Brenton Tarrant posts on 8chan, shoots up Mosque killing 49 muslims in New Zealand, livestreams from GoPro -

  • The End of Proving Grounds: (Thread) (Update) (Last Call in PG)
    I've enabled GIF avatars across the site again. Don't make me regret this.

Take away the Guns, Censor the Video, Throw people in Jail for Having the Video, or do it all?

  • Just take the guns, it'll work out fine.

    Votes: 56 6.3%
  • Doesn't matter, it's Trump's Fault.

    Votes: 218 24.4%
  • Just ban the video, it's totally doable.

    Votes: 30 3.4%
  • DO EVERYTHING!

    Votes: 179 20.0%
  • Make Null turn us over, that'll make us safe.

    Votes: 410 45.9%

  • Total voters
    893

Furina

Centerfold
kiwifarms.net
The funniest part is that he'll sit in a jail cell, or a psych ward for say... twenty years? Fifteen with probation and he'll be a free man. They don't have the death penalty, and this country is too cucked to even do a full sentence.
I reckon he'll get a harsher sentence in a less comfortable place than Anders Brevik got, but yeah, he's hardly going to be thrown into a deep, dark pit and left to rot.
 

mr.moon1488

kiwifarms.net
I’m honestly surprised he wasn’t given the death sentence, taking place in New Zealand and all
They don't have it, and as dumb as their government is, it's not dumb enough to change the rule just for him. That would likely lead to an overthrow of their government.
 

nonperson

I am imaginary
kiwifarms.net
They initially charged him on one count of murder to get the ball rolling. You'd think it's an easy thing to do when you've got 50 bodies to choose from, yet they managed to accuse him of killing someone that was still alive.

This latest charge is, no doubt, the end result of an arduous investigation.
 

Cynically Insane

They must have taken my marbles away
kiwifarms.net
I looked into the right to a prompt trial in NZ and there appears to be no set standard. Essentially, a judge, any judge who the case lands before, makes the decision to stay proceedings based on the circumstances. So essentially, although presumed innocent, the system can take an indefinite amount of time before proceeding to trial. Now in Tarrant's case we can see how keeping him locked up in the mean time is probably a good idea. But what about those poor saps who are held without bail for accessing/sharing the video or manifesto? They are incarcerated, presumed innocent and not a danger.

This article, though cuckish, explains the basics.

The vicious targeting of the Muslim community in the Christchurch terror attacks has already had swift consequences.

Gun law reform is underway, as is an investigation of laws relating to crimes motivated by bigotry. The government has also announced a Royal Commission of Inquiry into why the attack was not identified and prevented.

At the centre of these various waves is the trial of the alleged perpetrator, accused (to date) of 50 murders and 39 attempted murders. The identities of the attempted murder victims are suppressed at the moment.

Right to fair trial
The accused, who The Conversation has chosen not to name, remains in custody at New Zealand’s highest security prison in Auckland. He has a right to a fair trial based on a presumption of innocence. The trial will be before a High Court judge and a jury of 12, who have to make decisions based on the evidence presented and found admissible in law. Discussions of the merits of the charges in the media or by politicians are to be avoided because of the risk of polluting the court verdict.

During his first court appearance at the Christchurch District Court on the day after the attacks, the accused was named. New Zealand allows defendants to have their names suppressed in various circumstances, but this accused did not seek that protection. Whether or not to name the accused is now a choice of each journalist or media organisation.

Read more: Christchurch attacks provide a new ethics lesson for professional media

New Zealand also allows photography and recording in court, subject to judicial control. A video of the accused with his face blurred was released from the first hearing, but Justice Cameron Mander declined applications to film and record the second hearing at the High Court in Christchurch last week.

Murder charges carry life sentence
At the second, procedural hearing, the accused did not appear in person but via an audio-visual link from prison. Until then, it was thought he would represent himself, but he has now hired two lawyers.

The main order made by Justice Mander was a request for medical reports under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Such reports are designed to investigate whether a defendant might have been insane at the time of the offending or whether he has a current mental disorder that prevents him following a trial. They are commonly ordered for serious charges.

The prosecution may consider additional charges. The most obvious would be breaches of the Arms Act 1983 or the Terrorism Suppression Act 2002. Since murder charges carry a life sentence, the prosecution will no doubt weigh up whether additional charges add anything of value.

A terrorism charge, which also carries a life sentence, would require proof of motivation of the accused, which would allow evidence of ideology before the court. Murder and attempted murder charges focus on the narrower question of an intention to kill, and the only evidence allowed would be relevant to the identification of the accused as the perpetrator and his intention, not his motivation.

The only defence to a murder charge is self-defence from an ongoing attack by others.

Speedy trial unlikely
Before the next hearing, expected in June, the prosecution will be compiling evidence and disclosing that to the defence lawyers. This allows them to consider arguing about the admissibility or otherwise of evidence, which may affect when they can advise on the plea. In a complex case, several pre-trial issues are likely to arise and require a judicial ruling.

The length of the trial will depend on whether any charges are contested, how many facts are accepted by both the prosecution and defence, and the number of witnesses that have to be called to give evidence and be cross examined.

While a speedy trial is an accepted component of a fair trial, that is not a regular feature for trials of any complexity. Even if this case is given priority, if it involves trial (which it will unless there is a guilty plea to the charges brought), it is likely to be many months before it happens.

Trial open to public
Another question is where the trial should take place. So far, the courts in Christchurch have been involved, but cases have been transferred in the past because of difficulties of finding a local jury without a link to someone involved in the case.

The trial will be public. Judges have powers to require some evidence be heard without the public present, but media are allowed in those hearings unless there is a national security issue. Judges can also impose controls on the reporting of evidence, including to protect the interests of victims.

One of several verdicts may follow in any trial. An acquittal follows if there is inadequate evidence of guilt beyond a reasonable doubt. If the medical evidence allows it, a verdict of not guilty by reason of insanity may follow. Similarly, if there is evidence that shows a defendant is not fit to stand trial, the court then considers whether he committed the acts.

The fourth possible verdict, which is proper only if the evidence satisfies the jury beyond a reasonable doubt that the accused committed the offence with the necessary intent, is a verdict of guilty. Such a verdict on a murder charge invariably leads to a sentence of life imprisonment. A judge can order that the sentence has to be served without the prospect of parole.

Prisoners from overseas, including from Australia, usually serve their sentence and are deported at the end of it. New Zealand does not have standing arrangements for prisoners to be transferred to their country of origin to serve their sentence (nor for New Zealanders to return to serve their overseas sentence). But governments can make other arrangements in special circumstances.

