R v Te Kahu CA492/04 - [2005] NZCA 438

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1. NO ONE MAY PUBLISH IN THE NEWS MEDIA OR ON THE INTERNET OR ON ANY OTHER PUBLICLY ACCESSIBLE DATABASE THIS JUDGMENT OR THE REASONS THEREFOR OR A REPORT OF THEM, UNTIL THE TRIAL IS FINISHED.

2. NOTWITHSTANDING ORDER 1, THE NEWS MEDIA MAY REPORT THAT THE TRIAL VENUE HAS BEEN MOVED TO WELLINGTON, BUT, UNTIL THE TRIAL IS FINISHED, NOT THE REASONS THEREFOR. IN ANY SUCH REPORT, THE APPELLANTS' NAMES AND IDENTIFYING PARTICULARS MUST NOT BE PUBLISHED (BECAUSE OF A CURRENT INTERIM SUPPRESSION ORDER).

3. NOTHING IN ORDERS 1 AND 2 PREVENTS PUBLICATION OF THIS JUDGMENT AND THE REASONS THEREFOR IN A LAW REPORT OR LAW DIGEST.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA492/04
CA509/04

CA512/04

THE QUEEN

v

KENNETH ANDRE TE KAHU RANGI WAINOHU TAMATI JEREMY KEVIN HATLEY

Hearing: 29 and 30 August 2005
Court: William Young, Chambers and O'Regan JJ Counsel: A J S Snell for Appellant Te Kahu
T Ellis and S B Antunovic for Appellants Tamati and Hatley
E M Thomas and E A Gambrill for Crown

Judgment: 28 September 2005

JUDGMENT OF THE COURT

R V TE KAHU & ORS CA CA492/04 [28 September 2005]

AWe grant the appellants leave to appeal in relation to change of venue and allow their appeal with the result that their trial is to take place in the High Court at Wellington on 7 November 2005 or otherwise as directed by the High Court (confirming the result announced orally at the end of the hearing).

BWe grant the appellants leave to appeal in relation to the admissibility issues associated with the intercept evidence but dismiss the appeal.

C We dismiss the application for a stay.

D We make suppression orders as recorded above.

REASONS

(Given by William Young J)

Table of Contents

Para No

Introduction  [1] The background facts  [7] The arguments in this Court  [20] The status of Neazor J
Non-tenured judges – general  [22]
The legislative scheme as to non-tenured High Court           [23]
Judges
Legislative history  [24] The way the system has worked in the High Court                [28] since 1981
The arguments for the appellant  [30] Evaluation – general  [34] Are successive appointments permissible under s 11A?        [46] Are acting judges appointed under s 11A confined to           [49] “non-sitting judicial functions”?
The de facto officer doctrine  [55]

Other admissibility issues
General [58]
The relevant features of the legislative scheme [60]

The grounds upon which evidence collected pursuant           [63]
to interception warrants may be challenged
The legitimacy of interception warrants where the targets     [65]
are in custody and have been charged with offences
Whether the interception warrant was invalid as                   [77]
the appellants were not “suspects”?
The “failure” to interview Mr Hatley before seeking a         [83]
warrant
Complaints as to conclusory and prejudicial material           [85]
in the application
Complaints as to the duration of the warrant  [90]
Other complaints made by the appellants  [93] The change of venue application  [98] A stay of proceedings?

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 Te Kahu CA492/04

Details

AGLC: R v Te Kahu CA492/04 [2005] NZCA 438
Case: [2005] NZCA 438
Decision Date: 28 September 2005

CaseChat Overview and Summary

This appeal was concerned with a ruling made by Laurenson J in the Gisborne High Court. The appellants face charges of murder and conspiracy to pervert the course of justice. They sought leave to appeal against a judgment of Laurenson J which addressed four applications: by the Crown to determine the admissibility of the intercepted conversations of the appellants; by the Crown seeking directions as to the mode of evidence to be adopted at trial in relation to a proposed Crown witness, Mr Kingi Hamlin; by all appellants for an order that the trial be heard in a city other than Gisborne; and by the appellant Mr Rangi Tamati for a discharge under s 347 of the Crimes Act on the murder count. The applications for leave to appeal were confined to the rulings made by the Judge under s 344A (upholding the admissibility of the intercept evidence) and under s 322 (dismissing the appellants’ application for a change of venue). The appeal against the admissibility of the intercept evidence was dismissed. The court held that the warrant was valid and the evidence collected pursuant to the warrant would be admissible. The application for a change of venue was allowed. The court held that the appellants' application should be allowed. The application for a stay was dismissed.

Orders