By Anna Longdill
Application by the Crown for leave to appeal against District Court decision staying prosecution on basis of undue delay or abuse of process – Criminal Procedure Act 2011, s 296; New Zealand Bill of Rights Act 1990, s 25(b) – five-year delay from charge to stay of proceeding (no trial date in sight) – is it in the interests of justice for leave to be granted to appeal?
R v X [2024] NZCA 603
Mr X and Brent Wall were jointly charged with obtaining and/or causing loss by deception in relation to the alleged fixing of race six at the Manawatu Harness Racing Club Inc race meeting held on 22 May 2018.
The Crown case was that X conspired with Wall, a part-owner of the horse Sportcaster, to ensure that Sportscaster won the race. X and Wall obtained $4,560 of winning stakes in that race.
The charges against X and Wall followed a broader police investigation into alleged race fixing, illegal betting and other corrupt activities in the harness racing community.
Initially, in 2018, charges were laid against more than a dozen defendants. The Crown filed further charges in March and April 2020. Most of the charges were later dismissed or withdrawn. By 2022, only three defendants (including X and Wall) faced charges. At that point, X and Wall faced a range of match-fixing charges, drug offences and charges relating to betting.
Progress towards resolving X and Wall’s charges was slow. Applications to dismiss charges under s 147 Criminal Procedure Act 2011 were heard in May 2020 but the decision determining them was not delivered until February 2022, with the reasons following in March 2022.
A trial date for the match fixing charges was scheduled for August 2023, but this had to be adjourned because a review of surveillance device warrants by amicus was not completed until September 2023.
X and Wall applied to the District Court to stay the proceedings permanently on the grounds of undue delay and/or abuse of process.
In November 2023, Judge Crosbie granted the stay applications on the basis that, given the five-year delay since charges were first laid, the only appropriate remedy was a stay of proceeding.
The judge made a separate finding that the proceeding amounted to an abuse of process (independently of the delay) and he would have stayed it on that basis as well.
The Crown applied for leave to appeal the judge’s decision on a question of law. The Crown argued that X and Wall could still have a fair trial and so a stay was not the appropriate remedy. The defence argued that leave should not be given as the prospects of success on appeal were remote and the judge’s findings were highly evaluative and the result of a lengthy and well-reasoned decision.
Applicable principles: Criminal Procedure Act 2011, s 296; New Zealand Bill of Rights Act 1990, s 25(b) – has the Crown raised a question of law in respect of which leave could be given? (yes, the issue of whether the judge overlooked relevant factors in assessing the seriousness of the offence, specifically the significance of corruption in the harness racing industry) – is it in the interests of justice for leave to be granted to appeal? (no, the delay is very long, is not of X and Wall’s making, and would be extended by an appeal, the prospects of success for which are limited)
Held: The application for leave to appeal is declined.
Note: The court observed that it was not seriously suggested that X and Wall would not be able to have a fair trial. But in the circumstances, it was not in the interests of justice for leave to be granted to appeal:
[40] … To allow a prosecution to proceed after so long, on a single charge against each respondent for which the penalty is likely to be modest is not, in our view, a reasonable response or adequate recognition of their right to be tried without undue delay.
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