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 to call Mr Fenech.

[5]      Mr Kalu opposed this application.   Judge Sharp heard the application on

14 August this year and delivered an oral decision: DC AK CRI-2006-004-010099. The judge effectively granted the application, although basing it on s 130 of the Evidence Act 2006.  She indicated, however, that if she was wrong in granting the application  under  that  section,  she  would  have  granted  it  under  s  184  of  the Summary Proceedings Act.

[6]      Mr Kalu sought leave to appeal against that decision.  He wants Mr Fenech to have  to  give  his  evidence  orally  so  that  Ms  England,  Mr  Kalu’s  counsel,  can cross-examine him.

The procedural history

[7]      Before we come to the issues on this appeal, we need to set out some further details of the procedural history, particularly the procedural history in this court.  As it turns out, this judgment and the reasons therefor have been prepared under circumstances of real urgency, which need to be explained.

[8]      Although this appeal was filed only in September, the court gave it priority because  of  the  pending  trial  date  of  5  November.    We  heard  the  appeal  on

16 October.   By this time, circumstances had changed somewhat from what they were at the time of the hearing before Judge Sharp: we shall explain this further later. We expressed to counsel a preliminary view that, especially in light of the changed circumstances, we were minded to allow the appeal and order Mr Fenech’s evidence to be taken by video link from Australia, either before the trial or during the trial. This way Ms England would have the opportunity to cross-examine him.  Counsel for the Crown, Mr Raftery, who had not been involved at the time of the District Court hearing, was inclined to agree that that was a sensible result.  He indicated to

us, based on information then available to him, that Mr Fenech was now living on the Gold Coast in Queensland.   He thought the best course  was to arrange for Mr Fenech to go to an appropriate facility near to his home where his evidence could be taken.

[9]      Mr  Raftery  explained  it  was  possible  Mr  Fenech  was  no  longer  kindly disposed towards the New Zealand Police: no details were given.  In order to ensure Mr Fenech’s co-operation, Mr Raftery said a subpoena would need to issue.   He noted that “leave of a Judge of the High Court” was required before a New Zealand subpoena  could  be  served  in  Australia:  Evidence  Act,  s  154.    Because  of  the shortness of time before the expected start date of the trial, Mr Raftery asked if we were minded to allow Mr Kalu’s appeal, whether we would be prepared to reconstitute ourselves as judges of the High Court and then grant leave for the issue of the subpoena.  This would obviate the need for a separate application to the High Court. Ms England supported that suggestion.

[10]     Because we needed time to consider what we should do about Mr Kalu’s appeal, we reserved our decision.   We did not at that stage grant leave to serve a subpoena as the subpoena would be needed only if the appeal was to be allowed.

[11]     In  the  course  of  our  deliberations,  we  reflected  on  whether  we  had jurisdiction to entertain Mr Kalu’s appeal.   This was because the judge’s decision purported to be made under s 130 of the Evidence Act, a section not included in s 379A of the Crimes Act 1961, the provision under which, at that time, the appeal had  purportedly  been  brought.    The  presiding  judge,  Chambers  J,  then  had  a telephone conference with counsel.  Counsel accepted there might be jurisdictional difficulties, although Ms England wanted to think about that further.  In any event, Mr Raftery confirmed in that telephone conference that the Crown would like leave at that stage to serve a New Zealand subpoena on Mr Fenech.   He wanted to get things moving in that regard, should we ultimately decide we had jurisdiction and would  allow  the  appeal.    Ms  England  confirmed  she  consented  to  leave  being granted.

[12]     Accordingly, on 19 October, we delivered a judgment in the following form:

AAs judges of the High Court, we grant leave, by consent, for a New Zealand subpoena to be served on Jeffrey Fenech, a former constable of the New Zealand Police, in Australia.

B        The appeal by the appellant remains reserved.

