Nuku v Attorney-General - [2020] NZCA 476

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA495/2019
[2020] NZCA 476

BETWEEN	KARL NUKU Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Courtney and Collins JJ
Counsel:	Applicant in person S M Kinsler and S K Shaw for Respondent
Judgment: (On the papers)	7 October 2020 at 11.30 am

JUDGMENT OF THE COURT

The application to adduce further evidence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Mr Nuku applies to adduce further evidence in relation to an appeal against a judgment in which Churchman J declined Mr Nuku’s application for judicial review.[1] The appeal is set down to be heard on 26 November 2020.

Background

[1]Nuku v Attorney-General [2019] NZHC 2309.

Mr Nuku is serving a sentence of life imprisonment. His judicial review proceeding against the Attorney-General relates to a visit to his cell in Pāremoremo Prison on 4 June 2014 while he was away standing trial on charges for aggravated robbery and unlawful possession of firearms. He alleges that a Department of Corrections employee, Ms Temm, and a police officer, Detective Reid conducted a search of his cell. Both gave evidence in the High Court judicial review hearing, explaining that they briefly entered and observed Mr Nuku’s cell as part of a tour of the prison.[2] Churchman J concluded that there was no unlawful search carried out. Mr Nuku’s application for judicial review was therefore dismissed.
[2]At [56] and [67].
The alleged search had already been raised in this Court in 2016 by Mr Nuku on appeal from the convictions for aggravated robbery and unlawful possession of firearms that followed his 2014 trial. This Court observed that:[3]
[98] Mr Nuku complains that an officer involved in the investigation and who was in Court throughout the trial, visited the prison where Mr Nuku was housed and was shown through Mr Nuku’s cell at the prison. This visit occurred while Mr Nuku was at Court attending his own trial. Mr Nuku concedes that he cannot say that these events affected or compromised his right to a fair trial. The actions of the police officer cannot therefore provide a ground of appeal. Mr Nuku should pursue his concerns regarding this conduct through appropriate avenues, as was discussed at the hearing.

The application to adduce further evidence

[3]Nuku v R [2016] NZCA 179.

Mr Nuku wishes to adduce evidence on appeal of:
(a)the transcript of the appeal hearing at this Court in 2016; and
(b)further cross-examination of Detective Reid.
The transcript includes discussions between this Court, Mr Nuku, and Crown counsel about the appropriateness of a police officer entering Mr Nuku’s cell and whether this could have risked the outcome of the 2014 trial.
Mr Nuku intends to cross-examine Detective Reid in respect of his purpose for being at the prison on the day of the visit and inconsistencies with the evidence given by Ms Temm.

Analysis

This Court can admit further evidence on appeal under r 45 of the Court…

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.

Keep reading for free

Create a free CaseChat account to read Nuku v Attorney-General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZCA 476
Decision Date: 7 October 2020 at 11.30 am

CaseChat Overview and Summary

Karl Nuku has appealed against a decision of the High Court declining his application for judicial review. The appeal relates to an alleged unlawful search of Nuku's cell in Pāremoremo Prison on 4 June 2014, while he was standing trial for aggravated robbery and unlawful possession of firearms. Nuku alleges that a Department of Corrections employee and a police officer conducted a search of his cell during the visit. The High Court found that no unlawful search was carried out and dismissed Nuku's application for judicial review. Nuku now seeks to adduce further evidence in his appeal, including the transcript of a previous appeal hearing and further cross-examination of a police officer.

The court was required to decide whether the proposed further evidence was fresh, credible and cogent, as required under the Court of Appeal (Civil) Rules 2005. The court found that the transcript of the previous appeal hearing was not fresh, credible and cogent, as it did not assist in determining the issues in this appeal. The court also found that further cross-examination of the police officer was unlikely to assist in determining the appeal, as any inconsistencies in his evidence at trial could be addressed through submissions. The court declined Nuku's application to adduce further evidence.

The court's reasoning was that the evidence proposed by Nuku did not meet the requirements of being fresh, credible and cogent. The transcript of the previous appeal hearing did not assist in determining the issues in this appeal, as the issues in this appeal were different from those in the previous appeal. The further cross-examination of the police officer was unlikely to assist in determining the appeal, as any inconsistencies in his evidence at trial could be addressed through submissions. The court declined Nuku's application to adduce further evidence.

The final orders of the court were that the application to adduce further evidence is declined. Nuku's appeal against the High Court decision will proceed with the evidence that has already been adduced.

Orders