Fa'avae v The Queen - [2012] NZCA 528

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA6/2012 [2012] NZCA 528

BETWEEN PETANI FA'AVAE Appellant

ANDTHE QUEEN Respondent

Hearing: 23 and 24 August 2012

Court: White, Heath and Andrews JJ

Counsel: G M Illingworth QC, A G V Rogers and F J Scott-Milligan for
Appellant
R J Collins for Respondent

Judgment: 13 November 2012 at 11.30am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe conviction is quashed and the case is remitted to the High Court for a retrial.

COrder 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 retrial.
Publication in law report or law digest permitted.

FA'AVAE v R COA CA6/2012 [13 November 2012]

REASONS OF THE COURT

(Given by White J)

Table of Contents

Para No Introduction [1] Background [5] The trial [7] The Crown opening [7]

The text message evidence – cross examination [16] Text message evidence – the Judge’s ruling [20] The Crown closing [22] Chambers discussion [25] The Judge’s direction [31] Defence closing [33] Summing up [38]

Issues  [40] Prosecutorial Errors  [43] Error 1: Change to the Crown case  [45]
Error 2: Submission not supported by the evidence  [58] Error 3: Breach of the Judge’s ruling?  [61] Was the prosecutor’s conduct justified by the failure of the
defence to cross-examine on who the hood text message
referred to?  [69]

Were the problems in the prosecutor’s conduct cured by the
Judge’s direction? [73]

Unfair trial or miscarriage of justice? [87] Conclusion [90] Result [91]

Introduction

[1] Petani Fa’avae appeals against his conviction for murder following a jury

trial in the High Court in Auckland in May 2011.

[2] The principal ground of appeal is that Mr Fa’avae did not receive a fair trial

because a text message that the trial Judge had ruled inadmissible as evidence

against him1 was referred to by the Crown prosecutor in his closing address to the jury as evidence relating to Mr Fa’avae’s role in the events leading up to the murder. It was submitted for Mr Fa’avae that a subsequent direction by the trial Judge to the jury that the text message was admissible only against one of the co-accused, Mr Eneasi Finau, and was not evidence against Mr Fa’avae, did not cure the prosecutorial error.

[3] It was submitted for the Crown on appeal that there was no prosecutorial error and that, if there was one, it was cured by the Judge’s direction. It was also submitted that there was in any event no miscarriage of justice.

[4] In order to address the issues raised in this appeal it is necessary first to…

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 Fa'avae v The Queen

Details

AGLC: Fa'avae v The Queen [2012] NZCA 528
Case: [2012] NZCA 528
Decision Date: 13 November 2012

CaseChat Overview and Summary

The appellant, Petani Fa'avae, appeals against his conviction for the murder of the deceased, Mr Tue Fa'avae. The principal ground of appeal is that the appellant did not receive a fair trial because the prosecutor referred to an inadmissible text message in his closing address to the jury. The Crown submits that there was no prosecutorial error and that, if there was one, it was cured by the Judge's direction. The Court of Appeal finds that the prosecutor made three serious errors in his closing, namely changing the Crown case, making a submission not based on the evidence and breaching the Judge's ruling. The seriousness of the prosecutor's errors made the trial unfair. The unfairness could not be cured by a direction because of the importance of the evidence in the context of a relatively weak Crown case and the very late stage at which the errors occurred. The appeal is allowed. The conviction is quashed and the case is remitted to the High Court for a retrial.

Orders