R v Kalu - [2007] NZCA 487

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL. PUBLICATION IN LAW REPORT, OR LAW DIGEST, IS, HOWEVER, PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA449/07 [2007] NZCA 487

THE QUEEN

v

SIMIONE FEILOAKI TOHI KALU

Hearing: 16 October 2007
Court: Chambers, Randerson and Williams JJ Counsel: K C England for Appellant
K Raftery for Crown

Judgment: 2 November 2007 at 2.45 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted and the appeal is allowed.

B The decision made in the District Court on 14 August 2007 is quashed.

CThe Crown may reapply to the District Court for an order that Jeffrey Fenech’s written statement, which was admitted as evidence at the preliminary hearing under s 173A of the Summary Proceedings Act
1957, be admitted at the appellant’s trial.

R V KALU CA CA449/07 2 November 2007

DThe interim judgment of Chambers, Randerson and Williams JJ, sitting as judges of the High Court, made on 19 October 2007 is recalled by them and their order granting leave for a New Zealand subpoena to be served on Jeffrey Fenech in Australia is quashed, having been made without jurisdiction.

EOrder prohibiting publication of the judgment and the reasons therefor in news media or on internet or other publicly accessible database until final disposition of the trial. Publication in law report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Chambers J)

Use of a written statement presented at a preliminary hearing

[1] Simione Kalu, the appellant, may face trial in the District Court at Auckland as early as next Monday. (His trial is a stand-by fixture.) He faces an indictment alleging he was an accessory after the fact to a robbery of a handbag and its contents.

[2] One of the proposed Crown witnesses is Jeffrey Fenech, who was at the time of the robbery a police officer. He is no longer a member of the police and indeed is now believed to be living in Australia. His proposed evidence is to the effect that he searched the vehicle in which Mr Kalu and others were travelling and found the stolen handbag on the floor next to the front passenger’s seat. Mr Fenech also took a statement from Mr Kalu.

[3] At the preliminary hearing, Mr Kalu’s counsel consented to Mr Fenech’s written statement being admitted as evidence under s 173A of the Summary Proceedings Act 1957. At that time, defence counsel fully expected Mr Fenech would be a Crown witness at the trial.

[4] Some time later, however, Crown counsel learned that Mr Fenech was no longer a member of the police and was now living in Australia. This led the Crown to make an application under s 184 of the Summary Proceedings Act for Mr Fenech’s written statement to be read as evidence for the Crown at Mr Kalu’s trial, without the Crown having…

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 R v Kalu

Details

AGLC: R v Kalu [2007] NZCA 487
Case: [2007] NZCA 487
Decision Date: 2 November 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Kalu involved Simione Kalu, who faced a trial for being an accessory after the fact to a robbery. One of the Crown's proposed witnesses, Jeffrey Fenech, was a former police officer believed to be living in Australia. Kalu opposed the Crown's application to admit Fenech's written statement as evidence at his trial, arguing that Fenech should testify orally to allow for cross-examination. The legal issues in the appeal were whether the Court of Appeal had jurisdiction to hear the appeal, the significance of the changed circumstances since the District Court's decision, and whether the Court of Appeal had jurisdiction to grant leave for a subpoena to be served on Fenech.

The Court of Appeal concluded that it had jurisdiction to hear the appeal, as the application in the District Court, although brought under s 184 of the Summary Proceedings Act, was essentially an application under s 344A of the Crimes Act, which is appealable by leave under s 379A of the Crimes Act. The Court of Appeal also found that the changed circumstances since the District Court's decision required the matter to be reargued in the District Court, as Kalu now wanted to challenge part of Fenech's written statement. However, the Court of Appeal did not have jurisdiction to grant leave for a subpoena to be served on Fenech, as s 154(1) of the Evidence Act does not permit a New Zealand subpoena to be served in a criminal proceeding. The Court of Appeal recalled its interim judgment and quashed the order granting leave for a New Zealand subpoena to be served on Fenech in Australia. The Crown was permitted to reapply to the District Court for an order that Fenech's written statement be admitted at Kalu's trial.

Orders