R v Te Tomo - [2017] NZHC 1062

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 1062

THE QUEEN

v

KOOLY MANGAKI TE TOMO

Hearing: 19 May 2017 via telephone conference

Appearances:

A McRae for the Crown

J Rapley and P Bradford for the Defendant S Bailey for Perry

R Glover for Lucas

Judgment:

19 May 2017

JUDGMENT OF NATION J

[1] The Crown and the defendant have joined in seeking an adjournment of the defendant’s trial which is scheduled to start on 22 May 2017.

[2] The request was made by way of a memorandum from the Crown sent to the Court on 18 May 2017. I discussed the issues with counsel for the Crown and for the defendant, but with counsel for Mr Perry and Ms Lucas also involved, in a telephone conference at 9.30 am on 19 May 2017. I now give my decision in relation to that application and, at the same time, deal with the claims for privilege which I have been

R v TE TOMO [2017] NZHC 1062 [19 May 2017]

told will be made by Mr Perry and Ms Lucas when they are called to give evidence for the Crown at the trial of Mr Te Tomo.

[3] Mr McRae said he was reluctantly making the request for an adjournment out of caution and because of considerations of fairness.

[4] On 18 May 2017, Ms Bailey, counsel for Mr Perry, advised the Crown that Mr Perry had now filed an appeal against his conviction in the Court of Appeal and that he would be invoking his right to claim privilege against self-incrimination in relation to evidence which the Crown were calling him to give in the trial of Mr Te Tomo. She said the claim would be based on the principles articulated by Collins J in R v McNaughton and s 60 of the Evidence Act 2006.1

[5] Mr Glover advised the Court on 19 May 2017 that he would be adopting the same position with regard to Ms Lucas.

[6] In his memorandum of 18 May 2017, Mr McRae, for the Crown, briefly summarised the basis on which he argued neither Mr Perry nor Ms Lucas would be entitled to privilege. He acknowledged the arguments that had been made as to how their giving evidence might incriminate them if their appeals are successful and there is a retrial. He argued that the circumstances of Mr Perry and Ms Lucas were materially different from those which were material to Collins J in his decision in R v McNaughton.

[7] Mr McRae said that any risk of self-incrimination, through their giving evidence at trial, could also be removed through the Crown accepting, as he did, that, if they were to be retried, it would be unfair for…

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 Tomo

Details

AGLC: R v Te Tomo [2017] NZHC 1062
Case: [2017] NZHC 1062
Decision Date: 19 May 2017

CaseChat Overview and Summary

The Crown and Kooly Mangaki Te Tomo have jointly applied for an adjournment of Te Tomo's trial, scheduled to commence on 22 May 2017. The application was made by way of a memorandum from the Crown to the Court on 18 May 2017. Nation J held a telephone conference with counsel for the Crown and the defendant, as well as counsel for two potential witnesses for the Crown, on 19 May 2017. The primary legal issue before the Court was whether the trial should be adjourned in light of the Crown's intention to call two witnesses, Mr Perry and Ms Lucas, who had previously been convicted of similar offences and were appealing their convictions. The Crown argued that the potential for these witnesses to claim privilege against self-incrimination and the risk of unfair prejudice to Te Tomo if the jury were to know of the witnesses' prior convictions warranted an adjournment. The defence argued that the witnesses' right to claim privilege against self-incrimination should be upheld and that the potential for unfair prejudice did not justify an adjournment.

Nation J determined that the Crown's arguments did not justify an adjournment of the trial. The Court found that there was no real and appreciable risk that the evidence given by Mr Perry and Ms Lucas at the trial would prejudice their appeals, as the evidence they were likely to give was unlikely to be more extensive than that which they had already provided through their respective police interviews. The Court also found that the potential for unfair prejudice to Te Tomo arising from the jury knowing of the witnesses' prior convictions did not warrant an adjournment, as the jury would be directed to base their verdicts on the evidence before them. Consequently, the Court denied the application for an adjournment.

The Court's decision highlights the importance of balancing the rights of witnesses to claim privilege against self-incrimination with the interests of justice, including the need to avoid unnecessary delays in the trial of serious charges. The Court also emphasised the need to consider the potential for unfair prejudice to the defendant in light of the evidence that will be adduced at trial and the directions that will be given to the jury.

Orders