Sami v Police - [2021] NZHC 3563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-365

[2021] NZHC 3563

BETWEEN
VIJAY SAMI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 November 2021

Appearances:

D P Nairn for Appellant

N D Cartwright for Respondent

Judgment:

21 December 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 21 December 2021 at 12.30pm

Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker, Auckland

SAMI v POLICE [2021] NZHC 3563 [21 December 2021]

Introduction

[1] Mr Vijay Sami (the appellant) appeals a pre-trial decision by Judge Harvey in the Manukau District Court on 27 July 2021 in which the Judge declined the appellant’s application for a disclosure order under s 30 of the Criminal Disclosure Act 2008 (the Act).1 The order sought by the appellant would have required the police as prosecutor to confirm whether or not they intended to produce and play the appellant’s DVD police interview at trial.

[2] The appellant faces one charge of assault with a weapon2 and one charge of assault in a family relationship,3 both arising from the same incident occurring on 12 January 2020. The complainant is the appellant’s former partner. The appellant was arrested that same day and agreed to undertake a voluntary police interview which was recorded on DVD.

[3] The appellant first appeared in the District Court at Manukau on 13 January 2020. He entered pleas of not guilty and was remanded on bail for a case review hearing on 30 April 2020. On 8 April 2020, counsel for the appellant requested the Police to provide prosecution disclosure and a list of prosecution witnesses. On 25 April 2020, counsel for the appellant filed an application seeking an order for disclosure of a formal witness and exhibit list. The application was determined and dismissed by Judge Phillips on 16 October 2020 in circumstances where the appellant’s counsel failed to appear at the hearing.

[4] On 25 May 2021, in anticipation of a Judge-alone trial scheduled for 10 June 2021, the Police prosecutor disclosed a further witness and exhibit list to the appellant. The exhibit list referred to the appellant’s Police DVD interview as follows:

3. DVD interview (prosecutor to determine whether played or not)

[5] A Judge-alone trial scheduled for 4 November 2021 was recently adjourned due to COVID-19 restrictions. A new date for trial is yet to be scheduled.

1      Police v Sami [2021] NZDC 15184.
2      Crimes Act 1961, s 202C(1)(b): maximum penalty five years’ imprisonment.
3      Crimes Act, s 194A: maximum penalty two years’ imprisonment.

Leave to appeal

[6] The appeal is brought under s 33 of the Act, which provides that a defendant may, with leave, appeal to the High Court against a decision concerning a disclosure order.4 In a minute dated 15 October 2021, Gordon J directed that the appellant’s application for leave to appeal should be heard at the same time as the appeal itself.5

[7] The provisions of the Criminal Procedure Act 2011 (CPA)…

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 Sami v Police

Details

AGLC: Sami v Police [2021] NZHC 3563
Case: [2021] NZHC 3563
Decision Date: 21 December 2021

CaseChat Overview and Summary

Vijay Sami, the appellant, brings an appeal against a decision by Judge Harvey in the Manukau District Court, which declined the appellant’s application for a disclosure order under s 30 of the Criminal Disclosure Act 2008. The appellant, who faces charges of assault with a weapon and assault in a family relationship, sought to determine whether the police intended to produce and play his police interview at trial. The appeal was heard on 29 November 2021 and the judgment was delivered on 21 December 2021.

The legal issues before the court were whether the appellant was entitled to the information under s 13 of the Act, and whether the appellant's interpretation of the Act was correct. The appellant argued that the Act required the prosecution to not only disclose particular exhibits, but also "advise explicitly" or "definitively state" which exhibits will be used at trial. The respondent, on the other hand, submitted that the purpose of the Act is to fairly inform the defendant of the nature of the prosecution case, and ensure equality of information between parties relevant to the charges and the Crown case. The Act does not purport to govern the conduct of the prosecutor’s case, or trial preparation, or trial process generally.

The court rejected the appellant's suggested interpretation of the Act and held that the use of the words “propose” and “proposes” in ss 13(3)(e), (f) and (g) clearly refers to what are necessarily provisional decisions made by the prosecutor regarding the information falling into those categories. The court further held that the purpose of the Act is to ensure that the prosecutor first provides initial disclosure and subsequently, if not guilty pleas are entered, full disclosure, in accordance with the specific requirements in s 13. The court found that the existence and contents of the Police DVD interview of the appellant were disclosed to the appellant in accordance with the requirements of the Act. The qualification as to whether or not the DVD interview would be introduced at trial has not in fact resulted in any unfair prejudice to the appellant.

The appeal was dismissed.

Orders