Here is an example of a judgement on an application to dismiss based on delay. The important bit, “the right is to trial without undue delay; it is not a right not to be tried after undue delay”.
IN THE DISTRICT COURT AT QUEENSTOWN CRI-2014-059-000426 [2016] NZDC 10548 NEW ZEALAND POLICE Prosecutor v CRAIG ROBERT BRADSHAW Defendant(s) Hearing: 10 June 2016 (at Invercargill) Appearances: Sergeant I Collin for the Prosecutor, by AVL L S Collins for the Defendant, by AVL Judgment: 10 June 2016 Reasons: 13 June 2016 JUDGMENT OF JUDGE B A FARNAN [REASONS - S 147 APPLICATION FOR DISMISSAL] [1] The defendant, Craig Robert Bradshaw, faces one charge pursuant to s 193 of the Crimes Act 1961 for assault with intent to injure. The complainant is Gareth John Johnson. The charge relates to an incident in the early hours of 13 June 2014 outside a bar in Queenstown. [2] The defendant is also charged with failing to answer bail pursuant to s 38(a) of the Bail Act 2000. [3] At the conclusion of the hearing on 10 June 2016, I indicated that the application was declined, and that I would release my reasons later, which I now do. Current application [4] The defendant has made an application pursuant to s 147 of the Criminal Procedure Act 2011 to have the charges laid against him dismissed. [5] The defence submits there has been undue delay in reaching trial and that the charges should be dismissed because a continuation of the prosecution would be an abuse of process. [6] The prosecution oppose the defence application and submit: (a) There has not been any prosecutorial misconduct or other abuse of process; (b) All relevant material has been disclosed; (c) The defendant has not suffered any prejudice; (d) It is in the interests of justice that the defendant stand trial on the charge of assault. (e) Further, the prosecution submit that if the Court considers there has been undue delay, that a stay of proceedings is a remedy of last resort which is not appropriate in this case. The law [7] The Supreme Court in Wilson v R [2015] NZSC 189 has recently restated the principles relating to stays of proceedings which likewise apply to applications for dismissal under s 147 on the basis of abuse of process. The Court at [39] and [40] of the decision states: In relation to criminal proceedings, a stay may be granted where there is a state of misconduct that will: (a) Prejudice the fairness of the defendant’s trial (“the first category”); or (b) Undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed (“the second category”). It follows that the analysis is not backward-looking, in the sense of focusing on the misconduct, but rather forward-looking, in that it relates to the impact of the misconduct on either the fairness of the proposed criminal trial or the integrity of the justice process if the trial proceeds. [8] In an earlier case in 2015, CT v R [2015] 1 NZLR 465, the Supreme Court has also restated factors which can be taken into account relating to a stay based on the grounds of delay. At [32] the Court per William Young J stated: We consider that the approach expressed in R v O remains appropriate subject to the supplementation provided above in [27] to [31]. These principles are broadly consistent with the approaches taken in other similar jurisdictions … we summarise these as follows: (a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial. (b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime. (c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial Judge must take to mitigate the risk of prejudice, there cannot be a fair trial. (d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather, what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay. (e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminancy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case. (f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay. (g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be. Did delay and prejudice preclude a fair trial in this case? [9] The issue of post-charge delay as a form of abuse of process has, to a significant extent, been overtaken by the possibility of a remedy for breach of the right to a prompt trial under s 25(b) of the New Zealand Bill of Rights Act 1990 (BORA). [10] Section 25 relates to “minimum standards of criminal procedure” and ss (b) states that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be tried without undue delay. [11] This right is primarily concerned with the lapse of time between the charge (which, in the context of a Bill of Rights, will generally refer to the first official accusation) and the trial (which extends to appeal processes): Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 420. [12] The general approach to a determination of a breach of s 25(b) is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the right is designed to protect, against factors which inevitably lead to delay or are otherwise the cause of delay. [13] While Blanchard J stated in Martin v Tauranga District Court 1 NZLR 491 (HC) at p 52 that when considering an application for a stay of proceedings based on s 25(b) of BORA: The Court must concentrate upon the rights of the accused, who is presumed to be innocent of the crime charges. … [14] The Judge also identified that subject to the paramount interest of the rights of the accused, there is also a community interest in bringing to trial those who have been charged with crimes and some account might also be taken of the legitimate desire of society to see that persons accused of crimes did not avoid facing trial merely because institutional delays had occurred. [15] Available remedies for a breach of s 25(b) include a stay (if the delay has been egregious) a reduction in sentence, setting aside of the conviction in an extreme case, or monetary compensation in the event of an acquittal: see Williams v R [2009] NZSC 41 at [38]. Authorities [16] Williams v R (supra) is the leading authority on the approach to breaches of s 25(b) of BORA. On the step of determining whether there has been undue delay, the Court said (at [12]) that this is “a function of time, cause and circumstances. Undue in this context is synonymous with unjustifiable”. The Court went on to say: …whether delay is attributable to the Courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted. [17] The Court held at [18] that: The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory, or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. … The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay. (Bold emphasis added.) [18] In Zhang v Auckland District Court [2012] NZHC 385 there was a delay from arrest to trial date of two and a half years. The defendant applied unsuccessfully for a judicial review of the District Court’s decision dismissing his application for a stay of proceedings based on s 25(b) NZBORA grounds. An initial trial date was set within about 18 months of the defendant’s first appearance but his counsel applied to adjourn the trial, indicating that he wished to call a forensic document examiner who had not previously been instructed. Because of pressures in the District Court, subsequent standby dates in November 2010 and May 2011 were unable to proceed and a further trial date was fixed for September 2011, being two and half years from the defendant’s first appearance. [19] The defendant in Zhang alleged that as a result of the delay, a number of witnesses whom he could have called left New Zealand permanently and were unavailable to him. The District Court Judge rejected this as three of those persons had left prior to committal and another would have been unavailable for the September 2010 trial, but for the adjournment of the defendant’s application. The Judge found that notwithstanding a “reasonably substantial delay”, the defendant’s right to a fair trial had not been prejudiced. A stay was deemed inappropriate and unnecessary when a discount could be applied to a sentence of imprisonment, if the defendant was convicted. [20] Of particular interest, MacKenzie J stated at [15]: The first trial date was September 2010. That was about 18 months after arrest. That trial date was approximately one year after depositions. The time taken to reach that point was within bounds, so that there was, at that stage, no breach of the s 25(b) right. [21] In R v I [1993] DCR 1789 7/9/1992 the accused was charged with a series of indecencies upon a young girl. There was not only a delay in the complaint to the police, but the case had been before the Court without coming to trial for 22 months. In that case, the defendant argued there had been too much delay to warrant the trial proceeding and applied to dismiss the proceedings for abuse of process and breach of Bill of Rights guarantee to a speedy trial. Judge Stayanand held that the District Court had the power to stop cases where it was established that delay would render it unfair to, or impossible for, the accused to defence himself. In that case, there was no evidence that the defendant had been thwarted concerning his projected defence (bold emphasis added) and no evidence that the complainant had been subject to external influence. The amount of time before that case came to trial was well beyond the norm, but the Court was unable to find any wilful delay or non-feasance which might justify stopping of the trial. His Honour said the delay was unfortunately but not an extreme case and the defendant was unable to show that he would suffer prejudice in the conduct of his defence. Analysis and application [22] Applying the Williams principles to the present case requires a three step process: (1) Identify the relevant period of delay; (2) Determine whether the delay is undue having regard to the explanation (causes) for it and any prejudice to the accused arising from the delay; (3) If there is undue delay, consider the appropriate response. Factual background [23] The defendant was charged on 16 June 2014. [24] The matter was first called on 17 May 2015. The Court file records that a Judge alone trial was first scheduled for 14 October 2015. [25] There was over 16 months between charging and the first scheduled trial date. This is the first period of delay. No explanation was offered by the prosecutor as to whether this fell within the normal times for a Judge alone trial to take place, however it would not seem that the delay at that point was undue, particularly for a court such as Queenstown which does not sit on a daily basis. [26] While the defence submit the first case review hearing scheduled for 28 July was adjourned due to late disclosure provided by police to original counsel, this brief delay appears to have been overcome by the time a CMM was signed by original counsel dated 12 August 2014 in which it was noted that the matter was ready to proceed to Judge alone trial. That, in my view, cannot be seen as a factor contributing to any delay. [27] The case then remained on a nominal date until May 2015 when it was scheduled for a Judge alone trial for 14 October 2015. [28] It then appears that a notice of application to transfer the case on the basis of an intimated guilty plea was filed by the defendant’s former counsel, dated 8 October 2015. It also seems there was no appearance in the Wellington District Court by counsel or Mr Bradshaw after the matter was transferred there from Queenstown pursuant to the notice of application to transfer the case. Thus, a second period of delay began on 8 October 2015 and a warrant had been issued for the defendant’s arrest due to his non-appearance. [29] The defendant claims that he is not responsible for this (second) delay and that it was the fault of previous counsel. The defendant deposes in his affidavit that he moved to Auckland in August 2014 and says that he was never aware of the scheduled 14 October 2015 trial date in Queenstown. He deposes that he was unaware of any change in his Court proceedings until the first week of December 2015 when the police arrived at his home to inform him there was a warrant for his arrest due to his failure to attend his Wellington Court date. Consequently the defendant appeared in the Auckland District Court in December 2015 to resolve matters and his case was transferred back to Queenstown for a case review hearing on 11 January 2016. [30] The defendant instructed new counsel and the case review hearing was adjourned, being unnecessary, and the defendant’s case was listed on a nominal date to await trial. [31] On 19 April 2016 the defendant deposes he was advised by his lawyer that his Judge alone trial was scheduled for 17 May 2016. The defendant made arrangements to attend. [32] Unfortunately, it would appear that a Family Court hearing was also scheduled for 17 May 2016, the situation effectively requiring the defendant to attend on a standby basis due to the double booking. The trial was unable to proceed due to the other Family Court case proceeding. [33] The prosecution submit they had been in communication with the defendant’s previous counsel, Mr Fulton, in the weeks leading up to what had been the first scheduled trial on 14 October 2015, and that in the week prior to trial, Mr Fulton confirmed there had been a change of plea and requested a transfer of the file to Wellington. The police at that time had no objection to the application and a date in Wellington was allocated. [34] The defendant’s previous counsel, Mr Fulton, swore an affidavit in which he deposes that he wrote to the defendant in July 2015, that letter being sent by conventional mail. He says the defendant contacted him in September 2015. Mr Fulton says he was frustrated with the defendant (for reasons that are not entirely clear but may have been attributed to the defendant’s delay in contacting him). [35] In any event, Mr Fulton contacted the defendant by email on 30 September 2015. That email shows that Mr Fulton informed the defendant of the 14 October 2015 fixture date, and asked whether the defendant had received his [Mr Fulton’s] letter and which email address the communication should go to, because it was not work related and presumably he did not wish to communicate with the defendant via his work email. [36] Mr Fulton deposes that on 1 October 2015 the defendant contacted him indicating that he was in Wellington the next day and asked whether they could meet. Mr Fulton deposes that he and the defendant met and discussed various options, and he consequently emailed the Queenstown Court and asked whether the matter could be transferred Wellington for plea and sentencing. [37] Mr Fulton deposed that he emailed the defendant to advise that he was not required in Queenstown and that the next Court date was 23 October 2015 in Wellington. The emails show that the defendant replied the same day at 3.53 pm saying, “Ok great so I don’t have to come to Wellington either?” Mr Fulton has not attached his reply, if any, to that question by the defendant. Nor does Mr Fulton’s affidavit state how he replied to the defendant. His affidavit merely states the defendant could not come. Mr Fulton states at paragraph [40] of his affidavit, “…I suspect that I was able to have a warrant held over until Bradshaw could travel”. Although not clear, it is presumed that that was a reference by Mr Fulton to the defendant’s lack of appearance in Wellington on 23 October 2015. Then Mr Fulton emailed the defendant on 13 November 2015 and said, “We need to get the change of plea recorded.” Again, the defendant’s reply, which would verify whether or not the defendant wished (by then) to change his plea, is not attached to Mr Fulton’s affidavit. However, Mr Fulton deposes that he talked to the defendant when the defendant appeared to cancel the warrant in person in Auckland, and he advised the defendant to engage counsel in Auckland. [38] While there appears to be some confusion in Mr Fulton’s evidence as to whether the defendant directly responded to Mr Fulton’s email regarding the comment “we need to get the plea recorded”, it is hard to conclude anything other than the fact that it was discussed between Mr Fulton and the defendant, otherwise Mr Fulton’s email regarding a change of plea would make no sense. [39] On that basis, I refer to the evidence of Mr Fulton and find that the defendant had discussed a change of plea and transfer from Queenstown with Mr Fulton, who then communicated that to police prosecutions in Queenstown. [40] Finally, the defendant submits he is prejudiced by the time delay of 23 months and that further delay would be an abuse of process. The delay from charging to the first scheduled Judge alone trial was 16 months. The delay from October 2015 to May 2016 is seven months. The total delay is nearly 24 months. Is the delay undue? [41] In order to establish that the length of the delay is undue, the defendant must be able to point to some exceptional delay. [42] The Court of Appeal in R v Grant CA471/95, 29 May 1996, held that a 27 month delay between the first Court appearance and the trial was not undue, as the accused had not suffered any particular prejudice. The cause of the delay could not be attributed to any particular party. [43] In M (CA427/11) v R [2012] NZCA 270, the Court discounted 12 months in total for delays caused by change in counsel, noting at [90] that Mr M’s “expectation of the services that could be provided by counsel were unrealistic”. [44] In Mazidabadi v R [2012] NZCA 315, the delay between being charged with arson in 1999 and conviction following trial in 2011 was mostly attributable to the accused’s own actions, namely failing to appear for trial in July 2000, and subsequently being outside New Zealand for over six years because of his deportation as an overstayer. [45] In this case, from early October 2015 the delay appears to be attributable to the poor communication between the defendant and Mr Fulton. None of that delay can be attributable to either the police prosecution or the Court. [46] The somewhat confused versions of events conveyed by the defendant and Mr Fulton to this Court do not aid in verifying what the defendant actually instructed his counsel to do, but indicate, as I have discussed above, that there was a discussion regarding a change of plea. Certainly, I accept that communication between them was poor. [47] While it is clear that Mr Fulton stated he and the defendant discussed various options, I accept it is not clear from this affidavit whether the defendant instructed him directly to enter a guilty plea. However, on the other hand, there is nothing in any of the email communication from the defendant to Mr Fulton that would indicate his unhappiness as to what had been proposed regarding a transfer of the proceedings. It is clear, however, as I have already discussed above, that the defendant was sent an email from Mr Fulton telling him “we need to get the change of plea recorded”. From the Court’s perspective, it was clearly open to the defendant at that stage to communicate directly with his then counsel to clear up any confusion that may have existed in his mind as to what his plea was intended to be in respect of the [then] charge he was facing. [48] This is a situation where it may be that the defendant never intended to enter a guilty plea; that is certainly his position now. It may be that his counsel was remiss in keeping the defendant fully informed about the matter. Equally, it is apparent that his counsel emailed him information from time to time. However, it is largely immaterial who was at fault between the defendant and Mr Fulton. Significantly, it was not the police or the Court system that was at fault in that regard. The Court had made a Judge alone trial date available in October 2015, at which point there can be no question of delay. That was a Court date within 16 months of the defendant’s first appearance. Even if there had been some delay in initial disclosure, that position had clearly been remedied within a short space of time and does not appear to have affected a subsequent availability of a Judge alone trial date in October 2015. [49] Accordingly, from this Court’s perspective, the defendant and/or counsel, or a combination thereof, resulted in the October 2015 Judge alone trial date not being utilised and the subsequent trial date for 17 May 2016 having to be vacated with a new date to be set. [50] While the subsequent (17 May 2016) delay (the second delay) was largely institutional due to a Court scheduling mixup, this had been exacerbated by the conduct of the defendant and Mr Fulton in managing their approach to the case. Their contribution to the delays are still relevant in assessing whether the delay overall is undue and whether it would be fair for the proceedings to be stayed through no fault of the prosecution, especially as in this case it would appear the Court then prioritised the defendant’s case for the next earliest hearing date (now scheduled for 14 June 2016) [51] Whether the delay was undue depends on the validity of the explanations for the delay. The initial 16 months between first appearance and the October 2015 Judge alone trial date was unfortunate, but well within the timeframe for scheduled cases, and District Courts such as Queenstown are not scheduled to sit on a daily or weekly basis. The unfortunate reality is that the timeframes of this kind are not uncommon in today’s system. [52] However, even if I were to determine that the 16 month delay at that point was longer than usual, it would not, in my view, be able to be described as an egregious delay. Further, even if I were to determine the defendant’s s 25(b) right has been breached, albeit unintentionally, by the delay, it would not justify a stay. There is often a fine balance between accommodating institutional resource constraints and protecting a defendant’s rights under BORA. [53] The defence have not, in this case, been able to submit that but for the delay, there would have been identifiable evidence that would have assisted the defendant, other than the prosecution witnesses having made written statements to the police at the time and the defendant electing - as is his right - not to make a statement. [54] While the defendant has undoubtedly suffered distress and inconvenience due to having these charges against him for now almost two years, it is my view that it is a delay whereby a combination of both the defendant’s and his original counsel’s actions contributed to, if not caused, the first delay due to the defence request to transfer the proceedings. [55] In oral submissions, defence counsel submitted that a simple case such as this, with no other pre-trials apart from this application, should have been scheduled for hearing in a much more timely way, and therefore the delay is undue and meets the level of being egregious. [56] He has also referred the Court to Graham v District Court at Blenheim & Or CIV-2006-406-119, 10 October 2006, a High Court decision involving a judicial review of a decision of Judge McKegg refusing to stay a criminal proceeding for undue delay (22 months from arrest to the proposed trial date). The High Court ordered a permanent stay of the criminal proceeding against Mr Graham and made the comment at [72]: Both the applicant (as the accused) and New Zealand society generally have an interest in a prompt trial. As is tritely but truly said, justice delayed is justice denied. Accused in New Zealand facing straightforward criminal charges such as this should not have to wait almost two years for trial. [57] In reaching its conclusion, the High Court had considered statistical information before it regarding aged trials in the Blenheim District Court. [58] While I accept the situation Mr Bradshaw faces in this case is not ideal, ie, a Judge alone trial two years after the allegations were made, I consider his case has distinguishing factors which makes any delay, if undue (and I do not necessarily conclude it was undue in this case) not meeting the threshold of egregious. [59] The delays in this case were essentially as a result of miscommunication between the defendant and his former counsel. That is not a matter the Court should accept meets the undue (egregious) test resulting in a stay. It may be that the defendant can take action against his former counsel to the New Zealand Law Society, but that is a matter for the defendant. Further, I cannot conclude that a delay of 16 months from first appearance to the first available fixture date is undue. [60] In my view, the delay in this case cannot be said to be undue, ie, unjustifiable. The case of Zhang discussed above had a greater period of delay and an initial delay attributable to a defence adjournment request. While the defence argued that a fair trial was not possible due to witness availability, none of that was accepted by either the District or High Court. There are similar aspects in this case to Zhang, with the first Judge alone trial being vacated on counsel’s request. In Martin v Tauranga District Court, although the 17 month delay in that case was considered unacceptable (for a quite simple, though serious, case) the Court still said, “Every case will require consideration on its own facts.” [61] In this case, in my view, there was no wilful delay that would justify a stay. [62] However, if I am wrong, and even if I were to accept that there has been a breach of s 25(b) of the BORA, the defendant is unable to point to any specific prejudice which would render him unable to receive a fair trial. Any alleged deterioration in the memory of Crown witnesses is conjecture and, moreover, it will be to the defence’s advantage in discrediting the witnesses and rebutting the allegations. [63] I have no evidence before me that suggests the delay in this case has affected the availability (or unavailability) of witnesses. Rather, the issue here appears to be delay per se and the inconvenience and expense that then results for the defendant. [64] It is not unusual for more cases to be scheduled to a particular trial session due to the number of cases that ‘fall out’. [65] My evaluative assessment in this case is that a stay in a case like this, involving a two year delay which the defendant and/or his former counsel contributed to, would be a disproportionate response. Appropriate response [66] I do not consider that this breach, if it exists, is so egregious that it warrants a stay of proceedings, or, more accurately, a dismissal of the charges because the defendant is unable to receive a fair trial. [67] As noted by Hardie Boys J in Martin v Tauranga District Court (supra) at [544], “the right is to trial without undue delay; it is not a right not to be tried after undue delay”. Result [68] The application for a stay is declined. B A Farnan District Court Judge

