R v Lewis CA311/06 - [2006] NZCA 502

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST
PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA311/06

THE QUEEN

v

CRAIG RAYMOND LEWIS

Hearing: 22 November 2006
Court: William Young P, Chambers and Ellen France JJ Counsel: M M Dorset for Appellant
P K Feltham for Crown

Judgment: 28 November 2006 at 11 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted but the appeal is dismissed.

B The ruling of Judge Moore is confirmed.

R V LEWIS CA CA311/06 28 November 2006

CWe make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the Internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest is permitted.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1] The appellant, Mr Craig Lewis and a co-accused, Mr Jack Scott, face trial in the District Court on charges of burglary and wounding with intent to injure. Their trial is scheduled for March next year. Mr Lewis seeks leave to appeal against a pre- trial ruling of Judge Moore made on 1 August 2006 in which the Judge ruled that the evidence of T, a child witness, could include the playing of a video interview and that his confirmatory oral evidence in chief and cross-examination could be via closed-circuit television.

[2] The application for leave to appeal proceeded on the assumption that a ruling as to mode of evidence comes under s 344A of the Crimes Act 1961 so as to give rise to a possibility of appeal under s 379A. The Crown took no issue on this point, referring us to R v Accused (CA32/91) [1992] 1 NZLR 257 and R v Thompson CA361/02 19 March 2003. In our view, we have no general appellate jurisdiction under s 379A in relation to mode of evidence rulings which do not involve a discrete admissibility issue. On the other hand, we do have jurisdiction to entertain a challenge to that part of the ruling of the Judge which permits the use at trial of T’s evidential video, cf R v B (CA92/04) CA92/04 9 September 2004. That indeed is the

only aspect of the ruling which Ms Dorset for the appellant wishes to challenge. In other words no issue arises about the use of CCTV for T’s oral evidence.

The issues

[3] The case thus raises two issues:

(a) Did the District Court Judge have jurisdiction to direct that T’s evidence in chief be given in the form of his video interview? And, if so;

(b) Was the Judge right to make the challenged ruling?

Before we address those issues, we should briefly discuss the case against the appellant.

The case against the appellant

[4] The Crown alleges…

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 Lewis CA311/06

Details

AGLC: R v Lewis CA311/06 [2006] NZCA 502
Case: [2006] NZCA 502
Decision Date: 28 November 2006

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for leave to appeal by Craig Raymond Lewis against a pre-trial ruling by Judge Moore on 22 November 2006. Lewis and his co-accused, Jack Scott, face trial on charges of burglary and wounding with intent to injure. The appeal sought to challenge the Judge's ruling permitting the evidence of T, a child witness, to include the playing of a video interview and for his confirmatory oral evidence to be given via closed-circuit television. The Court considered whether the District Court Judge had jurisdiction to direct T's evidence in chief be given in the form of his video interview and, if so, whether the Judge was right to make the challenged ruling.

The Court held that it had jurisdiction to entertain a challenge to the use of T's evidential video but did not have general appellate jurisdiction in relation to mode of evidence rulings which do not involve a discrete admissibility issue. The Court found that the District Court Judge had inherent power to make orders as to the mode by which any witness may give their evidence, but this power should be exercised with due regard to the expectation that normal process will be followed unless there is a strong reason for departure. The Court concluded that the Judge was right to make the challenged ruling, given the exceptional circumstances of the case, including the trauma experienced by the child witness and the nature of the evidence he was expected to give.

The Court granted leave to appeal but dismissed the appeal, confirming the ruling of Judge Moore. The Court also made an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the Internet or other publicly accessible database until final disposition of the trial. Publication in Law Reports or Law Digest was permitted.

Orders