R v Kalu [2007] NZCA 454 (19 October 2007)

Last Updated: 2 January 2015

IN THE COURT OF APPEAL OF NEW ZEALAND

CA449/07 [2007] NZCA 454

THE QUEEN

v

SIMIONE FEILOAKI TOHI KALU

Hearing: 16 October 2007

Court: Chambers, Randerson and Williams JJ Counsel: K C England for Appellant

K Raftery for Crown

Judgment: 19 October 2007 at 11.30 am

_{INTERIM JUDGMENT OF THE COURT}

A As judges of the High Court, we grant leave, by consent, for a New Zealand subpoena to be served on Jeffrey Fenech, a former constable of the New Zealand Police, in Australia.

_{B The appeal by the appellant remains reserved.}

REASONS OF THE COURT

[1] At the hearing of Simione Kalu’s appeal, we expressed some concern about the order that had been made in the District Court. We expressed a preliminary view

R V KALU CA CA449/07 19 October 2007

that Jeffrey Fenech’s evidence should be taken in Australia by video in advance of the trial. This would be possible under ss 103 and 105 of the Evidence Act 2006. Mr Raftery, for the Crown, tended to agree that that would be appropriate.

[2] Mr Raftery said that, if we decided to order that Mr Fenech’s evidence should be given by video, then he would need a subpoena. A New Zealand subpoena may be served on a witness in Australia under s 154 of the Evidence Act, but, before such a subpoena may issue, “leave of a Judge of the High Court” is required. To save time, since Mr Kalu’s trial is due to take place in the District Court on 5 November

2007, Mr Raftery asked if we, in our capacity as judges of the High Court, would grant that leave. Ms England, counsel for Mr Kalu, consented to that course.

[3] Following the hearing of the appeal, we reserved our decision.

[4] Since then, we have reflected on whether we have jurisdiction to entertain Mr Kalu’s appeal. The presiding judge, Chambers J, has had a telephone conference with counsel. Counsel accepted there may be jurisdictional difficulties, although Ms England wanted to think about that further. In any event, Mr Raftery confirmed in that telephone conference that the Crown would like leave to serve a New Zealand subpoena on Mr Fenech. Ms England confirmed she consented to that course.

[5] We are satisfied that it is appropriate to grant leave for a subpoena to be served on Mr Fenech. The Crown will need to comply with ss 156 to 158 of the Evidence Act.

[6] Mr Raftery and Ms England think it likely they will be able to resolve the question of how Mr Fenech should give his evidence without needing to trouble this court further. If that is the case, then a consent memorandum can be filed. If, however, agreement cannot be reached, then Ms England will promptly need to file submissions on the jurisdiction point. We do not set a time limit for those submissions: we shall leave that for Ms England’s judgment, bearing in mind the planned discussions with the Crown and the looming trial date. Mr Raftery must, however, file and serve any submissions in reply to Ms England’s within two

working days of receiving her submissions (if she makes them). We shall then deliver a decision on the appeal expeditiously.

[7] Pending any decision from this court, the formal position remains that the District Court order is in place, permitting the Crown to use Mr Fenech’s deposition statement.

Solicitors:

Crown Law Office, Wellington