R v Reddy - [2016] NZHC 526

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2014-092-11748

[2016] NZHC 526

THE QUEEN

v

KAMAL GYENDRA REDDY

Hearing: 21-23 March 2016

Appearances:

C Gordon QC, L Clancy and H Benson-Pope for the Crown J Krebs for the Defendant

Judgment:

24 March 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 24 March 2016 at 10:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Ms C Gordon QC, Special Counsel, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau Mr L Clancy and Mr H Benson-Pope, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau Mr J G Krebs, Barrister, Napier

R v REDDY [2016] NZHC 526 [24 March 2016]

[1] The defendant is charged with the murder of Mubarak Pakeeza Yusuf and her three old daughter, Juwairiyah Firdaws Kalim, in late 2006/early 2007.

[2] The defendant gave notice to the Crown that he objected to proposed Crown evidence of admissions of apparent guilt made by him. The Crown has sought orders declaring the evidence admissible, and also declaring admissible further evidence obtained as a result of the admissions.

[3] The grounds relied on in the defendant’s notice to the Crown, and maintained at the commencement of this hearing, invoked the following provisions of the Evidence Act 2006:

(a)Section 28: exclusion of unreliable statements.

(b)Section 29: exclusion of statements influenced by oppression.

(c)Section 30: improperly obtained evidence.

(d)Section 8: exclusion of evidence where the probative value is outweighed by the risk of unfair prejudice.

[4] The Crown’s application, evidence, and comprehensive written submissions provided in advance of the hearing, addressed all four grounds of opposition, and the evidence heard over two days was directed to all four grounds. However, at the commencement of his closing submissions, on the third day, Mr Krebs for the defendant advised that he could not responsibly advance arguments under ss 8, 28 and
30. This was primarily in light of the majority judgment in the recent Supreme Court decision in R v Wichman.1

[5] I am satisfied that Mr Krebs’ position adopted in closing was an entirely proper one. The inadmissibility arguments under ss 8, 28 and 30 would not have succeeded. I make that observation having regard not only to the effective concessions of the

1 R v Wichman [2015] NZSC 198 per William Young, Arnold and O’Regan JJ (given by William Young J).

defendant, through Mr Krebs, but also having regard to the important supervisory role of the Judge on questions such as this.2 The extent of the hearing, coupled with the comprehensive written submissions of the Crown, have nevertheless assisted in addressing the remaining admissibility issues on oppression under s 29.

Introduction

[6] Ms Yusuf and her daughter disappeared in late 2006 or early 2007, but Police did not begin an investigation into their disappearance until January 2013. This occurred when Ms Yusuf was reported missing by her mother, who had been living in Fiji.

[7] The defendant…

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 Reddy

Details

AGLC: R v Reddy [2016] NZHC 526
Case: [2016] NZHC 526
Decision Date: 24 March 2016

CaseChat Overview and Summary

Kamal Gyendra Reddy is charged with the murder of Mubarak Pakeeza Yusuf and her daughter, Juwairiyah Firdaws Kalim. Reddy objected to the admission of evidence of his admissions of guilt, made during an undercover police operation. The Crown applied for a ruling on the admissibility of the evidence. The court found that the evidence was not inadmissible under sections 8, 28, or 30 of the Evidence Act 2006. The court focused on section 29 of the Act, which excludes statements influenced by oppression. The court found that the conduct of the police officers did not amount to oppressive conduct, and the evidence was therefore admissible.

In R v Reddy, the defendant Kamal Gyendra Reddy was charged with the murder of Mubarak Pakeeza Yusuf and her daughter, Juwairiyah Firdaws Kalim. The Crown sought to admit evidence of admissions of guilt made by Reddy during an undercover police operation. Reddy objected to the admission of this evidence, arguing that it was obtained through oppressive conduct. The High Court of New Zealand granted the Crown's application, ruling that the evidence was admissible. The court found that the police conduct did not amount to oppressive conduct under section 29 of the Evidence Act 2006. The court relied on the definition of oppression provided in the Act, which includes oppressive, violent, inhuman, or degrading conduct or treatment. The court found that the police conduct did not reach the threshold required by section 29, as it did not involve violence or actual or implicit threats of violence. The court also noted that Reddy continued to engage willingly with the police officers after the lunchtime meeting, and did not express any concerns about his discussions with them. The court concluded that there was no evidential foundation for the argument that the defendant's admissions were influenced by oppression.

Orders