Namana v The District Court At Wellington Hc Wn

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 13 December 2011
• Docket Number: CIV-2011-485-1795
• Court: High Court
• Date: 13 December 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1795

Under the Judicature Amendment Act 1972

In the Matter of an application for judicial review

BETWEEN

Iherangi Eruha Namana

Applicant

and

The District Court at Wellington

First Respondent

and

The Attorney-General

Second Respondent

Counsel:

D A Ewen for the Applicant

No appearance for the First Respondent (abides)

A M Powell for the Second Respondent

JUDGMENT OF Mallon J

Introduction	[1]
Background	[2]
Error of Law	[17]
What would have happened if no error of law	[36]
Result	[44]

Introduction

1 Mr Namana was charged with being a party to an attempted aggravated robbery. A jury trial on that charge commenced in the District Court but, on the second day of the trial, it was aborted and a retrial ordered when an important Crown witness failed to appear. Mr Namana applies for judicial review of the District Court Judge?s decision to abort the trial and seeks an order quashing the retrial order. The basis for the application is an error of law in aborting the trial. The second respondent concedes that an error of law was made but says that the relief sought by Mr Namana should be declined.

Background

2 The aggravated robbery is alleged to have been attempted at a dairy in Masterton in the early evening on 28 October 2009. Mr Namana is alleged to have carried out the attempt with a co-offender, Mr Papali?i. Mr Papali'i was to be a Crown witness at Mr Namana's trial. According to information provided by Mr Papali?i to the police, Mr Namana gave Mr Papali'i an air pistol and drove him to the dairy.

3 Police Constable Keane, the officer in charge of this matter, had what he described as “extensive” dealings with Mr Papali?i from August 2010. This was because there was concern that he would be influenced by Mr Namana and his family in relation to his evidence. Constable Keane therefore had a number of meetings and telephone conversations “to keep him on board”.

4 In October 2010 there was an incident where Mr Papali?i ran away from Constable Keane. Constable Keane became concerned that Mr Papali?i had been in contact with Mr Namana?s father. On 4 February 2011 Constable Keane obtained a statement from Mr Papali'i. Mr Papali?i said that on 1 February 2011 Mr Namana?s father had approached him and said to him: “Have you got a story sorted out for trial?” and “I'll come up with something for you to say”. Mr Papali'i said that he replied “nah, nah, I'll get him out of it” and Mr Namana?s father said “I've got an ounce and 200 bucks here and we'll sort something out to say at the trial eh”.

5 After that Constable Keane described their dealings as being a lot better. However, in December 2010 Mr Papali'i was being interviewed about another matter. In the course of that interview he said that he did not want to name his alleged co-offender in that matter (the police understood this to be Mr Namana) because “last time it took me ages, like a year, to get back into my town.” He said that he wanted to live in Masterton because he does not have much family in other places. The police understood that this was a reference to the effect on him of having told the police about Mr Namana's involvement in the attempted aggravated robbery.

6 In the two weeks before Mr Namana's trial, Constable Keane had regular contact with Mr Papali'i and Mr Papali'i had come into see him at the station a number of times. At this time Mr Papali'i was on bail subject to an overnight curfew on other charges. Checks were made each night that Mr Papali'i was complying with the curfew. Up until 7 March 2011 there were no breaches of this condition.

7 Mr Papali'i was summonsed to attend Mr Namana's trial which was scheduled to commence on 7 March 2011. Mr Papali'i was not present at the bail address when a curfew check was carried out at 5.36am on 7 March 2011. The police made inquiries of family members and his partner. No-one knew where he was. His partner said she had been in contact with him on the afternoon of 6 March 2011 but he would not tell her where he was. The police obtained CCTV footage from the train station and saw a person that matched Mr Papali'i's description who was in the company of another person.

8 By the time the trial was scheduled to commence Mr Papali'i had not been located. The Crown advised defence counsel that they proposed to call Mr Papali'i on the second day of the trial. This was a change to the order of witnesses as previously advised to defence counsel, the Crown having earlier provided a witness list which had Mr Papali'i as the second witness. Counsel estimated that the trial would be finished by the third day.

