Kem Samy v The Queen

The Supreme Court of New Zealand was asked to consider an application from Kem Samy to appeal against a decision of the Court of Appeal. The Court of Appeal had dismissed an appeal that Mr Samy had lodged against his conviction in 1994 for the crime of rape. Mr Samy was appealing on the basis that a miscarriage of justice had occurred because of trial counsel’s failure to call medical evidence to explain Mr Samy’s medical condition at the relevant time. Mr Samy had been required to leave New Zealand upon the completion of his sentence of imprisonment. He was not present at the Court of Appeal hearing, but was represented by counsel. The Court of Appeal dismissed the appeal and provided reasons on 23 April 2007.

The key legal issue before the Supreme Court was whether Mr Samy should be granted leave to appeal against the decision of the Court of Appeal. The Court considered whether Mr Samy had provided a tenable ground for appeal that would meet the statutory requirements for the granting of leave to appeal. The Court noted that Mr Samy had been represented by counsel at the Court of Appeal hearing, but had failed to attend for cross-examination on the day of the hearing. The Court considered the material on the record and concluded that the appeal had no chance of succeeding. The Court also noted that Mr Samy had failed to obtain legal representation and file written submissions in support of his application for leave to appeal.

The Supreme Court dismissed Mr Samy’s application for leave to appeal. The Court emphasised that the dismissal was not an indication of the merits of Mr Samy’s case, but rather a procedural decision. The Court noted that Mr Samy might, in the future, be able to show that there are exceptional circumstances that warrant reopening by the Court of Appeal of its judgment. However, the Court emphasised that it would not be prudent for Mr Samy to attempt this course until such time as he was able to obtain legal representation and mount a proper basis, if he can, for such an application.

The Supreme Court did not make any orders in relation to the dismissal of the application for leave to appeal.