R v Slaimankhel - [2014] NZHC 3056

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-006353 [2014] NZHC 3056

THE QUEEN

v

KHALID NASA SLAIMANKHEL Respondent

Hearing: 30 October 2014

Counsel:

C Paterson for Crown
M W Ryan for Respondent

Judgment:

2 December 2014

JUDGMENT OF KATZ (Section 344A application)

This judgment was delivered by me on 2 December 2014 at 3:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Crown Solicitor, Auckland

Counsel: M Ryan, Vulcan Chambers, Auckland

R v SLAIMANKHEL [2014] NZHC 3056 [2 December 2014]

Introduction

[1] Khalid Slaimankhel is jointly charged, together with two other defendants, with one count of kidnapping and one count of perverting the course of justice.

[2] At Mr Slaimankhel’s first trial the jury was discharged after they failed to reach verdicts on those charges. Mr Slaimankhel’s re-trial is scheduled to take place in mid-2015. In advance of his re-trial the Crown has applied for an order under s 344A of the Crimes Act 1961 that the evidence of Detective Kristjana Parkes be admissible at trial. Mr Slaimankhel opposes that application.

[3] At Mr Slaimankhel’s first trial, Detective Parkes gave evidence of an interview she conducted with Mr Slaimankhel at Mt Eden prison on 18 March 2013. The admissibility of that evidence was not challenged at the time. Mr Slaimankhel now, however, challenges its admissibility on two key grounds:

(a) that Detective Parkes breached his right under s 23(4) of the New Zealand Bill of Rights Act 1990 (“NZBORA”) to refrain from making a statement; and

(b)that the statement was obtained unfairly in terms of s 30(6) of the Evidence Act 2006, because Detective Parkes breached the Practice Note on Police Questioning.1

[4] I will consider each issue in turn, after briefly outlining the relevant facts.

Factual background

[5] The police case against Mr Slaimankhel is that he arranged for an acquaintance of his, Junior Paea, to kidnap Marven Yacoub and arrange for him to make a statement in support of Mr Slaimankhel’s defence on drugs charges he was then facing. In particular, it is alleged that Mr Yacoub arranged a meeting with Jay Law (one of the other defendants) at Burger King in Mangere on 11 February
2013. A “big Tongan guy” showed up at the meeting and allegedly detained and then

1 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

abducted Mr Yacoub from Burger King and brought him to the offices of Mr Slaimankhel’s then lawyer. Under the watchful eye of Mr Slaimankhel and the “big Tongan guy” Mr Yacoub then made a statement in support of Mr Slaimankhel. The lawyer, apparently, did not realise anything was amiss.

[6] Mr Yacoub’s evidence will be that he did not know the “big Tongan guy”, and had never met him before the meeting at Burger King. The Crown says that the man was Mr Paea, Mr Slaimankhel’s other co-defendant. The Crown says that Mr Slaimankhel arranged for Mr Paea to kidnap Mr Yacoub…

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 Slaimankhel

Details

AGLC: R v Slaimankhel [2014] NZHC 3056
Case: [2014] NZHC 3056
Decision Date: 2 December 2014

CaseChat Overview and Summary

Khalid Slaimankhel has been charged with kidnapping and perverting the course of justice. His first trial ended with a discharged jury. The Crown has applied for an order under s 344A of the Crimes Act 1961 that the evidence of Detective Kristjana Parkes be admissible at trial. Mr Slaimankhel opposes that application on two key grounds: that Detective Parkes breached his right under s 23(4) of the New Zealand Bill of Rights Act 1990 to refrain from making a statement, and that the statement was obtained unfairly in terms of s 30(6) of the Evidence Act 2006, because Detective Parkes breached the Practice Note on Police Questioning. The court considered each issue in turn, after briefly outlining the relevant facts. The court found that Mr Slaimankhel’s right to refrain from making a statement was not inappropriately undermined or overborne by the conduct of the police interview, nor was the evidence obtained unfairly. The evidence of Detective Kristjana Parkes, as set out in her evidential statement dated 18 March 2013, is admissible. To protect Mr Slaimankhel’s fair trial rights, the court made an order prohibiting publication of this judgment and any part of the proceedings in new media or on the internet or other publicly available database until final disposition of trial. Publication in a law report or law digest is permitted.

Orders