[13]     At the telephone conference, Mr Raftery and Ms England thought it likely they would be able to resolve the question of how Mr Fenech should  give his evidence without needing to trouble this court further.   We recorded that in our reasons for our interim judgment.   We explained that if the parties could agree, a consent memorandum could be filed.  We said, however, that if agreement could not be reached, then Ms England would promptly need to file submissions on the jurisdiction point.  We added (at [6]):

We do not set a time limit for those submissions: we shall leave that for Ms England’s judgment, bearing in mind the planned discussions with the Crown and the looming trial date.  Mr Raftery must, however, file and serve any submissions in reply to  Ms  England’s  within  two  working  days  of receiving her submissions (if she makes them).   We shall then deliver a decision on the appeal expeditiously.

[14]     On Tuesday this week, the Crown brought to our attention that our order granting leave for a New Zealand subpoena to be served on Mr Fenech had been made without jurisdiction.   (We shall explain why later in these reasons.)   The Crown also advised that the police had so far been unable to find Mr Fenech.  The Crown advised that, even if Mr Fenech was to be contacted in the next few days, it was now unlikely that the necessary practical arrangements could be made for his evidence to be given by video link.

[15]     Also on Tuesday, we received Ms England’s submissions on jurisdiction.  It turned out that she and the Crown had not been able to reach an accommodation, no doubt because the Crown had not been able to contact Mr Fenech.  In terms of the timetable we fixed, the Crown’s submissions on jurisdiction were due yesterday: we received them at 5 pm.

[16]     As we have already said, the trial is due to start on Monday.

Issues on the appeal

[17]     There are three issues on the appeal.

[18]     First, is there jurisdiction to entertain this appeal?  For the reasons we shall shortly give, we are now satisfied there is jurisdiction.

[19]     The next issue is: what is the significance of the changed circumstances since Judge Sharp’s decision?   As we shall explain, there have been some significant changes in circumstance since Her Honour made her decision.   Because of those changed circumstances, we have decided the appeal must be allowed, but that the matter should be reargued in the District Court.  We shall give our reasons as to why we do not consider we can evaluate those changed circumstances.

[20]    Finally, there is the issue as to whether we, as High Court judges, had jurisdiction to grant leave for a subpoena to be served on Mr Fenech.  If we did not, we need to consider what we should do about that.

Is there jurisdiction to entertain this appeal?

[21]     As we have said, the Crown’s application to the District Court was brought under s 184 of the Summary Proceedings Act.   The judge, of her own motion, elected, however, to deal with it as an application under s 130 of the Evidence Act. That section reads as follows:

130   Offering documents in evidence without calling witness

(1)A party may give notice in writing to every other party that the party proposes to offer a document (whether or not a public document), a copy of which is attached to the notice, as evidence in the proceeding without calling a witness to produce the document.

(2)A party who on receiving a notice wishes to object to the authenticity of the document to which the notice refers, or to the fact that it is to be offered in evidence without being produced by a witness, must give a notice of objection in writing to every other party.

(3)If no party objects to a proposal to offer a document as evidence without calling a witness to produce it, or if the Judge dismisses an objection to the proposal on the ground that no useful purpose would

be served by requiring the party concerned to call a witness to produce the document, -

(a)    the document, if otherwise admissible, may be admitted in evidence; and

(b)    it will be presumed, in the absence of evidence to the contrary, that  the  nature,  origin,  and  contents  of the  document  are  as shown on its face.

(4)A party must give notice of a proposal to offer a document without calling a witness to produce it-

(a)     in sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the proposal; or

(b)     within the time, whether before or after the commencement of the hearing, that the Judge allows and subject to any conditions that the Judge imposes.

(5)A  party  must  give  notice  of  objection  to  a  proposal  to  offer  a document without calling a witness to produce it –

(a)     in sufficient time before the hearing to provide all the other parties with a fair opportunity to consider the notice; or

(b)     within the time, whether before or after the commencement of the hearing, that the Judge allows and subject to any conditions that the Judge imposes.

(6)The Judge may dispense with the requirement for a party to give notice under subsection (1) or (2) subject to any conditions that the Judge imposes.

(7)     This section is subject to sections 131 and 132.