On a side note, Arden has ruined something for me forever. Every time I read the word perpetrator, I hear her saying poop-a-traitor.
 

Coleslaw

kiwifarms.net
I looked into the right to a prompt trial in NZ and there appears to be no set standard. Essentially, a judge, any judge who the case lands before, makes the decision to stay proceedings based on the circumstances. So essentially, although presumed innocent, the system can take an indefinite amount of time before proceeding to trial. Now in Tarrant's case we can see how keeping him locked up in the mean time is probably a good idea. But what about those poor saps who are held without bail for accessing/sharing the video or manifesto? They are incarcerated, presumed innocent and not a danger.

This article, though cuckish, explains the basics.

The vicious targeting of the Muslim community in the Christchurch terror attacks has already had swift consequences.

Gun law reform is underway, as is an investigation of laws relating to crimes motivated by bigotry. The government has also announced a Royal Commission of Inquiry into why the attack was not identified and prevented.

At the centre of these various waves is the trial of the alleged perpetrator, accused (to date) of 50 murders and 39 attempted murders. The identities of the attempted murder victims are suppressed at the moment.

Right to fair trial
The accused, who The Conversation has chosen not to name, remains in custody at New Zealand’s highest security prison in Auckland. He has a right to a fair trial based on a presumption of innocence. The trial will be before a High Court judge and a jury of 12, who have to make decisions based on the evidence presented and found admissible in law. Discussions of the merits of the charges in the media or by politicians are to be avoided because of the risk of polluting the court verdict.

During his first court appearance at the Christchurch District Court on the day after the attacks, the accused was named. New Zealand allows defendants to have their names suppressed in various circumstances, but this accused did not seek that protection. Whether or not to name the accused is now a choice of each journalist or media organisation.

Read more: Christchurch attacks provide a new ethics lesson for professional media

New Zealand also allows photography and recording in court, subject to judicial control. A video of the accused with his face blurred was released from the first hearing, but Justice Cameron Mander declined applications to film and record the second hearing at the High Court in Christchurch last week.

Murder charges carry life sentence
At the second, procedural hearing, the accused did not appear in person but via an audio-visual link from prison. Until then, it was thought he would represent himself, but he has now hired two lawyers.

The main order made by Justice Mander was a request for medical reports under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Such reports are designed to investigate whether a defendant might have been insane at the time of the offending or whether he has a current mental disorder that prevents him following a trial. They are commonly ordered for serious charges.

The prosecution may consider additional charges. The most obvious would be breaches of the Arms Act 1983 or the Terrorism Suppression Act 2002. Since murder charges carry a life sentence, the prosecution will no doubt weigh up whether additional charges add anything of value.

A terrorism charge, which also carries a life sentence, would require proof of motivation of the accused, which would allow evidence of ideology before the court. Murder and attempted murder charges focus on the narrower question of an intention to kill, and the only evidence allowed would be relevant to the identification of the accused as the perpetrator and his intention, not his motivation.

The only defence to a murder charge is self-defence from an ongoing attack by others.

