Cant v R Coa
| Jurisdiction | New Zealand |
| Judge | Ronald Young J |
| Judgment Date | 30 October 2012 |
| Neutral Citation | [2012] NZCA 494 |
| Docket Number | CA250/2010 |
| Court | Court of Appeal |
| Date | 30 October 2012 |
[2012] NZCA 494
Ellen France, Ronald Young and Andrews JJ
CA250/2010
IN THE COURT OF APPEAL OF NEW ZEALAND
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).
P V Paino for Appellant
R J Collins for Respondent
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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.
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B The application for further disclosure in relation to ESR is refused as recorded at [45].
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C The application for further disclosure against police is refused based on the agreements recorded in this judgment at [46](a) and (b).
(Given by Ronald Young J)
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
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
This judgment is concerned with several applications for disclosure by the appellant.
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.
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.
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.
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.
The appellant did not give evidence at trial.
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.
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.
The Crown agrees that the current requests by the appellant for disclosure included requests previously made by the appellant.
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
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.
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.
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.
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.
The disclosure now sought by the appellant from Immigration and the Minister's Office has as its rationale the same essential point; that the complainant made a false complaint against the appellant motivated by her desire to obtain an immigration advantage to enable her to stay in New Zealand. The disclosure sought is hoped to establish that in fact the complainant did obtain some form of immigration advantage arising from her complaint. This, it is said, is information that should have been provided to the appellant before trial. The alleged failure is said to support the appellant's appeal.
The appellant, therefore, seeks the following material from Immigration New Zealand:
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(a) the review branch file;
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(b) the investigation file;
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(c) Officer Katarina Jamieson's file;
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(d) Officer Kay Mitchell's file;
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(e) copies of all border and investigation reports relevant to the complainant;
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(f) file notes from Immigration between December 2006 and June 2007 relating to the complainant;
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(g) all emails, correspondence and file notes of phone calls between police and Immigration regarding the complainant;
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(h) all emails and file notes of phone calls between the Crown and Immigration officers in regard to the complainant.
As to (a) above, the appellant also sought disclosure of the complainant's review file held at the Office of the Minister of Immigration.
Immigration, about seven months after her complaint and before trial, decided the complainant should be deported. She was arrested. The complainant, through her lawyer, sought a review of that decision by the Minister of Immigration. The Minister granted the review and decided that the complainant should be able to remain in New Zealand at least in the short term. He granted her a work permit for two years.
The appellant sought disclosure of what he identified as “the review branch file”. This was disclosure of the Immigration review file relating to the review of Immigration's decision by the Minister of the complainant's immigration status. The appellant also sought disclosure of the equivalent Minister's review file. This request is relevant, therefore, to the Office of the Minister of Immigration and to Immigration New Zealand.
Ms Bentley's evidence was that Immigration's review file consisted of the application by the complainant for review of Immigration's decision, a letter by her lawyer supporting the application for review, a summary of the case provided by Immigration to the Minister, and finally, the Minister's decision. The appellant has had disclosure of these documents.
Counsel for the appellant expressed doubt as to whether these documents constituted the whole of the review file. He said he had expected correspondence and other documentation relating to the Minister's review.
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Larry Gordon Cant v R
...Auckland 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 Gr......