Cant v R Coa

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRonald Young J
Judgment Date30 Oct 2012
Neutral Citation[2012] NZCA 494
Docket NumberCA250/2010

[2012] NZCA 494

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, Ronald Young and Andrews JJ

CA250/2010

BETWEEN
Larry Gordon Cant
Appellant
and
The Queen
Respondent
Counsel:

P V Paino for Appellant

R J Collins for Respondent

Applications for nom-party disclosure of immigration records and forensic reports — appellant convicted of assault with intent to commit sexual violation — claimed complainant (who was in NZ illegally and was due to be removed by Immigration NZ) had filed a complaint against him, to gain an immigration advantage — wanted disclosure of immigration review files from Immigration NZ and office of Minister of Immigration to show such advantage had been gained — also wanted copies of reports referred to in items already disclosed but which were not on file — appellant had instructed a forensic science service which had prepared joint statement with ESR for jury — appellant wanted disclosure of communications relating to way DNA had been analysed — whether disclosure was “necessary for the determination of the case” under s389(a) Crimes Act 1961 (supplemental powers of appellate courts — ordering production of documents or exhibits).

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

The issue was whether disclosure was “necessary for the determination of the case” under s389(a) Crimes Act 1961 (“CA”) (supplemental powers of appellate courts — ordering production of documents or exhibits).

Held: There was no reason to doubt the evidence of the immigration officer as to the total extent of the review file. No reassurance was required from the Minister's office that there was anything further on the review file. There was no evidence to say there was or should be anything else on any ministerial file or on the Immigration file. The application, therefore, for further disclosure relating to the “review file” was refused.

Without deciding the relevance of the requested reports to the appeal, it was expedient in the interests of justice to require Immigration NZ to search their electronic records to see if any border and investigation reports relating to the complainant (being reports from anonymous calls) were readily available electronically. The Crown concluded that the reports relating to these anonymous calls were sufficiently relevant to be provided to C. The border and investigation reports should be similarly relevant. Thus, if the border and investigation reports were readily available then they should be disclosed to the appellant's counsel.

No order needed to be made with regard to the disclosure sought regarding the two forensic services. TFSS was instructed by the appellant. The appellant, therefore, had or was entitled to access all of the correspondence between that service and the ESR.

In any event, this information was not relevant to any appeal point and therefore (in the language of s389(a) CA) was not “necessary for the determination of the case”. The relevance was said to be that the prosecutor had relied upon the evidence of the appellant's DNA around the mouth of the complainant as evidence which showed he had been kissing her. After the appellant made it clear that he was not contesting he was with the complainant, no further reference was made by the Crown to the forensic evidence as in any way corroborating the complainant's evidence or as evidence of an intention to sexually assault the complainant.

Therefore, there was not any appeal issue relating to the ESR analysis of C's DNA material. C accepted he was involved in a scuffle with the complainant. Importantly, the complainant agreed C had spat at her. This provided an alternative explanation for C's DNA on the complainant's face. The Crown did not pursue at trial any claim that the DNA from the complainant's mouth corroborated her evidence that C had kissed her nor did they attempt to use the evidence in any other way.

Order that Immigration NZ search its files and if the requested reports were readily available, that they be disclosed to C.

JUDGMENT OF THE COURT
  • A The applications for further disclosure are granted only as follows: Immigration New Zealand will, if readily available, disclose to counsel for the appellant any border and investigation reports of anonymous calls 3, 10, 13, 16 and 17 relating to the complainant.

  • B The application for further disclosure in relation to ESR is refused as recorded at [45].

  • C The application for further disclosure against police is refused based on the agreements recorded in this judgment at [46](a) and (b).

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction
1

The appellant, Mr Cant, was convicted at trial in the District Court of assault with intent to commit sexual violation. He was ultimately sentenced in the High Court by Hugh Williams J in May 2010 to preventive detention. 1

2

The appellant has appealed his conviction. His appeal involves the following issues: legal representation at trial; evidence of the complainant's previous sexual experience; an allegation the Crown prosecutor at trial breached s 33 of the Evidence Act 2006; the circumstances of a Papadopoulos direction by the trial Judge; and a challenge to the DNA evidence. 2

3

This judgment is concerned with several applications for disclosure by the appellant.

