December 24 2021
Two assailants burst into a Mt Roskill house and shot dead a young man and attacked two others with a machete. Video: NZ Herald / Hayden Woodward
The trial of three men accused of murdering young Auckland barber Brian James in a Mt Roskill home invasion in 2021 has been aborted after just a few days of evidence because of a failure by police to disclose evidence to the defence.
Justice Andrew Becroft ended the trial on Monday on what was meant to be the start of its second week. The Crown was partway through its case.
On Friday, he released a damning judgment setting out his reasons for aborting the trial and discharging the jury.
“This trial has been bedevilled by grossly inadequate compliance by the police and the Crown with their statutory disclosure obligations,” Justice Becroft said.
Disclosure is a fundamental part of criminal trials. Failures by police to disclose evidence or information they held have been implicated in several high-profile mistrials or miscarriages of justice.
The prosecution is required by law to disclose to a defendant all evidence against them and other relevant information held by police, including witness statements, lists of exhibits, photos of the scene, 111 call recordings, prior convictions of witnesses an various other materials.
A recent High Court practice note describes disclosure as an integral part of any investigation and prosecution.
“It ensures a fair and transparent process and is a vital safeguard against miscarriages of justice,” the memo says.
Justice Becroft said that on Wednesday, July 26, a couple of days into the trial, it emerged 250 police photographs had been found and disclosed that day.
Crown prosecutor Sam McMullan concluded a key witness would need to be recalled and the new evidence put to her.
McMullan escapes criticism in the judgment. He admitted his assurances regarding disclosure proved hollow, but could do no more than rely on what he was told by the detective running the case and the officer in charge of exhibits, the judge said.
Justice Becroft lays the blame for the disclosure failures squarely at the feet of police. McMullan conducted himself in a way that was “consistent with the highest obligations of officers of this court”, Justice Becroft said.
“I cannot help but observe, and I say this as fairly and transparently as I can, that this is a case where police statutory disclosure obligations have fallen significantly and apparently consistently short of the mark,” Justice Becroft said.
“It is a matter of real concern. The defendants here, each of them, face the highest and most serious charge known to the criminal calendar.”
Accused of the murder of Brian James in Mt Roskill two days before Christmas in 2021 are (from left) Apisaloma Timoti, Angelo Junior Thomsen and Robin Leota, on trial in the Auckland High Court from Monday. Photos / George Block
On Friday the judge concluded that, once the extent of the disclosure failures had become clear, any further disclosure “would put the trial at severe risk”.
Along with the photographs, a detective’s notebook had been disclosed as late as last Thursday morning.
Then, in addition to that notebook, it emerged there was another notebook which had recently gone missing but had been found and was made available to the defence on Monday morning.
Justice Becroft described the disclosure failures as comprehensive. He said the volume of ongoing late disclosure was too large, the defence was clearly compromised and the disclosure issues would form an obvious appeal point if the men were convicted.
“The implications arising from the new evidence are too significant.”
Justice Becroft discharged the jury at 2.15pm on Monday, and aborted the trial, which will need to be rescheduled.
“In this context, it is virtually the ultimate sanction for police disclosure failures,” the judge said.
When the trial started, it was one of four ongoing murder trials in the Auckland High Court.
James, 23, died from a gunshot wound to the chest after two men burst into his house on December 23, 2021.
The Crown claims Apisaloma Timoti fired the fatal shot, either deliberately or recklessly. He is accused of murder alongside Angelo Junior Thomsen and Robin Leota.
Their trial in the High Court at Auckland began last week, with the trio entering not guilty pleas to all charges, watched by a packed public gallery.
Timoti, Thomsen and Leota are all jointly charged with murdering James.
They are also jointly charged with wounding two other men in the home with intent to cause grievous bodily harm.
Leota is charged with helping Thomsen evade arrest after the killing and unlawful possession of a shotgun.
Justice Andrew Becroft warned the jury it would be a long and demanding trial.
The six men and six women were set to hear from dozens of witnesses, including neighbours, medical specialists, scientists, police officers, detectives, and an expert in blood spatter and bullet trajectories.