9 Before the jury were empanelled a number of matters were discussed in Chambers. One of those matters related to Mr Papali'i's non-attendance. The Crown did not seek an adjournment of the trial but did seek a warrant for Mr Papali'i's arrest. After hearing evidence from the police officer about Mr Papali'i's curfew breach and efforts to locate him (refer [7] above) the warrant was granted. At this time it was realised that the summons was in error, because it had required Mr Papali'i to attend the High Court rather than the District Court. However this error did not explain Mr Papali'i's non-attendance. That is because the police had arranged to transport him to the District Court from the bail address that morning but Mr Papali'i had already disappeared.

10 The trial got underway. The evidence of several witnesses was given. Amongst other things there was evidence:

• (a) From the dairy owner: that a man, in his early twenties and about 180cms in height, had entered the dairy and pointed a gun right at the owner saying “gimme smokes gimme smokes” but had left quickly when the owner yelled at his wife to call the police.

• (b) From CCTV footage: that the offender had arrived in a car, had entered the dairy with a weapon and had then left.

• (c) From a car salesman: that the car in the CCTV footage was a Daihatsu Terios, which was quite a unique car, and which was “red mica” in colour.

• (d) From police enquiries: that of the nine Daihatsu Terios registered in the Wairarapa region, one of them was registered in the name of Mr Namana's father and was red in colour; that Mr Namana had been seen driving the car both before (on 2 October 2009) and after (on 29 October 2009) the attempted aggravated robbery; and that an infringement notice in the car was in the name of Mr Namana

• (e) From a search of the Namana family address on 29 October 2009: that an air pistol was found in Mr Namana's bedroom;

• (f) From an armourer: that the air pistol found in Mr Namana's bedroom had some noticeable similarities with the gun seen in the CCTV footage, and that the gun in the CCTV footage was more likely to be an air pistol than any other conventional pistol;

• (g) From police and Telecom enquiries: that the content of text messages and other evidence tended to show that the cell phone, which contained text messages which appeared to be about planning to carry out the robbery, was owned by Mr Namana; and the evidence also tended to show that the cell phone sending and receiving these text messages belonged to Mr Papali'i.

11 By about midday on the second day of the trial the police had still been unable to locate Mr Papali'i. At this stage, other than Mr Papali'i's evidence, there was just the evidence of the officer in charge to come for the Crown to complete its case. Before that evidence was called, the Crown applied to have Mr Papali'i's statement from the committal hearing and his police DVD interview admitted as hearsay statements under s 18 of the Evidence Act. The application was opposed on the basis that the circumstances relating to the statements did not provide a reasonable assurance of their reliability. The Judge declined the Crown's application.

12 In the course of the submissions on the hearsay application the Crown submitted that the evidence of Mr Papali'i, which was expected to be that Mr Namana had planned the robbery with him, had driven him there and had given him the gun, was of significant probative value. However the Crown said that it did not accept that without his evidence there would be insufficient evidence for the case to go to the jury. The defence disagreed and made an application under s 347 of the Crimes Act to discharge Mr Namana. The s 347 application was not determined. Rather, when the Judge ruled against the admission of the hearsay statements, the Crown applied for the trial to be aborted.

13 The Crown's application was made on the basis that: it was not in the interests of justice to continue the case in the absence of its “star” witness; and that it would be unfair to discharge Mr Namana when there were reasons of concern about the circumstances in which Mr Papali'i had not attended. The Crown submitted that the Judge could take this action because a trial judge had inherent jurisdiction to ensure trials are determined in the interests of justice.

14 The defence opposed the application. The defence queried whether the Judge had power to abort a trial in the circumstances that had arisen. The defence submitted that the Crown had elected to proceed with the trial rather than to seek an adjournment when it knew that an important witness was missing. The defence submitted that having made this election the accused should not have to bear the consequences. The defence submitted that it would give the prosecution “two bites at the cherry” with any deficiencies in the Crown case able to be improved upon on the next occasion.

15 Before determining the Crown's application, the Judge heard evidence about the police contact with Mr Papali'i prior to the trial (refer [3] to [6] above). The Judge also heard evidence from the police that, as a result of recent enquiries with Telecom,...