Biggs v Biggs - [2017] NZHC 2501

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-12652

[2016] NZHC 2501

THE QUEEN

v

DUSTIN LA MONT

Hearing: 19 October 2016

Appearances:

M Hammer for Crown

D Hoskin and K P Broshahan for Defendant

Judgment:

19 October 2016

(ORAL) JUDGMENT OF LANG J

[in relation to pre-trial issues]

R v LA MONT [2016] NZHC 2501 [19 October 2016]

[1] Mr La Mont is charged with murder. The Crown alleges that at around midnight on 1 December 2015 Mr La Mont fatally stabbed Mr Nathan Pukeroa. The Crown also alleges that in the same incident he wounded Mr Devaray Junior Cole- Kavarji with intent to cause him grievous bodily harm. Mr La Mont’s trial is due to commence on 25 October 2016. The purpose of this judgment is to record rulings I have made in anticipation of trial.

Application by Crown for a direction that the jury view the scene where the incident occurred

[2] The Crown applies for a direction that the jury be taken to view the scene where the incident giving rise to the charges occurred. This is a residential street in Mt Albert. The Crown submits that the jury will benefit for several reasons from viewing the scene. In particular, they will be able to place items and objects in and around the scene in proper context. The defence joins with the Crown in advancing the application.

[3] I consider this application needs to be dealt with by the trial Judge based on her appreciation of the benefits that might flow from a view of the scene. Experience has shown that such exercises are fraught with difficulty and need to be carefully managed if they are to be successfully undertaken. Generally speaking, a view will not assist a jury to have a significantly greater appreciation of a scene than will be the case from viewing photographs and plans of the scene.

[4] In the present case the focus of the jury will be on an incident that occurred outside 21 Renton Street, Mt Albert. The issue will be whether the Crown can prove that Mr La Mont stabbed the two victims with the necessary intent to commit the crime of murder. The defence will be self-defence. In those circumstances it is difficult at first blush to see how a view of the scene could advance matters further.

[5] At this stage I decline to deal with the application. Counsel may renew it before the trial Judge at a suitable point in the trial once the Judge has had an opportunity to acquaint herself with the facts of the case.

Application by defence for an order requiring the Crown to call a witness

[6] Counsel for Mr La Mont seeks an order under s 113 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Biggs v Biggs

Details

AGLC: Biggs v Biggs [2016] NZHC 2501
Case: [2017] NZHC 2501
Decision Date: 19 October 2016

CaseChat Overview and Summary

In this case, the defendant Dustin La Mont is charged with the murder of Nathan Pukeroa and the wounding of Devaray Junior Cole-Kavarji with intent to cause grievous bodily harm. The Crown has applied for a direction that the jury view the scene of the incident, while the defence has sought an order requiring the Crown to call a witness. Additionally, the defence has applied for an order declaring certain text messages admissible and for excisions from a DVD interview. The court has also been asked to exclude certain portions of text messages and to allow psychological evidence for the defence.

The court has declined to deal with the application for the jury to view the scene, considering it a matter for the trial judge. Regarding the defence's application for an order requiring the Crown to call a witness, the court has ruled that the Crown is to call Ms A as a witness for the Crown due to her potential hostile attitude towards the defence and the difficulty in locating her. The court has ruled that certain text messages are admissible as they may provide a motive for the deceased and Mr Cole-Kavarji to confront Mr La Mont. The court has also ruled that certain portions of the DVD interview and text messages are inadmissible due to their irrelevance to the issues the jury needs to decide. Finally, the court has ruled that the use of the words "fucking animals" in certain text messages is inadmissible as they are ambiguous and too remote from the events of the evening in question.

In summary, the court has made several rulings in anticipation of the trial, including ordering the Crown to call a witness, allowing certain text messages to be admissible, and excluding certain portions of the DVD interview and text messages. The application for the jury to view the scene has been declined, pending further consideration by the trial judge.

Orders