, at 508, citing Senerviratne v R [1936] 3 All ER 36 (PC).

⁴ McGinty v Attorney-General [2001] NZAR 449 (HC) at [18(b)].

5. R v Wilson, above n 1, at 506 and 509, citing Adel Muhammed El Dabbah v Attorney-General for Palestine [1944] AC 156 (PC).

⁶ R v Wilson, above n 1, at 507.

⁷ R v Wilson, above n 1, at 506.

[14] In addressing me further on these submissions, Mr McRae accepted there was little uncertainty as to what Mr Johnson would say about what he observed. He said there was however uncertainty, in the context of this case, as to whether the legs of the person lying across the front of the van, as observed by Mr Johnson, were those of a man. In this regard, he referred to the complainant not being petite and being a truck driver.

[15] Mr McRae’s submissions as to that explained why the Crown may see an advantage in being able to cross-examine this witness. The Crown may expect that, through cross-examination, it may be better able to highlight the limited extent of Mr Johnson’s observations and the potential for him to have been mistaken in thinking what he saw was a view of part of a man, rather than the complainant.

Analysis

[16] The evidence of Mr Johnson is not required to prove an essential element of the charge. It is not an essential part of the narrative on the Crown case.

[17] This is not a situation where there is some inherent vagueness or uncertainty about the evidence Mr Johnson will give. He is clear that, on the evening before the alleged kidnapping, he saw the legs of what he thought was a tall man lying across the front of the van. He did not see the person’s face but, from what he saw of the legs and the shorts the person was wearing, he thought it was a man. The Crown cannot justify their decision not to call this witness on the basis there is some uncertainty as to the evidence he would give. However, because there is unlikely to be vagueness or uncertainty as to what Mr Johnson saw, it cannot be said the defence would be prejudiced through having to call him as a witness if they decide to do so.

[18] The witness is available to the defence to give evidence. The Crown has ensured he will be available by summonsing him to give evidence. The defence has the benefit of his original statement to the Police, the diagrams he drew for the Police and the notes he made on them, and the transcript of his evidence at trial.

[19] There are advantages and disadvantages for both the Crown and the defence in knowing how the earlier trial proceeded and all that was said during it. There is
nothing inherently unfair in the Crown or the defence deciding to reshape their case in light of what happened in the earlier trial.

[20] In his submissions, Mr Jackson acknowledged that, had Mr Johnson not been called by the Crown in the same case, his potential evidence would have simply been provided to the Police through disclosure of his statement and relevant notes, and the defence would be in a position to call him. In the particular circumstances of this case, there is no compelling reason why that should not also be the situation on the retrial, especially as the defence has the benefit of knowing what he has already said in evidence at a trial.

[21] The Court has to be cautious in interfering with a prosecutor’s discretion. There can be no suggestion in this case that the prosecutor has been influenced by some improper or oblique motive.

Conclusion

[22] In all the circumstances of this case, I do not consider this to be a situation where the Crown should be compelled to call Mr Johnson as a witness. Mr Smith’s application is declined.

Solicitors:

Gresson Dorman & Co., Timaru Quentin Hix Legal Ltd, Timaru.