Speedy trial unlikely
Before the next hearing, expected in June, the prosecution will be compiling evidence and disclosing that to the defence lawyers. This allows them to consider arguing about the admissibility or otherwise of evidence, which may affect when they can advise on the plea. In a complex case, several pre-trial issues are likely to arise and require a judicial ruling.

The length of the trial will depend on whether any charges are contested, how many facts are accepted by both the prosecution and defence, and the number of witnesses that have to be called to give evidence and be cross examined.

While a speedy trial is an accepted component of a fair trial, that is not a regular feature for trials of any complexity. Even if this case is given priority, if it involves trial (which it will unless there is a guilty plea to the charges brought), it is likely to be many months before it happens.

Trial open to public
Another question is where the trial should take place. So far, the courts in Christchurch have been involved, but cases have been transferred in the past because of difficulties of finding a local jury without a link to someone involved in the case.

The trial will be public. Judges have powers to require some evidence be heard without the public present, but media are allowed in those hearings unless there is a national security issue. Judges can also impose controls on the reporting of evidence, including to protect the interests of victims.

One of several verdicts may follow in any trial. An acquittal follows if there is inadequate evidence of guilt beyond a reasonable doubt. If the medical evidence allows it, a verdict of not guilty by reason of insanity may follow. Similarly, if there is evidence that shows a defendant is not fit to stand trial, the court then considers whether he committed the acts.

The fourth possible verdict, which is proper only if the evidence satisfies the jury beyond a reasonable doubt that the accused committed the offence with the necessary intent, is a verdict of guilty. Such a verdict on a murder charge invariably leads to a sentence of life imprisonment. A judge can order that the sentence has to be served without the prospect of parole.

Prisoners from overseas, including from Australia, usually serve their sentence and are deported at the end of it. New Zealand does not have standing arrangements for prisoners to be transferred to their country of origin to serve their sentence (nor for New Zealanders to return to serve their overseas sentence). But governments can make other arrangements in special circumstances.