[22]     The judge held Mr Fenech’s written statement adduced at the preliminary hearing to be “a document”.   She said there was “no defence challenge” to its contents – a point to which we shall return.  She considered no useful purpose would be served by requiring the Crown to call Mr Fenech to produce the statement.

[23]     The Crown had not given a notice in writing in terms of s 130(1).  That was because, the judge recorded, Crown counsel had been unaware of this provision in the new Act until the judge had pointed it out to counsel.   The judge resolved to dispense with the requirement for the Crown to give notice, pursuant to subs (6).

[24]     The judge therefore determined “that the application under s 130 Evidence

Act 2006 is met”: at [27].

[25]     The question now for us is: is there jurisdiction to appeal against that decision in  advance  of  trial?    Ms  England,  in  her  submissions,  referred  us  to  appellate authority that  a  decision  under  s  184  of the  Summary Proceedings  Act  can  be regarded as a decision made under s 344A of the Crimes Act, with the consequence that it is appealable, by leave, under s 379A of the Crimes Act: R v Henry (1999)

17 CRNZ 653 (CA). Ms England indicated a problem, however, as Judge Sharp’s determination in the end was not under s 184 of the Summary Proceedings Act. All Judge Sharp had indicated was she would have granted an application under that section if she was wrong “in granting the s 130 Evidence Act 2006 application”: at [27]. Ms England submitted there was “no specific right of appeal from the determination made by the learned District Court judge pursuant to s 130 Evidence Act 2006” but submitted we should use our “inherent jurisdiction to prevent an abuse of process and to ensure a fair trial and issue judgment along the lines of that indicated at the oral hearing”. The difficulty with that submission is that this court does not have an “inherent jurisdiction” to expand the jurisdiction conferred on us by statute.

[26]     Crown counsel, in submissions filed yesterday, agreed with Ms England “that there is no right of appeal from the determination of the District Court judge in relation to s 130”.   Crown counsel disputed that this court had an “inherent jurisdiction”.  He submitted that s 379A of the Crimes Act sets out when an appeal against an order may be made.  He said the legislature had amended that section in light of the passing of the Evidence Act 2006, but “significantly did not include a right of appeal from an order made pursuant to s 130 of the Evidence Act 2006”. The Crown respectfully submitted, therefore, there was no right of appeal.

[27]     We have concluded we do have jurisdiction to entertain this application for leave to appeal.  That jurisdiction is found in s 379A(1)(aa), which permits appeals against the making of orders under s 344A of the Crimes Act.  Judge Sharp’s order was, we have decided, made under s 344A.

[28]     Our reasoning, in brief, is as follows.  Section 130, like many other sections in the Evidence Act 2006, deals with the admissibility of particular pieces of evidence.  In the case of s 130, evidence which would not be admissible under the

“ordinary” provisions of that Act may become admissible if the s 130 criteria are met.   The section explicitly recognises there may be disputes about whether the criteria are met.   But, and this is important, the section itself does not prescribe a procedure for determining the admissibility question in the event that party B objects to what party A proposes to adduce as evidence.  The reason s 130 does not prescribe a procedure is deliberate: the Act tells one what is and is not admissible but it does not concern itself with the procedure for determining disputed questions of admissibility.    The  procedure  to  be  utilised  is  left  to  other  statutes  or  rules, depending upon the type of proceeding.

[29]     The proceeding in this case happens to be a criminal proceeding in which the alleged offender is being proceeded against by indictment.  In such proceedings, if a party proposes to call evidence the admissibility of which is disputed, the procedure for resolving that dispute pre-trial is provided by s 344A.  If the police were seeking to adduce Mr Fenech’s written statement under s 130 of the Evidence Act in a summary proceeding, the procedure would be different.   It would be different yet again in a civil proceeding.

