Tahuri v Police HC Gisborne CRI-2011-416-023

[2011] NZHC 931

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2011-416-023

BETWEEN  TERENCE TAHURI CHARLIE DUNCAN Appellants

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 August 2011

Counsel:         A M Sceats for Appellant

C R Walker for Respondent

Judgment:      3 August 2011

ORAL JUDGMENT OF THE HON JUSTICE KÓS (Appeal against refusal to defer committal)

[1]      On  13  February  2011  Mr  Alan  Hubbard  was  shot  and  wounded.    This Mr Hubbard resides in Wairoa and is not the former financier who lives in Timaru. This Mr Hubbard’s friends call him “Scum”.   Apparently a term of affection, not abuse. He appears to have some connection with the Mongrel Mob.

[2]      The police think the appellants are the people who shot Scum.  They appear to have some connection with Black Power.  They are charged with wounding with intent to cause grievous bodily harm and have been remanded in custody.

[3]      The appellants first appeared in the Wairoa District Court shortly after the shooting.

TAHURI & DUNCAN v NEW ZEALAND POLICE HC GIS CRI-2011-416-023 3 August 2011

[4]      Formal written statements for committal purposes were required to be filed within 42 days, as the charges were laid indictably.1   An extension to 14 April 2011 was obtained.2

[5]      The statements were filed on 14 April 2011 as required.   Two statements were  redacted in  certain  respects.    Identification  details  for those  witnesses  are omitted. Due to an unexplained postal error Mr Sceats, solicitor acting for the defendants, did not receive the written statements until 23 April 2011.  Mr Walker, who appears for the Crown, accepts that the effect of this delay might be to give the defendants more time to make an oral evidence application.3   The Act does not count the 14 day time period for such an application from receipt, but rather from the filing date.

[6]      But the issue is academic anyway.  Mr Sceats did not file an oral evidence application at any stage, and does not seek one now.

Defendants’ application

[7]      Rather,  what  he  sought  (by  an  application  filed  on  21  April  2011)  was discovery of full witness statements and identification details of all witnesses – that is without redacting.4

Crown’s application

[8]      An application for an anonymity order was filed by the Crown.5   The Crown seek to preclude disclosure of the identification details of the two witnesses.   An anonymity application should have been filed at the same time as the written statements were filed – i.e. on 14 April 2011 – but for some reason it was filed only on  18  May  2011.    The  effect  of  such  an  application  is  to  permit  the  written

statements to be filed anonymously.  This is why the anonymity application should

1      Section 168(1), Summary Proceedings Act 1957.

2      Under section 168(2).

3      Under s 178(2).

4      That application was made under s 30 of the Criminal Disclosure Act 2008.

5      Under s 110 of the Evidence Act 2006.

have been filed on 14 April, contemporaneously with the filing of the written statements.  That filing was done on an anonymous basis, but irregularly.   But no point about that is taken by Mr Sceats.

Discussion

[9]      The two applications, while distinct, cross one another.  In effect the outcome of the anonymity application will determine the disclosure application.   Logically they should be dealt with together.  But neither has been dealt with at all yet.

[10]     In the absence of a s 178(2) application for the taking of oral evidence (which has not been made) the committal should proceed in the usual way before a Registrar as a standard committal.  That is, without hearing or considering the evidence.6

[11]     That should already have occurred in this case.

The appeal

[12]     An application was made in this case by the defendants for deferral of the committal hearing pending the resolution of the cross-applications.  It was refused by a District Court Judge on 14 July 2011.

[13]     Although  the  decision  of  the  District  Court  Judge  contains  none  of  the foregoing analysis, his instinct was sound.  The fact of the applications need not hold committal up, absent a s 178(2) application.

Result

[14]     The appeal is dismissed.   Following committal, which will be to the High Court, the Crown will relay the anonymity application, which will then have to be dealt with by the High Court Judge.7

Stephen Kós J

Solicitors:

A M Sceats, Gisborne for Appellants

Elvidge Partners, Napier for Respondent