R v Te Tomo

[2017] NZHC 1123

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 AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2015-476-000005

[2017] NZHC 1123

THE QUEEN

v

KOOLY MANGAKI TE TOMO

Hearing:

22 May 2017

Appearances:

A McRae for the Crown

J Rapley for the Defendant

Date of Ruling:

25 May 2017

RULING 1 OF NATION J

[1]    Detective Sewell was called by the Crown to explain how he had obtained data as to communications between various relevant cell phones. What the Police considered to be relevant data was produced in schedules by the Crown.

[2]    The defence wished to question Detective Sewell about further data that was obtained in relation to the deceased’s phone and also the phone of his partner, a Crown witness, Leanne Moore. Detective Sewell was stood down as a witness so that he could obtain that data and refer to it while being cross-examined.

[3]    During cross-examination, Mr Rapley drew the witness’s attention to data which potentially showed the deceased’s phone had been activated after a time when, according to the Crown case, the phone would have been submerged in the water where the deceased’s body was found. Mr Rapley was asking questions as to

R v TE TOMO [2017] NZHC 1123 [25 May 2017]

enquiries Detective Sewell had made of the 2degrees witness, Ms Muollo, in this regard. She had provided all relevant data held by 2degrees to the Police.

[4]    Counsel was also asking questions as to the responses he had received from Ms Muollo.

[5]    I raised a concern that Mr Rapley was asking questions and eliciting hearsay evidence which would otherwise have been inadmissible. I did this in the absence of the jury.

[6]    Mr Rapley explained that he had given notice to the Crown that he required Ms Muollo to be called as a witness and to be available for cross-examination. He understood that, by mistake, the Crown had not arranged for her to be so available.

[7]    In these circumstances, he wanted the information provided by Ms Muollo in response to the Police enquiries to be available as evidence. He indicated that, if that information could be available to the defence in this way, there would not be a problem for the defence through Ms Muollo not being available for cross- examination.

[8]    Mr McRae acknowledged that the defence had indicated they required Ms Muollo to be available for cross-examination. Inadvertently, Mr McRae had proceeded on the basis her evidence could be read. She was thus not available but he indicated the Crown would accept that the responses she provided to the Detective, which the defence wish to adduce in evidence, could properly be put before the Court and accepted as evidence which the jury could properly consider. It was because of his willingness for matters to be dealt with in that way that he had not raised any objection to the questions which were being asked in cross-examination  of Detective Sewell.

[9]    Against that background, I allowed counsel to proceed with his line of cross- examination and to ultimately produce, as an exhibit, the written communications from the Police to Ms Muollo and her reply.

[10]   I consider the hearsay statements made by Ms Muollo in her responses to the Police were a business record. She was not available as a witness. In the

circumstances, I consider there would have been undue delay to the trial if Ms Muollo had been required to attend as a witness.

[11]   On that basis, I rule that the statements Ms Muollo provided to the Police in response to their enquiries, as recorded in defence exhibit E, are admissible as evidence in this trial.

Solicitors:

Gresson Dorman & Co., Timaru

J Rapley, Bridgeside Chambers, Christchurch.