Tamihere v The Queen - [2020] NZCA 554

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA204/2020
[2020] NZCA 554

BETWEEN	DAVID WAYNE TAMIHERE Appellant
AND	THE QUEEN Respondent

Court:	Kós P, French and Gilbert JJ
Counsel:	M S Gibson for Appellant R K Thomson for Respondent
Judgment: (On the papers)	11 November 2020 at 9 am

JUDGMENT OF THE COURT

AThe application for a non-party disclosure hearing is granted.
BThe Registrar should now take the steps required under s 26 of the Criminal Disclosure Act to enable the non-party disclosure hearing to take place.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

On 21 April 2020, the Governor-General referred the question of the 1990 convictions of Mr Tamihere for the murders of Ms Heidi Paakkonen and Mr Sven Hӧglin to the Court of Appeal pursuant to s 406(1)(a) of the Crimes Act 1961.
Mr Tamihere has now made an application for a non-party disclosure hearing pursuant to s 24 of the Criminal Disclosure Act 2008, in relation to footage held by TVNZ of a helicopter flight he took in 2012 over Crosbies Clearing and the Wentworth Valley in the Coromandel.

Relevant principles

The Court’s jurisdiction to order disclosure is derived from s 335(2)(e) of the Criminal Procedure Act 2011. However, the Criminal Disclosure Act governs the procedure by which an application seeking non-party disclosure must be made. Section 335(2)(e) does not replace the relevant parts of the Criminal Disclosure Act but operates in tandem with it.[1] Section 25 of the Criminal Disclosure Act provides that the Court may grant the application for a non-party disclosure hearing if:
(a)it is satisfied that all or part of the information that the defendant seeks—
(i)is likely to be held by the person or agency that the defendant alleges holds the information; or
(ii)is likely to be held by another person or agency; and
(b)all or part of the information appears to the court to be relevant.
[1]Bushby v R [2016] NZCA 527 at [6], citing Polybank v R [2013] NZCA 208; and S (CA539/2014) v R [2016] NZCA 518.
Relevance is defined in s 8 of the Criminal Disclosure Act as information that “tends to support or rebut, or has a material bearing on, the case against the defendant” and is “not an exacting test”.[2] However, this Court has held that, even at the s 25 stage, the more stringent test under s 335(2)(e) must also be taken into account, requiring that the appellant “lay a realistic evidentiary foundation” that the proposed disclosure is relevant. It is inappropriate for an appellant to conduct a general investigation into the availability of a particular ground of appeal.[3]

Submissions

[2]Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].

[3]M (CA68/2015) v R [2016] NZCA 631 at [11], citing Bushby v R, above n 1, at [10].

Mr Tamihere says that the footage is relevant and in the public interest, it will assist him in the…

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 Tamihere v The Queen

Details

AGLC: Tamihere v The Queen [2020] NZCA 554
Case: [2020] NZCA 554
Decision Date: 11 November 2020 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by David Wayne Tamihere against the Crown. The appeal concerns the 1990 convictions of Mr Tamihere for the murders of Ms Heidi Paakkonen and Mr Sven Hӧglin. Mr Tamihere's application for a non-party disclosure hearing, seeking footage held by TVNZ of a helicopter flight he took over Crosbies Clearing and the Wentworth Valley in 2012, was the subject of the court's consideration. The primary legal issues were whether the footage was likely to be held by TVNZ, whether it was relevant to the case, and if granting the application would meet the requirements of the Criminal Disclosure Act 2008. The court had to determine if the footage was likely to be held by TVNZ and if it was relevant to the appeal, while also considering the probative value and privacy implications of the disclosure.

The Court of Appeal considered the statutory framework and relevant legal principles, determining that the application for a non-party disclosure hearing should be granted. The court found that the footage was likely to be held by TVNZ and that it was at least broadly relevant to the appeal, specifically to the potential inconsistency between the discovery of Mr Hӧglin’s remains and the identification evidence. The court noted that the more stringent test under the Criminal Procedure Act 2011 was also met, as there was a realistic evidentiary foundation for the relevance of the footage at this preliminary stage. The Crown did not oppose the application, and the court deemed it appropriate for the application to proceed to a hearing under the Criminal Disclosure Act. The decision was based on the broad relevance of the footage to the appeal and the absence of significant privacy concerns.

The Court of Appeal granted the application for a non-party disclosure hearing, directing the Registrar to take the necessary steps under section 26 of the Criminal Disclosure Act to enable the hearing to take place. The court emphasised that the hearing would need to consider the probative value of the information, the extent of any reasonable expectation of privacy, and the effect on the fairness of the appeal process. The decision allowed Mr Tamihere's application to proceed, providing him an opportunity to present his case more effectively in the appeal against his 1990 convictions.

Orders