Here is an example of a judgement on an application to dismiss based on delay. The important bit, “the right is to trial without undue delay; it is not a right not to be tried after undue delay”.
IN THE DISTRICT COURT AT QUEENSTOWN CRI-2014-059-000426 [2016] NZDC 10548 NEW ZEALAND POLICE Prosecutor v CRAIG ROBERT BRADSHAW Defendant(s) Hearing: 10 June 2016 (at Invercargill) Appearances: Sergeant I Collin for the Prosecutor, by AVL L S Collins for the Defendant, by AVL Judgment: 10 June 2016 Reasons: 13 June 2016 JUDGMENT OF JUDGE B A FARNAN [REASONS - S 147 APPLICATION FOR DISMISSAL] [1] The defendant, Craig Robert Bradshaw, faces one charge pursuant to s 193 of the Crimes Act 1961 for assault with intent to injure. The complainant is Gareth John Johnson. The charge relates to an incident in the early hours of 13 June 2014 outside a bar in Queenstown. [2] The defendant is also charged with failing to answer bail pursuant to s 38(a) of the Bail Act 2000. [3] At the conclusion of the hearing on 10 June 2016, I indicated that the application was declined, and that I would release my reasons later, which I now do. Current application [4] The defendant has made an application pursuant to s 147 of the Criminal Procedure Act 2011 to have the charges laid against him dismissed. [5] The defence submits there has been undue delay in reaching trial and that the charges should be dismissed because a continuation of the prosecution would be an abuse of process. [6] The prosecution oppose the defence application and submit: (a) There has not been any prosecutorial misconduct or other abuse of process; (b) All relevant material has been disclosed; (c) The defendant has not suffered any prejudice; (d) It is in the interests of justice that the defendant stand trial on the charge of assault. (e) Further, the prosecution submit that if the Court considers there has been undue delay, that a stay of proceedings is a remedy of last resort which is not appropriate in this case. The law [7] The Supreme Court in Wilson v R [2015] NZSC 189 has recently restated the principles relating to stays of proceedings which likewise apply to applications for dismissal under s 147 on the basis of abuse of process. The Court at [39] and [40] of the decision states: In relation to criminal proceedings, a stay may be granted where there is a state of misconduct that will: (a) Prejudice the fairness of the defendant’s trial (“the first category”); or (b) Undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed (“the second category”). It follows that the analysis is not backward-looking, in the sense of focusing on the misconduct, but rather forward-looking, in that it relates to the impact of the misconduct on either the fairness of the proposed criminal trial or the integrity of the justice process if the trial proceeds. [8] In an earlier case in 2015, CT v R [2015] 1 NZLR 465, the Supreme Court has also restated factors which can be taken into account relating to a stay based on the grounds of delay. At [32] the Court per William Young J stated: We consider that the approach expressed in R v O remains appropriate subject to the supplementation provided above in [27] to [31]. These principles are broadly consistent with the approaches taken in other similar jurisdictions … we summarise these as follows: (a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial. (b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime. (c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial Judge must take to mitigate the risk of prejudice, there cannot be a fair trial. (d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather, what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay. (e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminancy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case. (f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay. (g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be. Did delay and prejudice preclude a fair trial in this case? [9] The issue of post-charge delay as a form of abuse of process has, to a significant extent, been overtaken by the possibility of a remedy for breach of the right to a prompt trial under s 25(b) of the New Zealand Bill of Rights Act 1990 (BORA). [10] Section 25 relates to “minimum standards of criminal procedure” and ss (b) states that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be tried without undue delay. [11] This right is primarily concerned with the lapse of time between the charge (which, in the context of a Bill of Rights, will generally refer to the first official accusation) and the trial (which extends to appeal processes): Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 420. [12] The general approach to a determination of a breach of s 25(b) is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the right is designed to protect, against factors which inevitably lead to delay or are otherwise the cause of delay. [13] While Blanchard J stated in Martin v Tauranga District Court 1 NZLR 491 (HC) at p 52 that when considering an application for a stay of proceedings based on s 25(b) of BORA: The Court must concentrate upon the rights of the accused, who is presumed to be innocent of the crime charges. … [14] The Judge also identified that subject to the paramount interest of the rights of the accused, there is also a community interest in bringing to trial those who have been charged with crimes and some account might also be taken of the legitimate desire of society to see that persons accused of crimes did not avoid facing trial merely because institutional delays had occurred. [15] Available remedies for a breach of s 25(b) include a stay (if the delay has been egregious) a reduction in sentence, setting aside of the conviction in an extreme case, or monetary compensation in the event of an acquittal: see Williams v R [2009] NZSC 41 at [38]. Authorities [16] Williams v R (supra) is the leading authority on the approach to breaches of s 25(b) of BORA. On the step of determining whether there has been undue delay, the Court said (at [12]) that this is “a function of time, cause and circumstances. Undue in this context is synonymous with unjustifiable”. The Court went on to say: …whether delay is attributable to the Courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted. [17] The Court held at [18] that: The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory, or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. … The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay. (Bold emphasis added.) [18] In Zhang v Auckland District Court [2012] NZHC 385 there was a delay from arrest to trial date of two and a half years. The defendant applied unsuccessfully for a judicial review of the District Court’s decision dismissing his application for a stay of proceedings based on s 25(b) NZBORA grounds. An initial trial date was set within about 18 months of the defendant’s first appearance but his counsel applied to adjourn the trial, indicating that he wished to call a forensic document examiner who had not previously been instructed. Because of pressures in the District Court, subsequent standby dates in November 2010 and May 2011 were unable to proceed and a further trial date was fixed for September 2011, being two and half years from the defendant’s first appearance. [19] The defendant in Zhang alleged that as a result of the delay, a number of witnesses whom he could have called left New Zealand permanently and were unavailable to him. The District Court Judge rejected this as three of those persons had left prior to committal and another would have been unavailable for the September 2010 trial, but for the adjournment of the defendant’s application. The Judge found that notwithstanding a “reasonably substantial delay”, the defendant’s right to a fair trial had not been prejudiced. A stay was deemed inappropriate and unnecessary when a discount could be applied to a sentence of imprisonment, if the defendant was convicted. [20] Of particular interest, MacKenzie J stated at [15]: The first trial date was September 2010. That was about 18 months after arrest. That trial date was approximately one year after depositions. The time taken to reach that point was within bounds, so that there was, at that stage, no breach of the s 25(b) right. [21] In R v I [1993] DCR 1789 7/9/1992 the accused was charged with a series of indecencies upon a young girl. There was not only a delay in the complaint to the police, but the case had been before the Court without coming to trial for 22 months. In that case, the defendant argued there had been too much delay to warrant the trial proceeding and applied to dismiss the proceedings for abuse of process and breach of Bill of Rights guarantee to a speedy trial. Judge Stayanand held that the District Court had the power to stop cases where it was established that delay would render it unfair to, or impossible for, the accused to defence himself. In that case, there was no evidence that the defendant had been thwarted concerning his projected defence (bold emphasis added) and no evidence that the complainant had been subject to external influence. The amount of time before that case came to trial was well beyond the norm, but the Court was unable to find any wilful delay or non-feasance which might justify stopping of the trial. His Honour said the delay was unfortunately but not an extreme case and the defendant was unable to show that he would suffer prejudice in the conduct of his defence. Analysis and application [22] Applying the Williams principles to the present case requires a three step process: (1) Identify the relevant period of delay; (2) Determine whether the delay is undue having regard to the explanation (causes) for it and any prejudice to the accused arising from the delay; (3) If there is undue delay, consider the appropriate response. Factual background [23] The defendant was charged on 16 June 2014. [24] The matter was first called on 17 May 2015. The Court file records that a Judge alone trial was first scheduled for 14 October 2015. [25] There was over 16 months between charging and the first scheduled trial date. This is the first period of delay. No explanation was offered by the prosecutor as to whether this fell within the normal times for a Judge alone trial to take place, however it would not seem that the delay at that point was undue, particularly for a court such as Queenstown which does not sit on a daily basis. [26] While the defence submit the first case review hearing scheduled for 28 July was adjourned due to late disclosure provided by police to original counsel, this brief delay appears to have been overcome by the time a CMM was signed by original counsel dated 12 August 2014 in which it was noted that the matter was ready to proceed to Judge alone trial. That, in my view, cannot be seen as a factor contributing to any delay. [27] The case then remained on a nominal date until May 2015 when it was scheduled for a Judge alone trial for 14 October 2015. [28] It then appears that a notice of application to transfer the case on the basis of an intimated guilty plea was filed by the defendant’s former counsel, dated 8 October 2015. It also seems there was no appearance in the Wellington District Court by counsel or Mr Bradshaw after the matter was transferred there from Queenstown pursuant to the notice of application to transfer the case. Thus, a second period of delay began on 8 October 2015 and a warrant had been issued for the defendant’s arrest due to his non-appearance. [29] The defendant claims that he is not responsible for this (second) delay and that it was the fault of previous counsel. The defendant deposes in his affidavit that he moved to Auckland in August 2014 and says that he was never aware of the scheduled 14 October 2015 trial date in Queenstown. He deposes that he was unaware of any change in his Court proceedings until the first week of December 2015 when the police arrived at his home to inform him there was a warrant for his arrest due to his failure to attend his Wellington Court date. Consequently the defendant appeared in the Auckland District Court in December 2015 to resolve matters and his case was transferred back to Queenstown for a case review hearing on 11 January 2016. [30] The defendant instructed new counsel and the case review hearing was adjourned, being unnecessary, and the defendant’s case was listed on a nominal date to await trial. [31] On 19 April 2016 the defendant deposes he was advised by his lawyer that his Judge alone trial was scheduled for 17 May 2016. The defendant made arrangements to attend. [32] Unfortunately, it would appear that a Family Court hearing was also scheduled for 17 May 2016, the situation effectively requiring the defendant to attend on a standby basis due to the double booking. The trial was unable to proceed due to the other Family Court case proceeding. [33] The prosecution submit they had been in communication with the defendant’s previous counsel, Mr Fulton, in the weeks leading up to what had been the first scheduled trial on 14 October 2015, and that in the week prior to trial, Mr Fulton confirmed there had been a change of plea and requested a transfer of the file to Wellington. The police at that time had no objection to the application and a date in Wellington was allocated. [34] The defendant’s previous counsel, Mr Fulton, swore an affidavit in which he deposes that he wrote to the defendant in July 2015, that letter being sent by conventional mail. He says the defendant contacted him in September 2015. Mr Fulton says he was frustrated with the defendant (for reasons that are not entirely clear but may have been attributed to the defendant’s delay in contacting him). [35] In any event, Mr Fulton contacted the defendant by email on 30 September 2015. That email shows that Mr Fulton informed the defendant of the 14 October 2015 fixture date, and asked whether the defendant had received his [Mr Fulton’s] letter and which email address the communication should go to, because it was not work related and presumably he did not wish to communicate with the defendant via his work email. [36] Mr Fulton deposes that on 1 October 2015 the defendant contacted him indicating that he was in Wellington the next day and asked whether they could meet. Mr Fulton deposes that he and the defendant met and discussed various options, and he consequently emailed the Queenstown Court and asked whether the matter could be transferred Wellington for plea and sentencing. [37] Mr Fulton deposed that he emailed the defendant to advise that he was not required in Queenstown and that the next Court date was 23 October 2015 in Wellington. The emails show that the defendant replied the same day at 3.53 pm saying, “Ok great so I don’t have to come to Wellington either?” Mr Fulton has not attached his reply, if any, to that question by the defendant. Nor does Mr Fulton’s affidavit state how he replied to the defendant. His affidavit merely states the defendant could not come. Mr Fulton states at paragraph [40] of his affidavit, “…I suspect that I was able to have a warrant held over until Bradshaw could travel”. Although not clear, it is presumed that that was a reference by Mr Fulton to the defendant’s lack of appearance in Wellington on 23 October 2015. Then Mr Fulton emailed the defendant on 13 November 2015 and said, “We need to get the change of plea recorded.” Again, the defendant’s reply, which would verify whether or not the defendant wished (by then) to change his plea, is not attached to Mr Fulton’s affidavit. However, Mr Fulton deposes that he talked to the defendant when the defendant appeared to cancel the warrant in person in Auckland, and he advised the defendant to engage counsel in Auckland. [38] While there appears to be some confusion in Mr Fulton’s evidence as to whether the defendant directly responded to Mr Fulton’s email regarding the comment “we need to get the plea recorded”, it is hard to conclude anything other than the fact that it was discussed between Mr Fulton and the defendant, otherwise Mr Fulton’s email regarding a change of plea would make no sense. [39] On that basis, I refer to the evidence of Mr Fulton and find that the defendant had discussed a change of plea and transfer from Queenstown with Mr Fulton, who then communicated that to police prosecutions in Queenstown. [40] Finally, the defendant submits he is prejudiced by the time delay of 23 months and that further delay would be an abuse of process. The delay from charging to the first scheduled Judge alone trial was 16 months. The delay from October 2015 to May 2016 is seven months. The total delay is nearly 24 months. Is the delay undue? [41] In order to establish that the length of the delay is undue, the defendant must be able to point to some exceptional delay. [42] The Court of Appeal in R v Grant CA471/95, 29 May 1996, held that a 27 month delay between the first Court appearance and the trial was not undue, as the accused had not suffered any particular prejudice. The cause of the delay could not be attributed to any particular party. [43] In M (CA427/11) v R [2012] NZCA 270, the Court discounted 12 months in total for delays caused by change in counsel, noting at [90] that Mr M’s “expectation of the services that could be provided by counsel were unrealistic”. [44] In Mazidabadi v R [2012] NZCA 315, the delay between being charged with arson in 1999 and conviction following trial in 2011 was mostly attributable to the accused’s own actions, namely failing to appear for trial in July 2000, and subsequently being outside New Zealand for over six years because of his deportation as an overstayer. [45] In this case, from early October 2015 the delay appears to be attributable to the poor communication between the defendant and Mr Fulton. None of that delay can be attributable to either the police prosecution or the Court. [46] The somewhat confused versions of events conveyed by the defendant and Mr Fulton to this Court do not aid in verifying what the defendant actually instructed his counsel to do, but indicate, as I have discussed above, that there was a discussion regarding a change of plea. Certainly, I accept that communication between them was poor. [47] While it is clear that Mr Fulton stated he and the defendant discussed various options, I accept it is not clear from this affidavit whether the defendant instructed him directly to enter a guilty plea. However, on the other hand, there is nothing in any of the email communication from the defendant to Mr Fulton that would indicate his unhappiness as to what had been proposed regarding a transfer of the proceedings. It is clear, however, as I have already discussed above, that the defendant was sent an email from Mr Fulton telling him “we need to get the change of plea recorded”. From the Court’s perspective, it was clearly open to the defendant at that stage to communicate directly with his then counsel to clear up any confusion that may have existed in his mind as to what his plea was intended to be in respect of the [then] charge he was facing. [48] This is a situation where it may be that the defendant never intended to enter a guilty plea; that is certainly his position now. It may be that his counsel was remiss in keeping the defendant fully informed about the matter. Equally, it is apparent that his counsel emailed him information from time to time. However, it is largely immaterial who was at fault between the defendant and Mr Fulton. Significantly, it was not the police or the Court system that was at fault in that regard. The Court had made a Judge alone trial date available in October 2015, at which point there can be no question of delay. That was a Court date within 16 months of the defendant’s first appearance. Even if there had been some delay in initial disclosure, that position had clearly been remedied within a short space of time and does not appear to have affected a subsequent availability of a Judge alone trial date in October 2015. [49] Accordingly, from this Court’s perspective, the defendant and/or counsel, or a combination thereof, resulted in the October 2015 Judge alone trial date not being utilised and the subsequent trial date for 17 May 2016 having to be vacated with a new date to be set. [50] While the subsequent (17 May 2016) delay (the second delay) was largely institutional due to a Court scheduling mixup, this had been exacerbated by the conduct of the defendant and Mr Fulton in managing their approach to the case. Their contribution to the delays are still relevant in assessing whether the delay overall is undue and whether it would be fair for the proceedings to be stayed through no fault of the prosecution, especially as in this case it would appear the Court then prioritised the defendant’s case for the next earliest hearing date (now scheduled for 14 June 2016) [51] Whether the delay was undue depends on the validity of the explanations for the delay. The initial 16 months between first appearance and the October 2015 Judge alone trial date was unfortunate, but well within the timeframe for scheduled cases, and District Courts such as Queenstown are not scheduled to sit on a daily or weekly basis. The unfortunate reality is that the timeframes of this kind are not uncommon in today’s system. [52] However, even if I were to determine that the 16 month delay at that point was longer than usual, it would not, in my view, be able to be described as an egregious delay. Further, even if I were to determine the defendant’s s 25(b) right has been breached, albeit unintentionally, by the delay, it would not justify a stay. There is often a fine balance between accommodating institutional resource constraints and protecting a defendant’s rights under BORA. [53] The defence have not, in this case, been able to submit that but for the delay, there would have been identifiable evidence that would have assisted the defendant, other than the prosecution witnesses having made written statements to the police at the time and the defendant electing - as is his right - not to make a statement. [54] While the defendant has undoubtedly suffered distress and inconvenience due to having these charges against him for now almost two years, it is my view that it is a delay whereby a combination of both the defendant’s and his original counsel’s actions contributed to, if not caused, the first delay due to the defence request to transfer the proceedings. [55] In oral submissions, defence counsel submitted that a simple case such as this, with no other pre-trials apart from this application, should have been scheduled for hearing in a much more timely way, and therefore the delay is undue and meets the level of being egregious. [56] He has also referred the Court to Graham v District Court at Blenheim & Or CIV-2006-406-119, 10 October 2006, a High Court decision involving a judicial review of a decision of Judge McKegg refusing to stay a criminal proceeding for undue delay (22 months from arrest to the proposed trial date). The High Court ordered a permanent stay of the criminal proceeding against Mr Graham and made the comment at [72]: Both the applicant (as the accused) and New Zealand society generally have an interest in a prompt trial. As is tritely but truly said, justice delayed is justice denied. Accused in New Zealand facing straightforward criminal charges such as this should not have to wait almost two years for trial. [57] In reaching its conclusion, the High Court had considered statistical information before it regarding aged trials in the Blenheim District Court. [58] While I accept the situation Mr Bradshaw faces in this case is not ideal, ie, a Judge alone trial two years after the allegations were made, I consider his case has distinguishing factors which makes any delay, if undue (and I do not necessarily conclude it was undue in this case) not meeting the threshold of egregious. [59] The delays in this case were essentially as a result of miscommunication between the defendant and his former counsel. That is not a matter the Court should accept meets the undue (egregious) test resulting in a stay. It may be that the defendant can take action against his former counsel to the New Zealand Law Society, but that is a matter for the defendant. Further, I cannot conclude that a delay of 16 months from first appearance to the first available fixture date is undue. [60] In my view, the delay in this case cannot be said to be undue, ie, unjustifiable. The case of Zhang discussed above had a greater period of delay and an initial delay attributable to a defence adjournment request. While the defence argued that a fair trial was not possible due to witness availability, none of that was accepted by either the District or High Court. There are similar aspects in this case to Zhang, with the first Judge alone trial being vacated on counsel’s request. In Martin v Tauranga District Court, although the 17 month delay in that case was considered unacceptable (for a quite simple, though serious, case) the Court still said, “Every case will require consideration on its own facts.” [61] In this case, in my view, there was no wilful delay that would justify a stay. [62] However, if I am wrong, and even if I were to accept that there has been a breach of s 25(b) of the BORA, the defendant is unable to point to any specific prejudice which would render him unable to receive a fair trial. Any alleged deterioration in the memory of Crown witnesses is conjecture and, moreover, it will be to the defence’s advantage in discrediting the witnesses and rebutting the allegations. [63] I have no evidence before me that suggests the delay in this case has affected the availability (or unavailability) of witnesses. Rather, the issue here appears to be delay per se and the inconvenience and expense that then results for the defendant. [64] It is not unusual for more cases to be scheduled to a particular trial session due to the number of cases that ‘fall out’. [65] My evaluative assessment in this case is that a stay in a case like this, involving a two year delay which the defendant and/or his former counsel contributed to, would be a disproportionate response. Appropriate response [66] I do not consider that this breach, if it exists, is so egregious that it warrants a stay of proceedings, or, more accurately, a dismissal of the charges because the defendant is unable to receive a fair trial. [67] As noted by Hardie Boys J in Martin v Tauranga District Court (supra) at [544], “the right is to trial without undue delay; it is not a right not to be tried after undue delay”. Result [68] The application for a stay is declined. B A Farnan District Court Judge

