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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…
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- AGLC
- Fa'avae v The Queen [2012] NZCA 528
- Case
- [2012] NZCA 528
- Decision Date
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Orders
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Background
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Evidence
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Decision
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