Nuku v R - [2018] NZSC 96

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 65/2018
[2018] NZSC 96

BETWEEN	KARL TEANGIOTAU NUKU Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person J A Eng for Respondent
Judgment:	17 October 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The background

By a minute of 14 April 2016,[1] Winkelmann J declined the applicant’s request for a transcript of the hearing in the Court of Appeal on 9 March 2016 of his appeal against conviction and sentence for aggravated robbery and unlawful possession of firearms.[2] She recorded that the applicant wished to have a transcript “for his own records and to assist him in his research and studies”. Transcripts of hearings in the Court of Appeal are not prepared as a matter of course, and she did not see the reasons advanced by the applicant as warranting a direction that a transcript be prepared.
[1]Nuku v R CA7/2015, 14 April 2016 (Minute of Winkelmann J).
[2]Nuku v R [2016] NZCA 179.
The applicant subsequently applied again for a transcript. By this stage, his reason for seeking a transcript of the hearing was that he wished to use the transcript for the purposes of prosecuting complaints or proceedings associated with alleged wrongdoing by prison and police officers at Paremoremo Prison. This application was rejected by Winkelmann J in a minute of 24 October 2017.[3] She was of the view that the applicant’s reason for seeking a transcript was not sufficient as the ability of the applicant to advance his complaints was not materially affected by him having (or not having) a transcript.
[3]Nuku v R CA7/2015, 24 October 2017 (Minute of Winkelmann J [No 2]).
What appears to have been a third application for a transcript was dealt with (and refused) by French J in a handwritten note of 12 June 2018. The applicant then wrote to the Court complaining of this decision, prompting a second minute of French J on 10 July 2018 in which she again declined to direct that a transcript be prepared and provided to the applicant.[4] She repeated an indication given in the note of 12 June 2018 that if the applicant wished to challenge the original decision of Winkelmann J, he should do so via an application for leave to appeal to this Court. She also indicated that there was no jurisdiction to convene a panel of three judges of the Court of Appeal to review Winkelmann J’s decision.
[4]Nuku v R CA7/2015, 10 July 2018 (Minute of French J).
The applicant seeks leave to appeal against the first decision of Winkelmann J but also challenges the second decision of French J.

The first decision of Winkelmann J

Rule 4(2) of the Court of Appeal (Access to Court Documents) Rules 2009 (which were in force at the time of the first application)[5] makes it clear that the rules were…

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.

Continue reading Nuku v R

Details

AGLC: Nuku v R [2018] NZSC 96
Case: [2018] NZSC 96
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Karl Teangiotau Nuku, the applicant, sought leave to appeal against two decisions of the Court of Appeal that refused his requests for transcripts of his appeal hearing for aggravated robbery and unlawful possession of firearms. The first decision, rendered by Winkelmann J on April 14, 2016, rejected the applicant's request for a transcript to assist with his research and studies. The second decision, made by French J on July 10, 2018, dismissed a subsequent application for a transcript, which the applicant intended to use in prosecuting complaints against prison and police officers. The applicant argued that these decisions were in error and sought leave to appeal.

The court examined the statutory criteria for leave to appeal as outlined in the Supreme Court Act 2003 and the Senior Courts Act 2016. The Court of Appeal (Access to Court Documents) Rules 2009 and 2017 were considered, along with the inherent jurisdiction of the Court of Appeal. The court found that the applicant's application did not raise any question of public or general importance, nor did it demonstrate any appearance of error in the judges' reasons. The court also noted that there is no provision in the rules for decisions made by a single judge to be reviewed by a panel of three judges. Consequently, the court concluded that neither decision warranted a grant of leave to appeal.

The Supreme Court dismissed the applicant's application for leave to appeal. The court found that the decisions of Winkelmann J and French J were within the scope of the Court of Appeal's jurisdiction and did not constitute a miscarriage of justice. The court held that a judge was entitled to reject a subsequent application on the basis that the issue had already been determined, and that the rules do not contemplate a series of applications requiring separate judicial consideration. The court also found that the applicant's current ground for seeking a transcript was already addressed by Winkelmann J in her second decision.

Orders