On a side note, Arden has ruined something for me forever. Every time I read the word perpetrator, I hear her saying poop-a-traitor.
Thank God there's still a jury.
e: Apparently New Zealand district judges write worse than US district judges.
 
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CaesarCzech

kiwifarms.net
I looked into the right to a prompt trial in NZ and there appears to be no set standard. Essentially, a judge, any judge who the case lands before, makes the decision to stay proceedings based on the circumstances. So essentially, although presumed innocent, the system can take an indefinite amount of time before proceeding to trial. Now in Tarrant's case we can see how keeping him locked up in the mean time is probably a good idea. But what about those poor saps who are held without bail for accessing/sharing the video or manifesto? They are incarcerated, presumed innocent and not a danger.

This article, though cuckish, explains the basics.

The vicious targeting of the Muslim community in the Christchurch terror attacks has already had swift consequences.

Gun law reform is underway, as is an investigation of laws relating to crimes motivated by bigotry. The government has also announced a Royal Commission of Inquiry into why the attack was not identified and prevented.

At the centre of these various waves is the trial of the alleged perpetrator, accused (to date) of 50 murders and 39 attempted murders. The identities of the attempted murder victims are suppressed at the moment.

Right to fair trial
The accused, who The Conversation has chosen not to name, remains in custody at New Zealand’s highest security prison in Auckland. He has a right to a fair trial based on a presumption of innocence. The trial will be before a High Court judge and a jury of 12, who have to make decisions based on the evidence presented and found admissible in law. Discussions of the merits of the charges in the media or by politicians are to be avoided because of the risk of polluting the court verdict.

During his first court appearance at the Christchurch District Court on the day after the attacks, the accused was named. New Zealand allows defendants to have their names suppressed in various circumstances, but this accused did not seek that protection. Whether or not to name the accused is now a choice of each journalist or media organisation.

Read more: Christchurch attacks provide a new ethics lesson for professional media

New Zealand also allows photography and recording in court, subject to judicial control. A video of the accused with his face blurred was released from the first hearing, but Justice Cameron Mander declined applications to film and record the second hearing at the High Court in Christchurch last week.

Murder charges carry life sentence
At the second, procedural hearing, the accused did not appear in person but via an audio-visual link from prison. Until then, it was thought he would represent himself, but he has now hired two lawyers.

The main order made by Justice Mander was a request for medical reports under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Such reports are designed to investigate whether a defendant might have been insane at the time of the offending or whether he has a current mental disorder that prevents him following a trial. They are commonly ordered for serious charges.

The prosecution may consider additional charges. The most obvious would be breaches of the Arms Act 1983 or the Terrorism Suppression Act 2002. Since murder charges carry a life sentence, the prosecution will no doubt weigh up whether additional charges add anything of value.

A terrorism charge, which also carries a life sentence, would require proof of motivation of the accused, which would allow evidence of ideology before the court. Murder and attempted murder charges focus on the narrower question of an intention to kill, and the only evidence allowed would be relevant to the identification of the accused as the perpetrator and his intention, not his motivation.

The only defence to a murder charge is self-defence from an ongoing attack by others.

Speedy trial unlikely
Before the next hearing, expected in June, the prosecution will be compiling evidence and disclosing that to the defence lawyers. This allows them to consider arguing about the admissibility or otherwise of evidence, which may affect when they can advise on the plea. In a complex case, several pre-trial issues are likely to arise and require a judicial ruling.

The length of the trial will depend on whether any charges are contested, how many facts are accepted by both the prosecution and defence, and the number of witnesses that have to be called to give evidence and be cross examined.

While a speedy trial is an accepted component of a fair trial, that is not a regular feature for trials of any complexity. Even if this case is given priority, if it involves trial (which it will unless there is a guilty plea to the charges brought), it is likely to be many months before it happens.

Trial open to public
Another question is where the trial should take place. So far, the courts in Christchurch have been involved, but cases have been transferred in the past because of difficulties of finding a local jury without a link to someone involved in the case.

The trial will be public. Judges have powers to require some evidence be heard without the public present, but media are allowed in those hearings unless there is a national security issue. Judges can also impose controls on the reporting of evidence, including to protect the interests of victims.

One of several verdicts may follow in any trial. An acquittal follows if there is inadequate evidence of guilt beyond a reasonable doubt. If the medical evidence allows it, a verdict of not guilty by reason of insanity may follow. Similarly, if there is evidence that shows a defendant is not fit to stand trial, the court then considers whether he committed the acts.

The fourth possible verdict, which is proper only if the evidence satisfies the jury beyond a reasonable doubt that the accused committed the offence with the necessary intent, is a verdict of guilty. Such a verdict on a murder charge invariably leads to a sentence of life imprisonment. A judge can order that the sentence has to be served without the prospect of parole.

Prisoners from overseas, including from Australia, usually serve their sentence and are deported at the end of it. New Zealand does not have standing arrangements for prisoners to be transferred to their country of origin to serve their sentence (nor for New Zealanders to return to serve their overseas sentence). But governments can make other arrangements in special circumstances.