[30]     There is currently no prescribed form for an application under s 344A.  In this case, although the Crown had filed a written application seeking the admission of Mr Fenech’s written statement, that application did not mention s 344A (or for that matter s 130 of the Evidence Act) at all.   But the judge in effect treated it as an application under 344A, and in our view was right so to do.  Henry is authority for the proposition that an application relying on s 184 of the Summary Proceedings Act is nonetheless an application under s 344A of the Crimes Act, in that its purpose is to establish the admissibility of disputed evidence.  The application in this case is in the same category: it sought to have disputed evidence declared admissible.  While the Crown  initially  contended   it   was   admissible   under   s 184   of   the   Summary Proceedings Act, the judge was entitled to find it admissible under a different provision which she considered more applicable.  But it did not change the character of the application, which was and remained an application to determine the admissibility of proposed evidence in an upcoming trial prior to that trial’s commencement.   That is the procedure provided by s 344A and that was the jurisdictional basis for Her Honour’s decision.

[31]     The above views are consistent with this court’s conclusion not only in Henry

but also in R v Lewis CA311/06 28 November 2006 at [2].

[32]     We now deal with the point raised by the Crown, namely that s 379A of the Crimes Act lists four provisions of the Evidence Act 2006 from which appeals by leave are possible, but s 130 is not among them.   The Crown is there referring to s 379A(1)(e) – (g), which confer jurisdiction to appeal from decisions made under ss 109, 112, 113 and 44 of the Evidence Act 2006.  There is, we think, a reason why those sections have been picked out.   The first three sections mentioned, namely ss 109,  112,  and  113,  have  nothing  to  do  with  the  admissibility  of  evidence. Accordingly, applications under those sections could not be dealt with under s 344A. Therefore, unless those sections were specifically mentioned in 379A, decisions made under them would not have been appealable at all.

[33]     The fourth section mentioned, in s 379A(1)(g), confers jurisdiction to appeal, by leave, against the making of an order under s 44 of the Evidence Act 2006 relating to the cross-examination of a complainant or against the refusal to make such an order.  Section 44 replaces s 23A of the former Act, the Evidence Act 1908. An appellant sought to appeal a s 23A order in R v G (CA62/98) 23 April 1998.  This court held there was no jurisdiction to appeal a decision made under s 23A in advance of trial and said it could not be treated as if it were a decision made under s

344A of the Crimes Act.  This court concluded at 6:

However, on the jurisdictional ground leave to appeal is declined.   The jurisdictional difficulty could easily be cured by legislative amendment.  We are unaware of any policy reason why Section 23A applications should not be included with those under Section 379A, where applications for leave to appeal may be made before trial.

[34]     This court had come to a similar conclusion in an earlier attempt to appeal a s 23A decision: R v Parata CA456/95 1 November 1995.

[35]     This court’s comments in G led to legislative amendment.  Decisions under s 23A  were  made  appealable  by  an  amendment  to  s  379A:  see  the  Crimes Amendment Act 2000, s 4(2).  This appeal provision has now been rolled over with the passage of the Evidence Act 2006, so that s 379A confers jurisdiction to appeal

by leave against an order made under s 23A’s successor section, s 44 of the new

Evidence Act.

[36]     Accordingly, the absence of s 130 of the Evidence Act 2006 from s 379A is deliberate.   The only sections in the new Evidence Act mentioned are those not concerned with the admissibility of evidence, but in respect of which it is thought appropriate to provide pre-trial appeals.   Decisions on admissibility, however, if made pre-trial in an indictable criminal proceeding, are all made procedurally under s 344A of the Crimes Act, and thus are appealable, by leave, under s 379A(1)(aa).

[37]     For these reasons, we are satisfied we have jurisdiction to hear this appeal.

What is  the  significance  of  the  changed  circumstances  since  Judge  Sharp’s decision?

[38] At the time of Judge Sharp’s decision, there was, as she understood it, nothing “of any moment or contest contained in Mr Fenech’s evidence”: at [16]. As she understood it, Ms England wished to cross-examine Mr Fenech only “on some matters which [were] not revealed by his statement”: at [17]. She was unable to ascertain what those other matters were.

