Award of costs – disclosure obligations – procedural failures – s 364 Criminal Procedure Act 2011- fair trial rights – murder
R v Johnson & Anor  NZHC 2948- per Ellis J
Joseph Johnson, Chea Hemara and William Hines were charged with the 2017 murder of Palmiro MacDonald (a patched member of the Nomads gang). The criminal proceedings had an inter-gang backdrop which was littered with issues about witness anonymity and prison informants. The police investigation into MacDonald’s disappearance and death led to significant disclosure problems which gave rise to an application for costs from Hemara’s defence counsel. Ellis J directed that the application could be dealt with after trial.
In August 2018, the charge against Hines (an associate of the Head Hunters) was dropped and the eight-week trial of Johnson and Hemara (another Head Hunters associate) began in mid-2019. It produced a hung jury and a retrial was ordered. However, before this could take place, both Johnson (a patched Mongrel Mob member) and Hemara were discharged and the trial was abandoned.
Defence then raised another costs application as a result of further disclosure issues, including in relation to the events that led to the dismissal of the charge.
In the judgment, Ellis J reiterates that prosecutorial disclosure is linked to fair trial rights and a person accused of a crime must know the nature and extent of the allegations against him or her in order to mount an adequate defence. Therefore, disclosure engages the rights set out in ss 24(d) and 25(a) of the New Zealand Bill of Rights Act 1990 (BORA). The fair trial right contained in s 25(a) is absolute and cannot be subject to reasonable limitation under s 5 of BORA.
This matter had several disclosure delays. In the early stages, a trial was set down for February 2018 and a direction was given by the judge that disclosure was to be done by 21 August 2017. The February trial date was no longer viable and a new fixture was set for 30 April 2018. Between 7 August and 25 August 2017, Johnson received a further seven Eastlight folders of telco data and Hemara received two tranches of disclosure of approximately 14,000 pages. Direction was given on 28 August 2017 for the Crown to file all formal statements 15 days before the pre-trial hearing on 21 November 2017. On 27 October 2017, the Crown made applications for anonymity orders concerning the proposed witnesses known as witnesses A, B, C and D.
On 23 November 2017, the judge appointed independent counsel, Mark Corlett KC, to assist with the anonymity application and to review the redactions. Corlett was given approximately 2,000 pages in two Eastlight folders, together with a USB. He found 69 potentially relevant documents in areas of interest to defence counsel. On 20 November 2018, it was directed that by the end of the month, the Crown was to speak to police and advise all counsel whether there would be any further disclosure of significance before the trial. On 30 November 2018, the Crown advised it was not anticipated there would be any further disclosure of significance before trial.
On 6 February 2019, counsel for Johnson filed a memorandum seeking a further trial adjournment as there were continued disclosure failings. This application was supported by counsel for Hemara.
On 13 February 2019, 10 days from trial, it was raised that disclosure had been provided in a non-searchable format. This led to a further adjournment of the trial to 4 June 2019. This trial proceeded but ended in a hung jury. A re-trial date was set for 27 October 2020.
On 30 July 2019, counsel for Johnson sought a direction that the raw telco data (phone material) should be disclosed in a format which was useable and identified attribution and content of the texts. The judge had already ordered for this material to be provided to the defence but by 18 December that still had not happened.
When this data was finally received, there were undisclosed facts in relation to witness A’s evidence. Witness A was a police informant at the same prison as Hemara who made reference to his and Johnson’s part in the murder. It was apparent from this data that witness A was giving information based on receiving a letter of assistance for his upcoming sentencing (he got a 40% discount on what he would otherwise have received). The motive for witness A making the statement was not revealed.
At the pre-trial hearing on 18 April, a detective was made available by the Crown for cross-examination. He confirmed that witness A had been provided with a letter of assistance in exchange for being a witness. As a result of this, documents were redacted mid-hearing to remove witness A’s name. But witness A’s name was not redacted in his sentencing notes and on the detective’s handwritten notes. It was acknowledged under cross examination that the letter of assistance was not disclosed to Corlett or to defence counsel.
On 4 May the first application of costs was made for Hemara. By this point the Crown had dismissed charges against Hine and Hemara. The date for Johnson’s retrial was 28 October 2020. The Crown was not willing to jeopardise witness A’s anonymity but accepted without this information, Johnson could not have a fair trial. This resulted in the murder charge against Johnson being dismissed for procedural failure.
The application for costs was granted. The police and Crown prosecutor were ordered to pay $20,000 each, with the order made in favour of Johnson and Hemara equally. The judge made a permanent name suppression order for witness A.