Here is an example of a judgement on an application to dismiss based on delay. The important bit, “the right is to trial without undue delay; it is not a right not to be tried after undue delay”.
IN THE DISTRICT COURT AT QUEENSTOWN CRI-2014-059-000426 [2016] NZDC 10548 NEW ZEALAND POLICE Prosecutor v CRAIG ROBERT BRADSHAW Defendant(s) Hearing: 10 June 2016 (at Invercargill) Appearances: Sergeant I Collin for the Prosecutor, by AVL L S Collins for the Defendant, by AVL Judgment: 10 June 2016 Reasons: 13 June 2016 JUDGMENT OF JUDGE B A FARNAN [REASONS - S 147 APPLICATION FOR DISMISSAL] [1] The defendant, Craig Robert Bradshaw, faces one charge pursuant to s 193 of the Crimes Act 1961 for assault with intent to injure. The complainant is Gareth John Johnson. The charge relates to an incident in the early hours of 13 June 2014 outside a bar in Queenstown. [2] The defendant is also charged with failing to answer bail pursuant to s 38(a) of the Bail Act 2000. [3] At the conclusion of the hearing on 10 June 2016, I indicated that the application was declined, and that I would release my reasons later, which I now do. Current application [4] The defendant has made an application pursuant to s 147 of the Criminal Procedure Act 2011 to have the charges laid against him dismissed. [5] The defence submits there has been undue delay in reaching trial and that the charges should be dismissed because a continuation of the prosecution would be an abuse of process. [6] The prosecution oppose the defence application and submit: (a) There has not been any prosecutorial misconduct or other abuse of process; (b) All relevant material has been disclosed; (c) The defendant has not suffered any prejudice; (d) It is in the interests of justice that the defendant stand trial on the charge of assault. (e) Further, the prosecution submit that if the Court considers there has been undue delay, that a stay of proceedings is a remedy of last resort which is not appropriate in this case. The law [7] The Supreme Court in Wilson v R [2015] NZSC 189 has recently restated the principles relating to stays of proceedings which likewise apply to applications for dismissal under s 147 on the basis of abuse of process. The Court at [39] and [40] of the decision states: In relation to criminal proceedings, a stay may be granted where there is a state of misconduct that will: (a) Prejudice the fairness of the defendant’s trial (“the first category”); or (b) Undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed (“the second category”). It follows that the analysis is not backward-looking, in the sense of focusing on the misconduct, but rather forward-looking, in that it relates to the impact of the misconduct on either the fairness of the proposed criminal trial or the integrity of the justice process if the trial proceeds. [8] In an earlier case in 2015, CT v R [2015] 1 NZLR 465, the Supreme Court has also restated factors which can be taken into account relating to a stay based on the grounds of delay. At [32] the Court per William Young J stated: We consider that the approach expressed in R v O remains appropriate subject to the supplementation provided above in [27] to [31]. These principles are broadly consistent with the approaches taken in other similar jurisdictions … we summarise these as follows: (a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial. (b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime. (c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial Judge must take to mitigate the risk of prejudice, there cannot be a fair trial. (d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather, what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay. (e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminancy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case. (f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay. (g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be. Did delay and prejudice preclude a fair trial in this case? [9] The issue of post-charge delay as a form of abuse of process has, to a significant extent, been overtaken by the possibility of a remedy for breach of the right to a prompt trial under s 25(b) of the New Zealand Bill of Rights Act 1990 (BORA). [10] Section 25 relates to “minimum standards of criminal procedure” and ss (b) states that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be tried without undue delay. [11] This right is primarily concerned with the lapse of time between the charge (which, in the context of a Bill of Rights, will generally refer to the first official accusation) and the trial (which extends to appeal processes): Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 420. [12] The general approach to a determination of a breach of s 25(b) is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the right is designed to protect, against factors which inevitably lead to delay or are otherwise the cause of delay. [13] While Blanchard J stated in Martin v Tauranga District Court 1 NZLR 491 (HC) at p 52 that when considering an application for a stay of proceedings based on s 25(b) of BORA: The Court must concentrate upon the rights of the accused, who is presumed to be innocent of the crime charges. … [14] The Judge also identified that subject to the paramount interest of the rights of the accused, there is also a community interest in bringing to trial those who have been charged with crimes and some account might also be taken of the legitimate desire of society to see that persons accused of crimes did not avoid facing trial merely because institutional delays had occurred. [15] Available remedies for a breach of s 25(b) include a stay (if the delay has been egregious) a reduction in sentence, setting aside of the conviction in an extreme case, or monetary compensation in the event of an acquittal: see Williams v R [2009] NZSC 41 at [38]. Authorities [16] Williams v R (supra) is the leading authority on the approach to breaches of s 25(b) of BORA. On the step of determining whether there has been undue delay, the Court said (at [12]) that this is “a function of time, cause and circumstances. Undue in this context is synonymous with unjustifiable”. The Court went on to say: …whether delay is attributable to the Courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted. [17] The Court held at [18] that: The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory, or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. … The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay. (Bold emphasis added.) [18] In Zhang v Auckland District Court [2012] NZHC 385 there was a delay from arrest to trial date of two and a half years. The defendant applied unsuccessfully for a judicial review of the District Court’s decision dismissing his application for a stay of proceedings based on s 25(b) NZBORA grounds. An initial trial date was set within about 18 months of the defendant’s first appearance but his counsel applied to adjourn the trial, indicating that he wished to call a forensic document examiner who had not previously been instructed. Because of pressures in the District Court, subsequent standby dates in November 2010 and May 2011 were unable to proceed and a further trial date was fixed for September 2011, being two and half years from the defendant’s first appearance. [19] The defendant in Zhang alleged that as a result of the delay, a number of witnesses whom he could have called left New Zealand permanently and were unavailable to him. The District Court Judge rejected this as three of those persons had left prior to committal and another would have been unavailable for the September 2010 trial, but for the adjournment of the defendant’s application. The Judge found that notwithstanding a “reasonably substantial delay”, the defendant’s right to a fair trial had not been prejudiced. A stay was deemed inappropriate and unnecessary when a discount could be applied to a sentence of imprisonment, if the defendant was convicted. [20] Of particular interest, MacKenzie J stated at [15]: The first trial date was September 2010. That was about 18 months after arrest. That trial date was approximately one year after depositions. The time taken to reach that point was within bounds, so that there was, at that stage, no breach of the s 25(b) right. [21] In R v I [1993] DCR 1789 7/9/1992 the accused was charged with a series of indecencies upon a young girl. There was not only a delay in the complaint to the police, but the case had been before the Court without coming to trial for 22 months. In that case, the defendant argued there had been too much delay to warrant the trial proceeding and applied to dismiss the proceedings for abuse of process and breach of Bill of Rights guarantee to a speedy trial. Judge Stayanand held that the District Court had the power to stop cases where it was established that delay would render it unfair to, or impossible for, the accused to defence himself. In that case, there was no evidence that the defendant had been thwarted concerning his projected defence (bold emphasis added) and no evidence that the complainant had been subject to external influence. The amount of time before that case came to trial was well beyond the norm, but the Court was unable to find any wilful delay or non-feasance which might justify stopping of the trial. His Honour said the delay was unfortunately but not an extreme case and the defendant was unable to show that he would suffer prejudice in the conduct of his defence. Analysis and application [22] Applying the Williams principles to the present case requires a three step process: (1) Identify the relevant period of delay; (2) Determine whether the delay is undue having regard to the explanation (causes) for it and any prejudice to the accused arising from the delay; (3) If there is undue delay, consider the appropriate response. Factual background [23] The defendant was charged on 16 June 2014. [24] The matter was first called on 17 May 2015. The Court file records that a Judge alone trial was first scheduled for 14 October 2015. [25] There was over 16 months between charging and the first scheduled trial date. This is the first period of delay. No explanation was offered by the prosecutor as to whether this fell within the normal times for a Judge alone trial to take place, however it would not seem that the delay at that point was undue, particularly for a court such as Queenstown which does not sit on a daily basis. [26] While the defence submit the first case review hearing scheduled for 28 July was adjourned due to late disclosure provided by police to original counsel, this brief delay appears to have been overcome by the time a CMM was signed by original counsel dated 12 August 2014 in which it was noted that the matter was ready to proceed to Judge alone trial. That, in my view, cannot be seen as a factor contributing to any delay. [27] The case then remained on a nominal date until May 2015 when it was scheduled for a Judge alone trial for 14 October 2015. [28] It then appears that a notice of application to transfer the case on the basis of an intimated guilty plea was filed by the defendant’s former counsel, dated 8 October 2015. It also seems there was no appearance in the Wellington District Court by counsel or Mr Bradshaw after the matter was transferred there from Queenstown pursuant to the notice of application to transfer the case. Thus, a second period of delay began on 8 October 2015 and a warrant had been issued for the defendant’s arrest due to his non-appearance. [29] The defendant claims that he is not responsible for this (second) delay and that it was the fault of previous counsel. The defendant deposes in his affidavit that he moved to Auckland in August 2014 and says that he was never aware of the scheduled 14 October 2015 trial date in Queenstown. He deposes that he was unaware of any change in his Court proceedings until the first week of December 2015 when the police arrived at his home to inform him there was a warrant for his arrest due to his failure to attend his Wellington Court date. Consequently the defendant appeared in the Auckland District Court in December 2015 to resolve matters and his case was transferred back to Queenstown for a case review hearing on 11 January 2016. [30] The defendant instructed new counsel and the case review hearing was adjourned, being unnecessary, and the defendant’s case was listed on a nominal date to await trial. [31] On 19 April 2016 the defendant deposes he was advised by his lawyer that his Judge alone trial was scheduled for 17 May 2016. The defendant made arrangements to attend. [32] Unfortunately, it would appear that a Family Court hearing was also scheduled for 17 May 2016, the situation effectively requiring the defendant to attend on a standby basis due to the double booking. The trial was unable to proceed due to the other Family Court case proceeding. [33] The prosecution submit they had been in communication with the defendant’s previous counsel, Mr Fulton, in the weeks leading up to what had been the first scheduled trial on 14 October 2015, and that in the week prior to trial, Mr Fulton confirmed there had been a change of plea and requested a transfer of the file to Wellington. The police at that time had no objection to the application and a date in Wellington was allocated. [34] The defendant’s previous counsel, Mr Fulton, swore an affidavit in which he deposes that he wrote to the defendant in July 2015, that letter being sent by conventional mail. He says the defendant contacted him in September 2015. Mr Fulton says he was frustrated with the defendant (for reasons that are not entirely clear but may have been attributed to the defendant’s delay in contacting him). [35] In any event, Mr Fulton contacted the defendant by email on 30 September 2015. That email shows that Mr Fulton informed the defendant of the 14 October 2015 fixture date, and asked whether the defendant had received his [Mr Fulton’s] letter and which email address the communication should go to, because it was not work related and presumably he did not wish to communicate with the defendant via his work email. [36] Mr Fulton deposes that on 1 October 2015 the defendant contacted him indicating that he was in Wellington the next day and asked whether they could meet. Mr Fulton deposes that he and the defendant met and discussed various options, and he consequently emailed the Queenstown Court and asked whether the matter could be transferred Wellington for plea and sentencing. [37] Mr Fulton deposed that he emailed the defendant to advise that he was not required in Queenstown and that the next Court date was 23 October 2015 in Wellington. The emails show that the defendant replied the same day at 3.53 pm saying, “Ok great so I don’t have to come to Wellington either?” Mr Fulton has not attached his reply, if any, to that question by the defendant. Nor does Mr Fulton’s affidavit state how he replied to the defendant. His affidavit merely states the defendant could not come. Mr Fulton states at paragraph [40] of his affidavit, “…I suspect that I was able to have a warrant held over until Bradshaw could travel”. Although not clear, it is presumed that that was a reference by Mr Fulton to the defendant’s lack of appearance in Wellington on 23 October 2015. Then Mr Fulton emailed the defendant on 13 November 2015 and said, “We need to get the change of plea recorded.” Again, the defendant’s reply, which would verify whether or not the defendant wished (by then) to change his plea, is not attached to Mr Fulton’s affidavit. However, Mr Fulton deposes that he talked to the defendant when the defendant appeared to cancel the warrant in person in Auckland, and he advised the defendant to engage counsel in Auckland. [38] While there appears to be some confusion in Mr Fulton’s evidence as to whether the defendant directly responded to Mr Fulton’s email regarding the comment “we need to get the plea recorded”, it is hard to conclude anything other than the fact that it was discussed between Mr Fulton and the defendant, otherwise Mr Fulton’s email regarding a change of plea would make no sense. [39] On that basis, I refer to the evidence of Mr Fulton and find that the defendant had discussed a change of plea and transfer from Queenstown with Mr Fulton, who then communicated that to police prosecutions in Queenstown. [40] Finally, the defendant submits he is prejudiced by the time delay of 23 months and that further delay would be an abuse of process. The delay from charging to the first scheduled Judge alone trial was 16 months. The delay from October 2015 to May 2016 is seven months. The total delay is nearly 24 months. Is the delay undue? [41] In order to establish that the length of the delay is undue, the defendant must be able to point to some exceptional delay. [42] The Court of Appeal in R v Grant CA471/95, 29 May 1996, held that a 27 month delay between the first Court appearance and the trial was not undue, as the accused had not suffered any particular prejudice. The cause of the delay could not be attributed to any particular party. [43] In M (CA427/11) v R [2012] NZCA 270, the Court discounted 12 months in total for delays caused by change in counsel, noting at [90] that Mr M’s “expectation of the services that could be provided by counsel were unrealistic”. [44] In Mazidabadi v R [2012] NZCA 315, the delay between being charged with arson in 1999 and conviction following trial in 2011 was mostly attributable to the accused’s own actions, namely failing to appear for trial in July 2000, and subsequently being outside New Zealand for over six years because of his deportation as an overstayer. [45] In this case, from early October 2015 the delay appears to be attributable to the poor communication between the defendant and Mr Fulton. None of that delay can be attributable to either the police prosecution or the Court. [46] The somewhat confused versions of events conveyed by the defendant and Mr Fulton to this Court do not aid in verifying what the defendant actually instructed his counsel to do, but indicate, as I have discussed above, that there was a discussion regarding a change of plea. Certainly, I accept that communication between them was poor. [47] While it is clear that Mr Fulton stated he and the defendant discussed various options, I accept it is not clear from this affidavit whether the defendant instructed him directly to enter a guilty plea. However, on the other hand, there is nothing in any of the email communication from the defendant to Mr Fulton that would indicate his unhappiness as to what had been proposed regarding a transfer of the proceedings. It is clear, however, as I have already discussed above, that the defendant was sent an email from Mr Fulton telling him “we need to get the change of plea recorded”. From the Court’s perspective, it was clearly open to the defendant at that stage to communicate directly with his then counsel to clear up any confusion that may have existed in his mind as to what his plea was intended to be in respect of the [then] charge he was facing. [48] This is a situation where it may be that the defendant never intended to enter a guilty plea; that is certainly his position now. It may be that his counsel was remiss in keeping the defendant fully informed about the matter. Equally, it is apparent that his counsel emailed him information from time to time. However, it is largely immaterial who was at fault between the defendant and Mr Fulton. Significantly, it was not the police or the Court system that was at fault in that regard. The Court had made a Judge alone trial date available in October 2015, at which point there can be no question of delay. That was a Court date within 16 months of the defendant’s first appearance. Even if there had been some delay in initial disclosure, that position had clearly been remedied within a short space of time and does not appear to have affected a subsequent availability of a Judge alone trial date in October 2015. [49] Accordingly, from this Court’s perspective, the defendant and/or counsel, or a combination thereof, resulted in the October 2015 Judge alone trial date not being utilised and the subsequent trial date for 17 May 2016 having to be vacated with a new date to be set. [50] While the subsequent (17 May 2016) delay (the second delay) was largely institutional due to a Court scheduling mixup, this had been exacerbated by the conduct of the defendant and Mr Fulton in managing their approach to the case. Their contribution to the delays are still relevant in assessing whether the delay overall is undue and whether it would be fair for the proceedings to be stayed through no fault of the prosecution, especially as in this case it would appear the Court then prioritised the defendant’s case for the next earliest hearing date (now scheduled for 14 June 2016) [51] Whether the delay was undue depends on the validity of the explanations for the delay. The initial 16 months between first appearance and the October 2015 Judge alone trial date was unfortunate, but well within the timeframe for scheduled cases, and District Courts such as Queenstown are not scheduled to sit on a daily or weekly basis. The unfortunate reality is that the timeframes of this kind are not uncommon in today’s system. [52] However, even if I were to determine that the 16 month delay at that point was longer than usual, it would not, in my view, be able to be described as an egregious delay. Further, even if I were to determine the defendant’s s 25(b) right has been breached, albeit unintentionally, by the delay, it would not justify a stay. There is often a fine balance between accommodating institutional resource constraints and protecting a defendant’s rights under BORA. [53] The defence have not, in this case, been able to submit that but for the delay, there would have been identifiable evidence that would have assisted the defendant, other than the prosecution witnesses having made written statements to the police at the time and the defendant electing - as is his right - not to make a statement. [54] While the defendant has undoubtedly suffered distress and inconvenience due to having these charges against him for now almost two years, it is my view that it is a delay whereby a combination of both the defendant’s and his original counsel’s actions contributed to, if not caused, the first delay due to the defence request to transfer the proceedings. [55] In oral submissions, defence counsel submitted that a simple case such as this, with no other pre-trials apart from this application, should have been scheduled for hearing in a much more timely way, and therefore the delay is undue and meets the level of being egregious. [56] He has also referred the Court to Graham v District Court at Blenheim & Or CIV-2006-406-119, 10 October 2006, a High Court decision involving a judicial review of a decision of Judge McKegg refusing to stay a criminal proceeding for undue delay (22 months from arrest to the proposed trial date). The High Court ordered a permanent stay of the criminal proceeding against Mr Graham and made the comment at [72]: Both the applicant (as the accused) and New Zealand society generally have an interest in a prompt trial. As is tritely but truly said, justice delayed is justice denied. Accused in New Zealand facing straightforward criminal charges such as this should not have to wait almost two years for trial. [57] In reaching its conclusion, the High Court had considered statistical information before it regarding aged trials in the Blenheim District Court. [58] While I accept the situation Mr Bradshaw faces in this case is not ideal, ie, a Judge alone trial two years after the allegations were made, I consider his case has distinguishing factors which makes any delay, if undue (and I do not necessarily conclude it was undue in this case) not meeting the threshold of egregious. [59] The delays in this case were essentially as a result of miscommunication between the defendant and his former counsel. That is not a matter the Court should accept meets the undue (egregious) test resulting in a stay. It may be that the defendant can take action against his former counsel to the New Zealand Law Society, but that is a matter for the defendant. Further, I cannot conclude that a delay of 16 months from first appearance to the first available fixture date is undue. [60] In my view, the delay in this case cannot be said to be undue, ie, unjustifiable. The case of Zhang discussed above had a greater period of delay and an initial delay attributable to a defence adjournment request. While the defence argued that a fair trial was not possible due to witness availability, none of that was accepted by either the District or High Court. There are similar aspects in this case to Zhang, with the first Judge alone trial being vacated on counsel’s request. In Martin v Tauranga District Court, although the 17 month delay in that case was considered unacceptable (for a quite simple, though serious, case) the Court still said, “Every case will require consideration on its own facts.” [61] In this case, in my view, there was no wilful delay that would justify a stay. [62] However, if I am wrong, and even if I were to accept that there has been a breach of s 25(b) of the BORA, the defendant is unable to point to any specific prejudice which would render him unable to receive a fair trial. Any alleged deterioration in the memory of Crown witnesses is conjecture and, moreover, it will be to the defence’s advantage in discrediting the witnesses and rebutting the allegations. [63] I have no evidence before me that suggests the delay in this case has affected the availability (or unavailability) of witnesses. Rather, the issue here appears to be delay per se and the inconvenience and expense that then results for the defendant. [64] It is not unusual for more cases to be scheduled to a particular trial session due to the number of cases that ‘fall out’. [65] My evaluative assessment in this case is that a stay in a case like this, involving a two year delay which the defendant and/or his former counsel contributed to, would be a disproportionate response. Appropriate response [66] I do not consider that this breach, if it exists, is so egregious that it warrants a stay of proceedings, or, more accurately, a dismissal of the charges because the defendant is unable to receive a fair trial. [67] As noted by Hardie Boys J in Martin v Tauranga District Court (supra) at [544], “the right is to trial without undue delay; it is not a right not to be tried after undue delay”. Result [68] The application for a stay is declined. B A Farnan District Court Judge

