Deliwala-Gedara v The Queen

[2021] NZCA 361

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA259/2021
 [2021] NZCA 361

BETWEEN	SENITH DEELAKA MUNASINGHE DELIWALA-GEDARA Appellant
AND	THE QUEEN Respondent

Court:	Miller, Thomas and Wylie JJ
Counsel:	A S Olney for Appellant S E Trounson for Respondent
Judgment: (On the papers)	30 July 2021 at 10.00 am

JUDGMENT OF THE COURT

AThe application for extension of time to bring a second appeal is granted.

BThe application for leave to bring a second appeal is granted in part.

CThe approved question is whether the High Court erred in allowing the Crown to adduce further evidence after the Crown had closed its case.

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REASONS OF THE COURT

(Given by Thomas J)

1. Following a Judge-alone trial in the District Court, Mr Deliwala-Gedara was found guilty and convicted on 13 charges under s 131A(1) of the Films, Videos, and Publications Classification Act 1993.[1]  The High Court dismissed Mr Deliwala-Gedara’s appeal against conviction.[2]  He now seeks leave to bring a second appeal on the following two grounds:

   (a)whether the District Court Judge erred in allowing the Crown to adduce further evidence after the Crown had closed its case; and

   (b)whether Mr Deliwala-Gedara’s video statement to the police should have been admitted in evidence when the High Court concluded it was improperly obtained.

   [1]R v Deliwala-Gedara [2020] NZDC 21197.

   [2]Deliwala-Gedara v R [2021] NZHC 570 [High Court judgment].

2. Mr Deliwala-Gedara’s notice of application for leave to appeal was filed 13 days out of time.[3]  The delay is minor and no prejudice arises.  We grant an extension of time accordingly.

   [3]Criminal Procedure Act 2011, s 239(2).

3. We grant leave on the first ground.

4. The background to the second ground is that Mr Deliwala-Gedara had been arrested for blackmail and agreed to a police interview in that context.  In the District Court, Judge Hobbs ruled that his DVD interview had not been improperly obtained and was admissible as evidence in the trial alleging he knowingly possessed objectionable publications.[4]  In the High Court, Gendall J accepted, by a narrow margin, that Mr Deliwala-Gedara was improperly cautioned and thus the evidence improperly obtained.[5]  However, he was satisfied the evidence was nevertheless admissible under s 30 of the Evidence Act 2006.[6]

   [4]R v Deliwala Gedara [2020] NZDC 21565.

   [5]High Court judgment, above n 2, at [28].

   [6]At [33].

5. This Court must not grant leave unless it is satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[7]  The test is a high one and not every error will create a risk of miscarriage.[8]

   [7]Criminal Procedure Act, s 237(2).

   [8]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

6. We do not consider any question of general or public importance arises in the second ground of appeal.  The ground is fact-specific and does not engage any broader principle that might justify the granting of leave.  Nor is there any risk of a miscarriage of justice if leave is declined on the second ground.  There was no discernible error in the High Court decision.

Result

1. The application for extension of time to bring a second appeal is granted.

2. The application for leave to bring a second appeal is granted in part.  The approved question is whether the High Court erred in allowing the Crown to adduce further evidence after the Crown had closed its case.

Solicitors:
Crown Law Office, Wellington for Respondent