R v Selini - [2019] NZHC 998

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-009-005041

[2019] NZHC 998

THE QUEEN

v

TASI FAITALA SELINI

Hearing: 22 May 2019

Appearances:

C J Boshier for Crown

A M S Williams for Defendant

Ruling:

23 May 2019

PRE-TRIAL RULINGS COOKE J

[1] The defendant, Mr Selini, faces a number of charges involving violence against his partner between February and May 2018. He has entered not guilty pleas to the charges and is to appear for trial in December 2019.

[2] The Crown applies for directions about the way the complainant is to give evidence. The Crown also applies for directions the following convictions be adduced as propensity evidence: wounding with intent to injure (x2), threatening to kill; male assaults female (x5); assault with intent to injure (x2); and assault with a weapon (x2)
– convictions entered on 9 June 2011.1

1 The Crown initially sought to also adduce a breach of protection order on 3 November 2009. That is no longer sought.

R v SELINI [2019] NZHC 998 [23 May 2019]

[3] The defendant seeks non-party disclosure orders from 2degrees Mobile Ltd and from the Department of Corrections.

Directions as to the way the complainant is to give evidence

[4] The Crown proposes the complainant give evidence from behind a screen/partition to ensure she cannot see the defendant or the public gallery. This is consented to by the defendant.

[5] Section 103 of the Evidence Act 2006 permits a judge to order that any witness in any civil or criminal proceeding may give evidence in an alternative way. Section 105(1)(a) sets out the potential ‘alternative ways’ in which a witness may give evidence — including from outside the courtroom and by evidence recorded prior to trial. Section 106 governs proceedings in which video record evidence is given. Section 103(3) gives the grounds an alternative order may be made upon, including:

…

(c)the trauma suffered by the witness:

(d)the witness’s fear of intimidation:

…

(f)the nature of the proceeding:

(g)the nature of the evidence that the witness is expected to give:

(h)the relationship of the witness to any party to the proceeding:

…

[6] The Crown relies on R v O, a decision of the Court of Appeal against a refusal to permit the playing of an evidential video as a complainant’s evidence in chief.2 The Court said:3

Section 103 allows a broad fact-specific inquiry. It appears to signal a distinctive shift in legislative policy to extend the scope for the mode of giving evidence by alternative means beyond the previous limitations to young and mentally impaired complainants in sexual cases. The provision vests a broad and unfettered discretion in the trial Judge once the jurisdiction to make an order is established. As this Court has previously observed, there is now no

2 R v O [2012] NZCA 475.
3 At [37].

default position or presumption in favour of giving evidence in the ordinary way.

[7]In Wealleans v R

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 Selini

Details

AGLC: R v Selini [2019] NZHC 998
Case: [2019] NZHC 998
Decision Date: 23 May 2019

CaseChat Overview and Summary

The case of R v Selini in the High Court of New Zealand Christchurch Registry involves the defendant, Mr. Selini, facing charges of violence against his partner between February and May 2018. The Crown has applied for directions regarding the complainant's method of giving evidence and to adduce certain prior convictions as propensity evidence. The defendant has sought non-party disclosure orders from 2degrees Mobile Ltd and the Department of Corrections. The court ruled that the complainant could give evidence from behind a screen, ensuring she does not see the defendant or the public gallery, to alleviate her potential trauma and fear of intimidation. The court also permitted the admission of the defendant's prior convictions as propensity evidence, as the probative value of the evidence outweighed any prejudicial effect. However, the court denied the non-party disclosure orders from 2degrees Mobile Ltd, while granting the order for non-party disclosure from the Department of Corrections was dismissed due to insufficient particularity and marginal relevance.

In summary, the court ruled in favor of the Crown's applications regarding the complainant's method of giving evidence and the admissibility of prior convictions as propensity evidence. However, the court denied the non-party disclosure orders from the Department of Corrections, and granted the order for non-party disclosure from 2degrees Mobile Ltd, subject to the condition that the information is disclosed only to the defendant and not the Crown.

Orders