The Queen v Samy (reasons of the court)

[2007] NZCA 148

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA123/05
[2007] NZCA 148

THE QUEEN

v

KEM RAJU SAMY

Hearing:16 April 2007

Court:Glazebrook, Randerson and Ronald Young JJ

Counsel:P J Kaye for Appellant

A R Burns for Respondent

Judgment:16 April 2007 

Reasons for Judgment:     23 April 2007 at 11am

JUDGMENT OF THE COURT

A        The application for an adjournment is declined.

B        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

1. On 23 January 1994, Mr Samy was convicted, following a jury trial in the Auckland District Court, of the rape of his wife.  This was his third trial.  After the first trial he successfully appealed.  The second trial resulted in a hung jury.

2. This is a rehearing of his appeal against conviction in terms of R v Smith [2003] 3 NZLR 617. The sole ground of appeal is that a miscarriage of justice occurred because Mr Samy’s counsel failed to call medical evidence to explain Mr Samy’s medical condition in relation to his mobility and physical ability to commit the offence.

3. Other grounds had been put forward in Mr Samy’s notice of appeal of 23 March 2005 but these were abandoned.

4. Mr Samy was returned to Fiji at the completion of this sentence.  He was refused entry into New Zealand to prosecute the rehearing of his appeal.

Mr Samy disappears

1. Mr Samy has sworn one affidavit in relation to this appeal (dated 1 November 2006).  An affidavit from Mr Samy’s counsel at trial, Mr Tennet, was filed in reply.  Mr Samy was to swear another affidavit providing fuller details of his medical condition and also commentary on Mr Tennet’s affidavit.  However, he failed to attend the appointment to swear that affidavit and has subsequently been unable to be located.  Mr Kaye has, however, spoken to a friend of Mr Samy’s who has been in contact with Mr Samy.  Mr Samy has not contacted Mr Kaye directly.

2. Before his disappearance, arrangements had been made, however, for Mr Samy to be cross-examined on his affidavits via video-conference.  For obvious reasons, this cross-examination did not occur.

Adjournment application

1. Mr Kaye accepted that, without Mr Samy’s second affidavit, there was no material before the Court on which to base the appeal.  He therefore applied for an adjournment to provide the opportunity for Mr Samy to swear his second affidavit and also to give further time so that medical evidence could be provided as the doctor involved did not see the provision of evidence as an immediate priority.

2. This adjournment application was declined on 16 April 2007.  Mr Kaye confirmed that it was clear from talking to Mr Samy’s friend that Mr Samy was aware of the hearing date of the appeal.  Mr Kaye also confirmed that Mr Samy knew of the hearing date in any event through communications from the Court.

3. Mr Samy has, therefore, in full knowledge of the hearing date, chosen to make himself unavailable.  He has also chosen not to provide evidence in support of his appeal.  In our view, he must abide by those choices.  This appeal has already had a chequered history and, in the circumstances, no further indulgence should be afforded to Mr Samy.

4. Without Mr Samy’s evidence there is nothing to support the appeal and it must be dismissed. 

The appeal

1. The appeal, in any event, had no chance of succeeding.

2. Mr Samy gave evidence at his trial.  He said that he had had an operation on his ankle and this was confirmed by his brother and sister in evidence.  Mr Samy, however, did not say in evidence that the operation made him incapable of committing the offence in the manner alleged.  If that had been the case, that would have been an obvious point for him to have made.  It was, therefore, never put in issue at trial that Mr Samy was incapable of performing the acts in question.

3. In any event, it appears from the notes of evidence of his second trial (which resulted in a jury disagreement) that the operation was minor.  Mr Samy said at that trial that he was admitted to hospital at 8am and discharged at 11.30am.  The purpose of the operation was to remove a screw from his ankle (following an accident in 1990).  He received no medication after the operation but a nurse from North Shore hospital visited him every day.

4. Further, aside from the fact that even now we have no evidence from Mr Samy that would suggest he was incapable of committing the offence because of the operation, there is also no medical evidence before the Court.  We accept that there have been difficulties with the doctor swearing his affidavit but he could have been subpoenaed.

Result

1. For the above reasons, on 16 April 2007, the application for an adjournment was declined and the appeal was dismissed.

Solicitors:
Meredith Connell, Auckland
Crown Law Office, Wellington