Larry Gordon Cant v R

• Jurisdiction: New Zealand
• Judge: Stevens J
• Judgment Date: 23 July 2013
• Neutral Citation: [2013] NZCA 321
• Docket Number: CA250/2010
• Court: Court of Appeal
• Date: 23 July 2013

Between

Larry Gordon Cant

Appellant

and

The Queen

Respondent

[2013] NZCA 321

Court:

Stevens, Heath and Cooper JJ

CA250/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Applications for further disclosure — appeal against conviction for assault with intent to commit sexual violations — application to remove Crown counsel — appellant was sentenced to preventive detention — substantive appeal concerned legal representation at trial; evidence of complainant's previous sexual experience; allegation the Crown prosecutor at trial breached s33 Evidence Act 2006 (restrictions on comment on defendant's right of silence at trial); circumstances of a Papadopoulos direction; and a challenge to DNA evidence — appellant claimed further disclosure would support allegation of existence of an extensive conspiracy involving criminal behaviour by those involved in his trial including perjury and corruption — guiding principles for post- conviction disclosure under Criminal Disclosure Act 2008 (“CDA”) — whether CDA applied — whether need for further disclosure made out — whether grounds for removal of Crown counsel.

Counsel:

Appellant in person, assisted by M V Lyttelton as McKenzie Friend

M F Laracy for Respondent

JUDGMENT OF THE COURT

• A All applications for further disclosure are dismissed.

• B The application to remove Crown counsel as counsel for the respondent is dismissed.

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

	Para No
Introduction	[1]
Background facts	[7]
Representation	[9]
Application for further disclosure	[13]
Category 1 – Lance Gibb	[17]
Category 2 – Detective Sergeant Aumua	[22]
Category 3 – the complainant's travel to South America	[25]
Category 4 – documents and information from private investigator and amicus at trial	[27]
Applicable legal principles	[29]
The test for disclosure	[41]
The four requests for disclosure	[45]
Category 1 – Lance Gibb	[45]
Category 2 – Detective Sergeant Aumua	[50]
Category 3 – the complainant's travel to South America	[51]
Category 4 – private investigator and amicus curiae at trial	[55]
Disclosure if the Act applied	[57]
Application to remove Crown counsel	[59]
Result	[66]

Introduction

1 The appellant, Mr Cant, was convicted following trial before Judge Gittos and a jury, of assault with intent to commit sexual violation. His sentencing was delayed. Although he had not by then been sentenced on 29 April 2010 the appellant filed a notice of appeal in this Court against conviction and any sentence that might be imposed. He was later sentenced to preventive detention. 1

2 The substantive appeal was due to be heard on 20 July 2011. On that occasion Mr Lawry for the appellant sought an adjournment. The topic of further disclosure by the respondent was also raised at that hearing. The parties were able to reach an agreement on the disclosure of further information. 2

3 A previous application for further disclosure was heard in this Court in October 2012. It involved three categories of documents. They concerned a request for disclosure in respect of border and investigation reports held by Immigration New Zealand which was granted, and applications for disclosure in relation to ESR and the police which were refused. 3

4 As articulated by this Court at the first disclosure hearing, the substantive appeal concerns five key 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. 4

5 Since that judgment the appellant has filed yet further disclosure applications. This has led to delays in the hearing of the substantive appeal, which is now set down to be heard on 1 August 2013. On 21 June, Randerson J directed that the following pre-hearing matters be dealt with on 11 July 2013:

• (a) the applications for further disclosure; and

• (b) an application to remove Crown counsel, Ms Laracy.

6 This judgment deals with these two issues.

Background facts

7 In the first disclosure decision, this Court summarised the background facts as follows:

[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.

8 The above summary sufficiently captures the background for the purposes of determining the present applications.

Representation

9 The appellant has been represented in the conduct of this appeal by (sequentially) Mr Lawry, Mr Newell and Mr Paino. In May 2013 Mr Paino sought leave to withdraw on the basis that he was not prepared to argue one of the grounds identified by the appellant, namely, that there had been a criminal conspiracy between those involved in his trial, including the police, various civilian witnesses, the prosecutor, his former trial counsel, the amicus curiae and the Judge (the trial conspiracy). The appellant indicated that he did not seek alternative counsel but instead wished for Mr Lyttelton (a non-lawyer) to file submissions on his behalf.

10 In a Minute issued on 14 May 2013 Randerson J granted Mr Paino leave to withdraw and indicated that the question of whether Mr Lyttelton should be permitted to speak for the appellant at the hearing of the appeal on 1 August 2013 was to be determined by the panel hearing the appeal.

11 So far as the hearing of the present applications is concerned, the appellant sought to represent himself, accompanied by Mr Lyttelton as a McKenzie Friend. 5 To assist the Court at the hearing and given the urgency in determining these issues, we reluctantly granted leave for Mr Lyttelton to speak on behalf of the appellant.

This was for the purposes of this hearing only and was expressly stated to be an indulgence allowed in the special circumstances of this hearing

12 Mr Lyttelton has filed three memoranda on the issues of further disclosure and representation. These are dated 31 May, 11 and 17 June 2013. The latter two documents are essentially duplicates and we were asked to put aside the memorandum of 11 June and to consider the two sets of submissions dated 31 May and 17 June. At the hearing Mr Lyttelton also referred us to the first eight pages of his submissions dated 1 July 2013 filed for the purposes of the substantive appeal. This material was addressed by Mr Lyttelton orally at the hearing. For the respondent, Ms Laracy has filed separate memoranda on each issue.

Application for further disclosure

13 There are four key categories of documents (and information 6) sought by the appellant. Three of these categories are referred to in a letter of Mr Paino to counsel for the respondent dated 18 September 2012. The requests were repeated in the memorandum of the appellant's outstanding disclosure and discovery requests dated 31 May 2013. A fourth category of documents and information was raised as a new disclosure request in the appellant's memorandum dated 31 May 2013. 7 We will describe the categories below.

14 The appellant claims that further disclosure will support his allegation of the existence of an extensive conspiracy involving criminal behaviour by those involved in his trial including perjury and corruption. More particularly the appellant says that all those identified as participants in the trial conspiracy were engaged in a criminal conspiracy to bring a false prosecution, or at least to deliberately misrepresent the truth in respect of certain aspects of the evidence adduced at trial. These allegations are in part summarised in the appellant's submissions filed earlier 8 in support of the appeal against conviction as follows:

Many criminal acts have been committed by way of a chain conspiracy, with a common purpose being to secure the appellants conviction and sentence to a life sentence of preventative detention, as follows;

A conspiracy was formed to aid, abet, counsel and incite [the complainant] to make a false complaint against the appellant – of attempted sexual violation – such that if convicted, the appellant would receive a life sentence of preventative detention.

• • This...