Civil claim over Crown 'blunder'

JOHN KIRK-ANDERSON/STUFF

Crown prosecutor Pip Currie, pictured covering a separate court case, is in the High Court in Christchurch this week as a defendant in a civil case.

The Crown accepts it "blundered" with a 2009 trial, but a group suing for damages allege it acted with malice as part of a "win-at-all-costs" mindset.

The case arising from the Operation Rhino burglary, theft, and receiving trial has reached the High Court in Christchurch as a civil claim against the prosecutor, Pip Currie, and the Crown.

Five people who were defendants at the trial have taken the action, which is being heard before Justice Peter Churchward over the next eight or nine days.

The group alleges that information held by Currie about an inducement given to a key Crown witness to give evidence at the Operation Rhino trial was not disclosed to the court in spite of repeated defence requests.

Bringing the action are Vincent James Clayton, Linda Westbury, Peter Lloyd Machirus, Gary Morell, and Nadia Pelenato. They are representing themselves at the hearing.

Clayton presented the opening address in the case for himself and Westbury, who was his wife at the time.

He alleged there had been "deliberate, intentional, misleading and deceitful behaviour by Mrs Currie". The Christchurch Crown prosecutor at the time, Brent Stanaway, and the prosecutor's office, Raymond Donnelly and Co were "vicariously liable" for her actions, he alleged.

The defence had repeatedly tried to discover what "inducements" had been given to the Crown witness. He had received a "discount" on a sentence imposed in the Wellington District Court for the evidence it was anticipated he would give at the Operation Rhino trial.

He alleged Currie knew this because she had received the sentencing indication, but omitted to pass on the crucial information. She did not lead that evidence from witnesses and she did not refer to the benefit the witness was receiving in her closing address to the jury.

Clayton said he was convicted at the trial on 34 out of 114 charges and sentenced to five years' imprisonment with a non-parole term of three years, in November 2009. After he had spent 14 months in prison, the Court of Appeal ordered a retrial but the Crown offered no evidence and he was discharged on the remaining 34 charges.

"That removed my ability to prove my innocence," he told the hearing. "As of June 2018, the charges I faced and was acquitted of continue to hinder me in my day to day life."

The Crown prosecutor's deceit "struck at the heart of the criminal justice system and the integrity of it", he said. He alleged she had breached the tort of misfeasance – the wrongful exercise of public authority – and had breached his rights under the Bill of Rights.

He told Justice Churchward: "Her actions or inaction was deceitful and intentional and she acted with malice towards the defendants, win-at-all-costs being her mindset."

Machirus said he had been convicted on 20 out of 67 charges at the trial where Currie had misled the court by withholding information. He believed the Crown had colluded to put a "hocus-pocus" submission to the Court of Appeal.

For the Crown, John Pike QC said the judge in Wellington had taken it "on his own bat" to reduce the witness' sentence. It was a complex trial, "and all is not as it seems". The Crown, as much as the defence, had been in the dark when the judge's sentencing indication for the witness turned up.

The Wellington judge had even said the reduced sentence was not an inducement and would not be altered by the evidence the witness gave. It would not have affected the witness' mind in giving that evidence.

The Crown said the prosecutor's actions had been "an innocent blunder" and not an abuse of public office. It had always been acknowledged that the Crown made a mistake which ultimately cost it the case. In the aftermath, no further trial was held even though the Court of Appeal ordered one.

It was seen by the Court of Appeal as a blunder, but nothing beyond that. The prosecutor had no interest in convicting the defendants at the trial "any more than a Crown prosecutor has for any person before the courts", Pike said.

"Nothing marked these plaintiffs out for special attention," he said, indicated those taking the action in the High Court.

Giving evidence, Clayton said the group heard that the police operation had been called Operation Rhino. "We found later it was a reference to myself, made in poor taste."

The hearing is continuing.