KA v The Queen
[2012] NZSC 113
•11 December 2012
| NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. |
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 40/2012 [2012] NZSC 113 |
| KA |
| v |
| THE QUEEN |
| Court: McGrath, William Young and Chambers JJ |
| Counsel: R A A Weir for Applicant |
| Judgment: 11 December 2012 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
REASONS
The applicant seeks leave to appeal against his conviction on a charge of sexual violation by rape.
The notice of application for leave to appeal identified one ground, namely that the applicant had been wrongly tried with his brother. Mr Weir, for the applicant, submitted that only the Crown could apply for joinder under s 345D of the Crimes Act 1961, but in this case it was the applicant’s trial counsel, Mr Munro, who had successfully applied for joinder. Mr Weir submitted that made the trial “a nullity”.
The Court of Appeal rejected a similar argument.[1] But there was some confusion at the time of the Court of Appeal hearing as to what exactly had happened in the District Court prior to the commencement of the trial. Because of that confusion, we obtained from the trial Judge a report as to what had taken place. In light of that report and verbatim transcripts obtained from the District Court, it is now quite clear what occurred.
[1] KA v R [2012] NZCA 183.
The Crown had applied for joinder so that the two brothers would be tried together. The applicant’s then counsel, Mr Tait, opposed that application. Judge Perkins rejected it and ordered instead that the two brothers be tried one after the other.[2] Shortly before the trials were to start, Mr Tait had to bow out and the brief was passed to Mr Munro. Mr Munro considered there would be advantages to the applicant if he were to be tried with his brother. Mr Munro raised this with the Crown, the brother’s lawyer and the Court. Judge Aitken made an order for joinder on 11 October 2010.[3] The transcript reveals that Judge Aitken was alive to the fact that under s 345D it was the Crown which needed to renew its application for joinder, an application to which Mr Munro consented.[4] The proposed ground of appeal accordingly has no chance of success as it is based on an incorrect factual premise. It is quite true that it was Mr Munro who suggested a revisiting of the question of joinder but it was the prosecutor who suggested the joinder be dealt with by way of “adding the name” of the new accused to the indictment under s 345D(2). And so it was dealt with.
[2] R v A DC Auckland CRI-2008-004-8269, 20 May 2010.
[3] R v A DC Auckland CRI-2008-004-8269, 11 October 2010.
[4] The brother’s lawyer did not oppose, adopting the same stance as he had before Judge Perkins.
Mr Weir in his submissions also questioned whether Mr Munro had, at the time consent to joinder was given, actually met the applicant and obtained his instructions. Again, although the evidence before the Court of Appeal on this topic was equivocal, the Court concluded that, by the time of the joinder discussion before Judge Aitken, “Mr Munro had obtained the appellant’s instructions to follow his recommendation and agree to a joint trial”.[5] On the basis of the further information now obtained, it is quite clear that the Court of Appeal’s conclusion on this topic was correct. Mr Munro had spent considerable time with the applicant in the court cells and had obtained his written instructions to consent to joinder before Judge Aitken heard from counsel on the joinder question and delivered her ruling.
[5] At [18].
The applicant has not satisfied us that it is necessary in the interests of justice for this Court to hear and determine the proposed appeal. No miscarriage of justice occurred from the way in which the joinder application was dealt with. In light of that, we dismiss the application for leave to appeal.
Solicitors:
Crown Law Office, Wellington, for Respondent
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