R v Kalu

Simione Feiloaki Tohi Kalu appeals against a decision of the District Court to permit the Crown to use a deposition statement made by a police officer, Jeffrey Fenech, in his evidence-in-chief. Kalu’s counsel sought to have Fenech give evidence by video from Australia in accordance with sections 103 and 105 of the Evidence Act 2006. The Crown, however, maintained that it was not necessary for Fenech to travel to New Zealand and that his deposition statement should be admitted as evidence. Kalu’s counsel contended that the District Court erred in law by admitting Fenech’s deposition statement. The Court of Appeal considered whether it had jurisdiction to hear the appeal and whether the District Court’s order was appropriate. The Court of Appeal granted leave for a New Zealand subpoena to be served on Fenech, pending a decision on the appeal. The Court noted that if the Crown and Kalu’s counsel could not agree on how Fenech should give his evidence, Kalu’s counsel would need to file submissions on the jurisdiction point, and the Crown would have two working days to file and serve submissions in reply. The Court emphasised that it would deliver a decision on the appeal expeditiously.

The Court of Appeal considered the legal issues raised by Kalu’s appeal. Kalu’s counsel argued that the District Court erred in law by admitting Fenech’s deposition statement. The Court of Appeal noted that the Crown had not disputed that it would be appropriate for Fenech’s evidence to be taken in Australia by video. The Court of Appeal also noted that the Crown had not disputed that a New Zealand subpoena could be served on Fenech in Australia under section 154 of the Evidence Act 2006, provided that leave of a Judge of the High Court was granted. The Court of Appeal considered whether it had jurisdiction to hear the appeal and whether the District Court’s order was appropriate. The Court of Appeal noted that it had jurisdiction to hear the appeal and that the District Court’s order was appropriate, pending any decision from the Court of Appeal. The Court of Appeal also noted that if Kalu’s counsel and the Crown could not agree on how Fenech should give his evidence, Kalu’s counsel would need to file submissions on the jurisdiction point, and the Crown would have two working days to file and serve submissions in reply. The Court of Appeal emphasised that it would deliver a decision on the appeal expeditiously.

The Court of Appeal granted leave for a New Zealand subpoena to be served on Fenech, pending a decision on the appeal. The Court noted that if the Crown and Kalu’s counsel could not agree on how Fenech should give his evidence, Kalu’s counsel would need to file submissions on the jurisdiction point, and the Crown would have two working days to file and serve submissions in reply. The Court emphasised that it would deliver a decision on the appeal expeditiously. The Court noted that the formal position remained that the District Court order was in place, permitting the Crown to use Fenech’s deposition statement.