Background facts
4

The Crown at trial alleged that the complainant left a central city Auckland bar early in the morning of 13 December 2006. The appellant, who was seated nearby, followed the complainant as she walked home. As she was walking along Mayoral Drive she was attacked by the appellant who pushed her into a garden, placed a hand around her throat and one on her knee. He kissed her and tried to undo the top button of her jeans. He then fondled her breasts on the outside of her clothing and tried to put his hands down her jeans. The complainant's evidence was that the appellant said he wanted to have sex with her.

5

Two passersby heard the complainant yelling. They went to intervene and the appellant then ran away. An immediate complaint to the police was made. Some 16 days later the complainant coincidentally saw the appellant. She told the police and the appellant was arrested. The appellant told the police that they had arrested the wrong person.

6

There were difficulties with the appellant's representation before and at trial and eventually the appellant represented himself during the trial. An amicus curiae was appointed to assist him.

7

In his opening statement to the jury the appellant said that he had been with the complainant at Mayoral Drive (contrary to his police statement). However, he said the complainant who was a Brazilian national had targeted him to lay a false complaint because she wanted to stay in New Zealand. In cross-examination of the complainant it was suggested that she had assaulted the appellant and had demanded drugs and money.

8

The appellant did not give evidence at trial.

The disclosure applications
9

The appellant now seeks non-party disclosure with respect to, Immigration New Zealand, the Office of the Minister of Immigration (relating to immigration matters and the complainant), ESR (regarding DNA evidence) and disclosure from the police to support his appeal.

10

We heard cross-examination of Ms Bentley who is a technical advisor at the Immigration Department and Detective Mark Ronald Greaves who was the detective assigned to the police investigation of the sexual assault on the complainant to assist us in the disclosure applications. Both gave evidence at the appellant's trial and filed affidavits in this Court relating to disclosure.

11

The Crown agrees that the current requests by the appellant for disclosure included requests previously made by the appellant.

12

We heard no argument on the question of jurisdiction of this Court to order disclosure particularly non-party disclosure on an appeal. The Crown accepted that if we concluded that there was material which was relevant and should have been disclosed then the Crown took the view an order for its disclosure should be made by this Court. 3

Non-party disclosure: Immigration New Zealand and Office of the Minister of Immigration
Background
13

The complainant in this case was a Brazilian citizen who had come to live in New Zealand. At the time of the assault she was illegally in New Zealand. After the assault and before the appellant's trial Immigration New Zealand proposed to remove her. There was a delay in removal so that she could give evidence at trial. The appellant was aware of this at trial. As it turned out the complainant was absent from New Zealand, on holiday, at the time the trial was to commence. There had been a number of delays and changes of trial dates. The Ministry of Justice paid for the complainant to return to New Zealand to give evidence and then for her to return to her holiday destination.

14

At trial the complainant's immigration status was the subject of considerable cross-examination. The essential point for the appellant was the claim that the complainant had made a false complaint of sexual assault against him in the hope that this would advantage her immigration status.

15

Prior to trial the Crown had obtained the complainant's Immigration file after she gave a “privacy” waiver. The prosecutor then decided what documents should be disclosed to the appellant from that file and provided those documents to him.

16

Prior to this appeal Crown counsel had sent the appellant's previous appellate counsel (Mr Lawry) a letter which explained why some documents on the Immigration file had not been disclosed. Current counsel for the appellant was provided with a copy of this letter at the hearing before us and an opportunity (which he took) to comment on the letter.

17

The disclosure now sought by the appellant from Immigration and the Minister's Office has as its...

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1 cases
  • Larry Gordon Cant v R
    • New Zealand
    • Court of Appeal
    • 23 Julio 2013
    ...CRI-2006-004-26731 , 20 May 2010. 2 The agreement between the parties is recorded in a Minute issued by the Court on 20 July 2011. 3 Cant v R [2012] NZCA 494 at [31], [45] and [46] [the first disclosure 4 The first disclosure decision at [2]. 5 The Report of the Judicial Working Group on......