[39]     In the absence of a record of the argument, we cannot be certain exactly how Ms England put the matter to Judge Sharp.  But it is quite clear that now she does want to challenge Mr Fenech on part of his written statement.  That part relates to where he says he found the bag and his description of the bag.   (We mention in passing that the bag, which was to be an exhibit, has apparently been mislaid.  An issue at trial will now be whether the bag found in the car was the complainant’s.)

[40]     At the oral hearing before us, we were inclined to think that those changed circumstances  required  Judge  Sharp’s  decision  to  be  reappraised.     She  was proceeding on an assumption that Mr Fenech’s statement was essentially unchallenged.    That  is  no  longer  the  case.    That  inclined  us  to  the  view  that Ms England should have the opportunity to cross-examine Mr Fenech, especially if that could be done in Queensland.  Mr Fenech might object and refuse to come to

New Zealand to give evidence, but his objection to giving evidence might evaporate if he could give evidence close to his home or place of work.

[41]     But Tuesday’s advice from the Crown as to Mr Fenech’s not yet being found changes matters yet again.  Obviously, if Mr Fenech cannot now be located, that may swing the decision back in favour of his written statement being adduced at trial pursuant to s 130 of the Evidence Act.

[42]     The  problem  we  have  is  that  the  Crown  has  not  provided  any  affidavit evidence as to the steps that have been taken to locate Mr Fenech.  We simply do not know enough about the facts: all we have are some brief assertions in counsel’s memorandum.

[43]     Nor do we have time to sort out the facts.  Today is the last working day prior to the possible start of the trial.  Two of the panel are in one city, the third in another. We do not know the whereabouts of counsel.  In any event, it would take time to get affidavit evidence.

[44]     In  the  end,  we  have  decided  that  the  question  of  the  admissibility  of Mr Fenech’s written statement will have to be determined afresh by the trial judge. The decision will need to be made in light of proved  facts  as  to  Mr  Fenech’s availability or otherwise and in light of the issues which Ms England now says will arise on Mr Kalu’s trial.

[45]     We have therefore decided that leave to appeal should be granted and the appeal  allowed.    We quash  Judge Sharp’s  order  declaring  Mr  Fenech’s  written statement admissible.  But we make clear that the Crown may reapply for an order that Mr Fenech’s written statement be admitted at Mr Kalu’s trial, whether pursuant to s 130 of the Evidence Act or otherwise.

[46]     It may be this decision will lead to an adjournment application by one side or the other.  We express no view on whether such an application should be granted if made.  That will be a matter for the District Court.

Did  we  have  jurisdiction  to  grant  leave  for  a  subpoena  to  be  served  on

Mr Fenech?

[47]     As we have said, at the hearing on 16 October, Mr Raftery asked us, in our capacity  as  judges  of  the  High  Court,  to  grant  leave  to  serve  a  New  Zealand subpoena on Mr Fenech in Australia.  This was pursuant to s 154(1) of the Evidence Act, which reads as follows:

A New Zealand subpoena may, with the leave of a Judge of the High Court, be served on a witness in Australia.

[48]     What counsel and we overlooked, however, were two other sections of the new Act, ss 150 and 151.  Section 150 provides that, unless the context otherwise requires, New Zealand subpoena means a subpoena issued by a New Zealand court in a proceeding other than a specified proceeding.   “Specified proceeding” is then defined in s 151.   One of its meanings is “a criminal proceeding”.   The effect of these interpretation provisions is, therefore, that a New Zealand subpoena cannot be served under s 154(1) if it is a subpoena in a criminal proceeding.

[49]     Clearly, we acted without jurisdiction when we granted leave for a subpoena to be served.  We are told by the Crown that to date no order of subpoena has been sealed.  In any event, Mr Fenech has not to date been located.

[50]     The appropriate course now is for the present panel, as judges of the High Court, to recall our interim judgment of 19 October.  That we do.  And in addition, we quash the order we made granting leave for a New Zealand subpoena to be served on Mr Fenech in Australia, that order having been made without jurisdiction.

Solicitors:

Crown Law Office, Wellington