On a side note, Arden has ruined something for me forever. Every time I read the word perpetrator, I hear her saying poop-a-traitor.
you sure its not a pop a traitor ?
 

AnOminous

Really?
True & Honest Fan
Retired Staff
kiwifarms.net
Here is an example of a judgement on an application to dismiss based on delay. The important bit, “the right is to trial without undue delay; it is not a right not to be tried after undue delay”.
Is that even legal reasoning? It reads like babbling or a shitpost. That's nonsensical.

Wow, that's not even just some random judge's opinion. The other judge is quoting it.

How is the right to a speedy trial enforced if there are absolutely no consequences for not providing one? The reason it is enforced in the U.S. is that if you do not prosecute someone in a speedy manner, you don't get to do it. The judge doesn't notice you waited 10 years and say "lol whatever."

New Zealand judges suck and are a bunch of idiots.
 

Your Weird Fetish

Intersectional fetishist
kiwifarms.net
Is that even legal reasoning? It reads like babbling or a shitpost. That's nonsensical.

Wow, that's not even just some random judge's opinion. The other judge is quoting it.

How is the right to a speedy trial enforced if there are absolutely no consequences for not providing one? The reason it is enforced in the U.S. is that if you do not prosecute someone in a speedy manner, you don't get to do it. The judge doesn't notice you waited 10 years and say "lol whatever."

New Zealand judges suck and are a bunch of idiots.
These are the countries that were too weak to not just shoot the British until they went away.
 

Coleslaw

kiwifarms.net
Is that even legal reasoning? It reads like babbling or a shitpost. That's nonsensical.

Wow, that's not even just some random judge's opinion. The other judge is quoting it.

How is the right to a speedy trial enforced if there are absolutely no consequences for not providing one? The reason it is enforced in the U.S. is that if you do not prosecute someone in a speedy manner, you don't get to do it. The judge doesn't notice you waited 10 years and say "lol whatever."

New Zealand judges suck and are a bunch of idiots.
While I accept the situation Mr Bradshaw faces in this case is not ideal, ie, a Judge alone trial two years after the allegations were made, I consider his case has distinguishing factors which makes any delay, if undue (and I do not necessarily conclude it was undue in this case) not meeting the threshold of egregious.
But "undue delay" is the thing which the piece of paper you piss all over that you call a "constitution" is supposed to prevent, you moron.
 
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