Criminal procedure – discharge of jury – abortion of trial – Police and Crown statutory disclosure obligations – Juries Act 1981, s 22

R v Timoti & Ors [2023] NZHC 2031 per Becroft J (redacted oral chambers judgment).

The defendants, Apisaloma Timoti, Sam Thomsen and Robin Leota, faced jury trial in the High Court at Auckland on charges of murder, wounding with intent to cause grievous bodily harm, being an accessory after the fact, and unlawful possession of a firearm.

It is alleged that on 23 December 2021, Thomsen and Timoti entered a dwelling house in Mt Roskill where Thomsen used a machete to wound Wiki Yelash and Jason Kupa. Timoti is alleged to have discharged a firearm deliberately or recklessly, killing one of the occupants of the premises.

At the pre-trial conference on 6 July 2023, defence counsel highlighted the difficulties with disclosure, which was said to be incomplete. Further concerns were raised before the trial by way of memoranda. At trial, before it commenced, the Crown, relying on the police, assured the court that disclosure was complete, subject to some minor outstanding matters.

However, during the trial, further evidence had been found and disclosed: 250 police photographs and two police notebooks from the officer in charge of disclosure and dealing with the deceased’s family, victims and complainants. One of the police photographs seemed to be of particular relevance, and 57 relevant pages of the second police notebook were said by the defence to be more than peripheral and insignificant.

On 31 July 2023, three days into evidence, defence counsel applied to have the trial aborted on the grounds the late disclosure meant there was a “reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances”, under s 22 of the Juries Act 1981. Defence counsel also said the volume of the material, some clearly germane to the defence, could not properly be absorbed in the time available.

Becroft J aborted the trial and discharged the jury, saying the trial had been “bedevillled by the grossly inadequate compliance by the police and the Crown” with their statutory disclosure obligations.

Applicable principles: Whether R v Bublitz [2017] NZHC 1059, in the context of a judge-alone-trial, set out the correct legal principles for the application to discharge the jury and abort the trial – whether there is a reasonable danger or reasonable apprehension of a miscarriage of justice in the circumstances – whether  the ongoing and “comprehensive” failure of disclosure obligations meets the test under s 22(3)(a) of the Juries Act 1981 as being a “casualty” – whether the certainty that an already scheduled jury trial would inevitably be cancelled meets the s 22(3)(a) test as being a “casualty” – whether the defendants will obtain a fair trial – whether volume of ongoing late disclosure too large – whether defence compromised – whether implications arising from the new evidence too significant – whether it is “highly expedient for the ends of justice” for the jury to be discharged.

Held: Jury discharged from delivering a verdict and trial aborted.

Hannah Hellyer is an Auckland criminal defence barrister and a member of the ADLS Criminal Law committee and Parole Law committee. 

R v Timoti & Ors [2023] NZHC 2031.