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Court of Appeal of New Zealand |
IN THE COURT OF APPEAL OF NEW ZEALAND |
ca235/00 |
Coram: |
Blanchard J Tipping J McGrath J |
Judgment (On the papers): |
21 September 2000 |
judgment of the court DELIVERED BY TIPPING j |
[1] The appellant, Tomasi Katonivualiku, was found guilty of robbery by a jury in the District Court at Tauranga. He was sentenced to 4 years imprisonment. He appeals against conviction.
[2] The appellant applied for legal aid in respect of this appeal. The Registrar declined the application after the necessary consultation pursuant to s15 of the Legal Services Act 1991. The decision to refuse aid was confirmed on review. The appeal is, therefore, to be determined on the basis of written submissions.
[3] On the morning of Sunday, 2 May 1999, Mr Katonivualiku allegedly entered a small restaurant in which the manager was working on his own. The Crown case was that Mr Katonivualiku entered the restaurant wearing a balaclava and carrying a box containing rags, ropes and a knife. He then proceeded to assault the manager, tying him up and taking from the premises cash and other valuables to the value of approximately $3,000. The attack and robbery were allegedly carried out at the request ofa third party who worked in the restaurant and who provided Mr Katonivualiku with information regarding the number of people likely to be present in the restaurant at the time of the robbery, and the presence of valuables within the restaurant.
[4] The appellant's main ground of appeal is the withholding of evidence by the prosecution, namely a gold necklace allegedly taken during the robbery. The appellant also advances a ground of general miscarriage of justice. Additionally, he has concerns relating to his health and physical wellbeing in prison.
[5] The appellant contends that the failure of the prosecution to locate and bring forward as evidence the gold necklace allegedly taken during the robbery amounts to a miscarriage of justice. Had the necklace been found, the appellant claims that this may have led to the identification of another as the true offender. It is now generally accepted by the Courts that there is a general duty of disclosure resting on the prosecution in the interests of securing a fair trial. (See, for example, R v Mason [1975] 2 NZLR 289 and Commissioner of Police v Ombudsman [1988] 1 NZLR 385). If however, as here, the proposed evidential item cannot be located, it cannot be said that there has been any withholding of evidence. The appellant has been convicted of taking the necklace, amongst other items, during the robbery. He may not now put forward the police's inability to find the necklace and bring it forward in evidence as a valid ground upon which to overturn the conviction.
[6] In respect of the appellant's health concerns, he is of course entitled to receive adequate medical assessment and treatment while in prison.But it is not our function on this appeal to go into that issue which the appellant should address to the prison authorities.
[7] It follows that the appeal against conviction fails.
Result
[8] The appeal against conviction is dismissed.
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URL: http://www.nzlii.org/nz/cases/NZCA/2000/208.html