R v Hamilton-Williams

[2012] NZHC 3145

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-085-316 [2012] NZHC 3145

THE QUEEN

v

DAVID GRAYSON HAMILTON-WILLIAMS

Hearing:         On Papers

Counsel:         T J Gilbert for Crown

G B Gimblett for Accused

Judgment:      23 November 2012

JUDGMENT OF RONALD YOUNG J

[1]      The Crown apply for written consent pursuant to s 345(3) of the Crimes Act 1961 to file an indictment in the High Court relating to Mr Hamilton-Williams and the events of 27 January 2012.

[2]      Currently  Mr Hamilton-Williams  faces  two  charges  in  the  District  Court arising from the events of that day; a breach of a protection order; arson; an aggravated burglary pursuant to s 232(2) of the Crimes Act 1961.

[3]      The purpose of the application under s 345(3) of the Crimes Act 1961 is to lay an indictment that  will include a charge of aggravated burglary contrary to

s 232(1)(b) of the Crimes Act 1961.

R V DAVID GRAYSON HAMILTON-WILLIAMS HC WN CRI 2012-085-316 [23 November 2012]

[4]      As the Crown identifies there are two procedural routes open to the Crown by which it can include what it considers to be the appropriate charge in the indictment. They are:

(a)       firstly an  application  under s 345(3) of  the Crimes Act 1961  (this application); or

(b)an application to transfer the proceedings to the High Court under s 28J of the District Courts Act 1947.

[5]      As the Crown identify the advantage of this application is that it preserves the ability of this Court to middleband the matter back to the District Court should that be considered appropriate.

[6]      The  application  has  been  referred  to  counsel  for  the  accused.    Counsel

advises that he “cannot responsibly oppose the application”.

[7]      A charge under s 232(2) of the Crimes Act 1961, the current charge, involves

an allegation that a person is “armed with a weapon with intent to commit burglary”.

[8]      The  Crown  say  the  facts  of  this  case  involve  an  accused  committing  a burglary and being in possession of a weapon.   The appropriate charge, in those circumstances, is one pursuant to s 232(1)(b) which alleges “that an accused person having committed a burglary has a weapon with him while still in the building”.

[9]      Such  a  charge  of  aggravated  burglary  (under  s 232(1)(b)  of  the  Crimes Act 1961) can only be tried in the District Court after a middleband decision of this Court.   And so it is not open to the Crown currently to include a charge under s 232(1)(b) in the indictment which is currently in the District Court.

[10]     I am, therefore, satisfied the application by the Crown should be granted.  I note there is concern about the accused’s sanity at the time of the commission of the offending and it may be that depending upon the evidence a hearing will be required to resolve that issue.

[11]     However, having granted the application under s 345(3) to file an indictment in the High Court including a charge of aggravated burglary under s 232(1)(b) of the Crimes Act 1961, I need to consider whether or not I should retain this trial in the High Court or transfer it to the District Court.

[12]     Having taken the chance to consider the facts and other relevant statutory matters, I am satisfied that this is a matter that can properly be dealt with in the District Court.

[13]     I, therefore, transfer the hearing of this case for trial in the District Court subsequent to the granting of leave under s 345(3) of the Crimes Act 1961.

Ronald Young J

Solicitors:

T J Gilbert, Luke Cunningham & Clere, Wellington, email:  [e-mail]
G B Gimblett, Barrister, Porirua, Wellington, email:  [e-mail]