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)

1. 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.

1. 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].

2. 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.

1. 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.

2. 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. 

3. 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

1. This Court can admit further evidence on appeal under r 45 of the Court of Appeal (Civil) Rules 2005.  In order to be admitted, the Court must be satisfied that the evidence is fresh, credible and cogent.[4]  Mr Nuku maintains that the threshold is met in respect of both the hearing transcript and calling Detective Reid to give evidence. 

   [4]Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1; and Erceg v Balenia Ltd [2008] NZCA 535 at [15].

2. Mr Nuku submits that the transcript demonstrates that his concerns about the visit are not “mere rhetoric” but have been “somewhat endorsed by the Senior Members of the Justice System” and while it is not “fresh”, diligent attempts to obtain it before the High Court hearing failed.  The Attorney‑General accepts that the transcript is fresh and credible, but questions its cogency.  The discussion between this Court, Mr Nuku and Crown counsel in the context of a different, albeit related, appeal will not be of any assistance in determining this appeal. 

3. We agree with the Attorney‑General that the transcript should not be adduced on appeal.  The comments made in this Court were made in the context of whether the visit to Mr Nuku’s cell had any merit as a ground of appeal in his conviction appeal.  The issues to determine in this appeal are different.  The transcript has no probative value.

4. Cross-examining Detective Reid on appeal would, Mr Nuku submits, provide this Court with the opportunity to evaluate inconsistencies in his evidence at the High Court hearing and determine his purpose for being at the prison on the day of the visit.  This evidence would support a finding that Detective Reid was carrying out an unlawful search of Mr Nuku’s cell.  The Attorney-General argues that it is not necessary to cross-examine Detective Reid as any inconsistency in his evidence with other witnesses at trial are merely an incident of difference in recollection, rather than a controversial issue to ventilate on appeal. 

5. Mr Nuku is in effect asking to recall Detective Reid as a witness in this Court to clarify matters he gave evidence on at trial.  While some latitude could be afforded to him as a self-represented litigant, the evidence is not fresh.  Submissions can be made on any inconsistencies in the evidence at trial.  Cross‑examination of Detective Reid is unlikely to assist this Court in determining Mr Nuku’s appeal.

Result

1. The application to adduce further evidence is declined.

Solicitors:
Meredith Connell, Wellington for Respondent