The Queen v Sikulei

[2008] NZCA 418

IN THE COURT OF APPEAL OF NEW ZEALAND

CA529/2008
CA539/2008
CA575/2008
[2008] NZCA 418

THE QUEEN

v

TAVITIA SIKULEI
ANITAE HARMONY MUTAFUA-LUI
MOSE FINO

Hearing:10 October 2008

Counsel:V Chand for Mr Sijulei

P T R Heaslip for Mr Mutafua-Lui
I S Sapolu for Mr Fino
S B Edwards for Crown

Judgment:10 October 2008 at 12.00pm

BAIL JUDGMENT OF BARAGWANATH J

BAIL GRANTED IN TERMS SET OUT IN [12].

____________________________________________________________________

REASONS

[1]       The appellants were convicted on 16 July 2008 of the crime of injuring with intent to cause grievous bodily harm.  Mr Fino was also convicted on a charge of injuring with intent.  He was sentenced to seven years imprisonment on the former charge of four and a half on the latter the sentences to be served concurrently.  Messrs Mutafua-Lui and Sikulei were each sentenced to five and a half years imprisonment.

[2]       Each has appealed against conviction and the fixture is for 19 November 2008.  All apply for bail pending the hearing.  Section 14 of the Bail Act 2000 states that the Court must not grant bail in such circumstances unless “satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so”. 

[3]       The onus is on the applicant to show cause why bail should be granted.  Among the considerations that may be taken into account are the apparent strength of the grounds of appeal.

[4]       On 2 October 2008 I declined Mr Fino’s application in so far as it relied on the proposition that there was no evidence to support the Crown case.  I did not then deal with the issue relating to the defence objection to the admission of evidence of a 111 call made by a witness to the alleged offending, Mrs Peneha, which raises also an issue as to the fact that the trial Judge did not permit her to be recalled for further cross-examination following admission of the 111 call as evidence.

[5]       Today Ms Edwards has helpfully taken me through the evidence in greater detail than Crown counsel had done on 2 October.  It is undesirable at this bail hearing to descend into the kind of detail that will be appropriate at the substantive appeal.  It is sufficient to say that in addition to the evidence against Mr Fino recounted at para [7] of the 2 October judgment there is evidence of an eye witness Mr Bell to the effect that Mr Fino participated in physical assault upon the complainant.

[6]       Mr Bell along with three eye witnesses deposes also to physical assaults by Messrs Sikulei and Mutafua-Lui upon the complainant.  The Judge accepted that theirs was a lesser role.  They arrived late, the Judge considered that they participated in the final phase of a protracted assault by all four kicking at the prone body of the victim and laughing.  It will be for this Court on 19 November to form an appraisal of the role played by the respective appellants in the episode.  There is at the least a substantial case, as the Crown contends, for all appellants having abetted the major offending by the fourth defendant Mr Crighton. 

[7]       The point at the forefront of today’s argument has been that the evidence of Mrs Peneha’s 111 call was admitted by the Judge and played at the conclusion of the Crown case.  The appellants challenged two rulings in this regard.  The first is the Judge’s decision to admit the evidence of the 111 call at all.  The second is the ruling not to permit Mrs Peneha to be recalled for cross-examination upon the 111 call.  Unfortunately inquiry by both counsel and the Registrar of this Court of the District Court has not yet produced the ruling or rulings made by the learned District Court Judge.  So, as Ms Edward submits, we do not know whether, as appellant’s counsel submit, the first ruling turns on s 35(2) of the Evidence Act 206. 

[8]       There is a point of very real practical importance and general interest that may arise in relation to the 111 call.  In R v Pennell [2003] 1 NZLR 289 and R v Manuchhima (CA272/05) 13 October 2005 the question of admissibility of 111 calls arose for consideration.  The res gestae principle of the common law was relied upon as a basis for admitting the evidence.  The Evidence Act 2006 does not in terms at least endorse the common law as to res gestae.  It appears to be arguable that 111 calls may be admissible under s 35(2).  It is possible but less likely that the general limits of the admissibility of hearsay evidence contained in s 18 may be overridden by the exercise of judicial judgment under s 22(5).  It is possible that the Judge had some other basis for admitting the evidence which has not occurred to counsel.  On the assumption that the Judge did rely on s 35(2), there is on the evidence a significant argument that there was an insufficient evidential basis for the conditions of subs (2) to be satisfied.  I do not of course determine the point which will be for decision by the Court.

[9]       I do not doubt that, if counsel in cross-examination advance such challenge to a witness’s veracity or accuracy that a previous statement including a 111 statement, becomes admissible, that does not give rise to an entitlement to cross-examine further on that document.  But on the limited submissions made, as is appropriate given the nature of the summary process of bail application, I am of the provisional view that there may be force in the defence contentions about the way in which the 111 call came in and distinct risk that natural justice has not been complied with. 

[10]     In these circumstances I am of the opinion that the appellants have shown cause why bail should be granted, namely that I am satisfied on the balance of probabilities it would be in the interests of justice in this case to do so.  That is because, should this Court on 19 November be of opinion that there has been a miscarriage, the likelihood may well be of an order for a new trial and a grant of bail. 

[11]     I am advised that each appellant was on bail prior to his conviction and that there are no circumstances which on an application of the conventional tests in s 8 would disentitle any one of them at this stage.

[12]     Bail will be renewed in the following terms.

Mr Fino

(1)To live at the address of 10 Baldwyn Place, Manurewa, South Auckland;

(2)To present himself at the door if called upon by the Police.

(3)Not to communicate or contact or attempt to communicate or contact either directly or indirectly with the complainant or any relative of the complainant or any Crown witness;

(4)Not to consume alcohol or drugs;

(5)Not to associate with any co-accused whilst on bail;

(6)Not to apply for any travel document (passport to remain surrendered);

(7)He is subject to 24 hour curfew at 10 Baldwyn Place, Manurewa unless in the company of Mutini Aiga, Faiva Aiga or Dennis Tala Ah Fook.

Mr Mutafua-Lui

(1)To live at 23 Martin Road, Manurewa.

(2)To present himself at the door if called upon by the Police;

(3)Not to communicate or contact or attempt to communicate or contact either directly or indirectly with the complainant or any relative of the complainant or any Crown witness;

(4)Not to consume alcohol or drugs;

(5)Not to associate with any co-accused whilst on bail;

(6)Not to apply for any travel document (passport to be surrendered);

(7)He is subject to 24 hour curfew at 23 Martin Road, Manurewa.

Mr Sikulei

(1)To live at Flat 1/14 Silver Creek Road Weymouth;

(2)To be and to remain at 1/14 Silver Creek Road between the hours of 8pm and 5am.

(3)Not to communicate or contact or attempt to communicate or contact either directly or indirectly with the complainant or any relative of the complainant or any Crown witness;

(4)Not to consume alcohol or drugs;

(5)Not to associate with any co-accused whilst on bail;

(6)Not to apply for any travel document (passport to be surrendered).

Solicitors:

Crown Law Office, Wellington