The Queen v Kerr

[2006] NZCA 1

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/05

THE QUEEN

v

VONRICK CHRISFORD KERR

Hearing:31 January 2006

Court:Anderson  P, O'Regan and Robertson JJ

Counsel:Appellant in person

M D Downs for Crown

Judgment:1 February 2006 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Robertson J)

[1]       This is an appeal which is said to be against a s 344A application heard by Judge Behrens in the District Court in Wellington on 7 September 2005 and refused in a judgment delivered on 10 October 2005.

[2]       The Judge had heard various pre-trial applications on 20 July including a s 347 application that had been dismissed in a reserved judgment of 8 August 2005.  That was subject to an appeal heard by this Court on 24 November 2005 and refused on 25 November 2005 on the basis that there was no jurisdiction to hear an appeal against a s 347 decision.

[3]       In his written submissions on this second appeal, Mr Kerr referred to R v Flyger [2001] 2 NZLR 721. There is nothing in that decision which alters the jurisdictional issue. Mr Kerr confirmed that there were no s 347 issues being raised in this present appeal.

[4]       He also made clear that he was not raising on the appeal any issue relating to the admissibility of evidence about what has come to be described as the ‘pig’s head experiment’.

[5]       The only point which Mr Kerr wished to raise was that the proposed witness, Deke Thomas Bannister, be precluded from giving evidence at his forthcoming trial on the basis that there was at least an inconsistency between what he had said to the police initially when he had been interviewed on 28 February 2002 and repeated in a  deposition which was created therefrom and what Mr Kerr anticipates he will say now in Court.   The appellant at times went further and spoke of perjury by Mr Bannister, although the controlling principle is no different.

[6]       In the course of his oral presentation, Mr Kerr kept coming back to issues of fairness and due process and the like which of course have all been dealt with in the s 347 applications and which, as he has earlier been advised and accepted, cannot be subject to appeal.

[7]       In particular Mr Kerr complained that the police failed to preserve a security video from the bar where the alleged incident took place on the night in question and the weapon which was allegedly used in the attack.  He also suggested that there may have been unfairness because of a difference of opinion he had had with a police officer in about 2000 (who was not directly involved in this investigation and was not a witness in the case) but which might have influenced the attitude of the prosecuting authorities towards him.

[8]       None of these are matters which go to the admissibility of Mr Bannister’s evidence. 

[9]       Mr Bannister was serving in the bar at the time of the alleged crime.  His evidence is therefore relevant.  Although there may be grounds to challenge his reliability and creditworthiness because of prior inconsistent statements he may have made, Mr Kerr has not demonstrated anything which goes to the issue of admissibility.

[10]     There was also a peripheral point that Rachael Taylor, who might give evidence, should be prohibited as Mr Kerr says she has been tainted or influenced by Mr Bannister.

[11]     All of these matters which Mr Kerr raises, if established, would be questions of weight, not admissibility.

[12]     There is no basis to exclude either person from giving evidence.

[13]     The trial Judge will continue to have a supervisory role in the case but there is no basis for interfering with the s 344A decision made by the District Court Judge. The further appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington