IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2016] NZHC Plaintiff. THE DISTRICT COURT AT AUCKLAND First Defendant

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1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2016] NZHC 2237 UNDER THE Judicature Amendment Act 1972, Section 4 BETWEEN AND KARL NUKU Plaintiff THE DISTRICT COURT AT AUCKLAND First Defendant THE ATTORNEY-GENERAL Second Defendant Hearing: 21 September 2016 Appearances: Applicant in Person by AVL M Corlett QC (amicus curiae) and J Oliver-Hood I R Murray for Second Respondent Judgment: 22 September 2016 JUDGMENT OF VENNING J This judgment was delivered by me on 22 September 2016 at am, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar Date Solicitors: Copy to: Crown Law, Wellington M Corlett QC, Auckland J Oliver-Hood, Auckland Applicant NUKU v THE DISTRICT COURT AT AUCKLAND [2016] NZHC 2237 [22 September 2016]

2 Application for review [1] Mr Nuku was convicted following a trial in the Auckland District Court before Judge Collins and a jury of one charge of aggravated robbery and one charge of unlawful possession of firearms. He was sentenced to imprisonment for eight and a half years. 1 [2] Mr Nuku appealed his conviction and sentence. The appeal against both was dismissed by the Court of Appeal in a decision delivered on 6 May Mr Nuku s application for recall of that decision was dismissed on 7 July [3] At the same time as pursuing the appeal Mr Nuku brought this application for judicial review. Grounds for review [4] In the statement of claim which he prepared himself, Mr Nuku seeks to raise the following grounds of review: (a) unfairness due to a breach of natural justice being the duty to act fairly ensuring that the procedural requirements of natural justice were met and that there has been an error of law ; (b) the application for a discharge pursuant to s 347 during the course of the trial on procedural grounds and illegality; [5] The first ground of review relates to the way the trial Judge dealt with the evidence of a Mr Banks during the trial. In relation to that Mr Nuku seeks: A declaration that His Honour Judge Collins acted unlawfully in not ruling the evidence of Joseph Banks inadmissible, and directing the jury on his evidence accordingly; and that I was therefore denied my right to a fair hearing, as prescribed for under section 25(a) of the NZBORA [6] On the s 347 issue Mr Nuku seeks a declaration: R v Nuku DC Auckland CRI , 10 June Nuku v R [2016] NZCA 179. Nuku v R CA7/2015, 7 July 2016.

3 on the procedural steps that His Honour ought to have done, but didn t; that failing to render a written decision, has left the Court Record deficient, and affected the obligations and duty of the Registrar; and that in the absence of reasons, there was no good reason for His [Honour s] decision. [7] He seeks to have the s 347 decision set aside as unlawful and for the decision to be reconsidered. [8] In a supplementary amendment to the statement of claim Mr Nuku also raised the issue that the Judge did not give the Crown an opportunity to be heard in response to his counsel s application for a discharge under s 347. Mr Nuku says that: amounts to such unfairness, as to have read down the statutory process, and therein voided the outcome. [9] The judicial review is not primarily directed at the conviction for possession of a firearm although Mr Nuku noted that there was a reference in the evidence of Mr Banks to Mr Pandey-Johnson having firearms. Factual background [10] It is necessary to put the issues Mr Nuku raises in their trial context and also to examine how the Court of Appeal dealt with the issues, to the extent that it did. [11] The Crown case against Mr Nuku on the aggravated robbery charge was that a co-accused Mr Pandey-Johnson and Mr Nuku together devised a plan to rob Mr Dingemans who was a former boyfriend of Mr Pandey-Johnson s sister. Mr Nuku was to visit Mr Dingemans. Once inside Mr Dingemans house, Mr Nuku would feed information to Mr Pandey-Johnson to facilitate a home invasion style attack. In his opening address Crown counsel characterised Mr Nuku as a Trojan Horse. The Crown alleged the attack was motivated by Mr Dingemans purported mistreatment of Mr Pandey-Johnson s sister. In accordance with the plan Mr Nuku went to Mr Dingemans house. He took a bottle of whiskey with him and proceeded to drink it with Mr Dingemans. Some evidence suggested he was seen to use a cell phone. Later, two intruders, one of whom the Crown allege was Mr Pandey-Johnson, entered the house and attacked Mr Dingemans and his flatmate and Mr Hutchinson. There was conflicting evidence as to whether Mr Nuku was also given a couple of

4 twacks. Mr Nuku s defence was that, like the others in the house, Mr Dingemans and Mr Hutchinson, he was a victim of the attack and was not involved with Mr Pandey-Johnson s attack on Mr Dingemans and Mr Hutchinson. [12] The Crown case against Mr Nuku was dependent, amongst other things, upon proving that Mr Pandey-Johnson was a principal offender. One of the witnesses called to give evidence of that was Mr Banks, an associate of Mr Pandey-Johnson. He and a Ms Davies gave evidence that Mr Pandey-Johnson told them that he had stabbed some guy in the face and knee with a screwdriver in an attack which was consistent with Mr Dingemans and Mr Hutchinson s accounts of the aggravated robbery. On Ms Davies evidence Mr Nuku was not present when Mr Pandey- Johnson made the admissions. Before Ms Davies gave evidence the Judge gave the usual direction that Ms Davies evidence about what Mr Pandey-Johnson told her was not evidence against Mr Nuku. [13] The Judge did not give a similar warning before Mr Banks evidence. In his evidence-in-chief Mr Banks said that Mr Nuku was present when Mr Pandey- Johnson made the admissions about his involvement. However, during crossexamination he changed that evidence. After Mr Banks evidence was concluded the Judge addressed that issue by giving another direction about Ms Davies and Mr Banks evidence: Things that they said that Mr Pandey-Johnson told them, the evidence is that when those things were said, Mr Nuku was not there. Now that evidence is evidence in the case of Mr Pandey-Johnson alone, so when you come to marshall and assess the evidence against Mr Nuku, you have no regard whatsoever to what it is that Ms Davies and Mr Banks said that Mr Pandey-Johnson had said about Mr Nuku. [14] The Judge repeated the warning regarding the use the jury could put Ms Davies evidence to in his summing up, but did not repeat the warning regarding Mr Banks evidence. The Court of Appeal decision [15] The Court of Appeal identified a number of particular points on appeal, including the ground of an insufficiency of evidence to support the conviction. The

5 Court also went on to consider whether there was a miscarriage of justice on any ground. 4 The Court accepted that the Judge s failure to direct the jury that aspects of Mr Banks evidence was inadmissible against Mr Nuku in his final summing up remarks was an error. However, the Court did not consider that error (nor other identified minor errors in process) were capable of affecting the outcome of the trial. [16] The second initial ground Mr Nuku raises, namely that the Judge failed to give reasons for declining the application for a 347 discharge was not considered by the Court of Appeal. Nor was the supplementary ground, that the Judge failed to hear from the Crown on the s 347 application. Principles/law [17] The starting point is that generally a decision of a District Court Judge to grant a discharge under s 347 is amenable to review, but the power to review a District Court Judge s decision under s 347 is only to be sparingly exercised. It is appropriate only in rare cases where by reason of the nature of the error of jurisdictional law in the District Court the intervention of the High Court is imperative (cf R v Crown Court at Norwich, ex parte Belsham; and Auckland District Court v Attorney-General). 5 [18] The need to sparingly exercise the power of judicial review is even stronger where an appeal right has been exercised. The Court should not engage in the exercise where the application for judicial review is in effect a collateral attack on the findings of a competent appellate court. [19] In Nicholls v Registrar of the Court of Appeal the Court of Appeal considered the relationship between an appeal and an application for judicial review. Tipping J, one of the majority Judges, held that where an appeal right has already been exercised and judicial review is undertaken: 6 the correct approach is this. This Court should first identify the error, or errors, which are said to vitiate the first instance decision. The second step is Crimes Act 1961, s 385(1)(c). R v Crown Court at Norwich, ex parte Belsham [1992] 1 All ER 394; and Auckland District Court v Attorney-General [1993] 2 NZLR 129, 136. Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 437.

6 to examine what effect the appeal has had on the error, or errors, found at the first stage. If the appeal has in substance removed the prejudice which would otherwise have resulted to the complaining party, the Court should exercise its discretion against relief, because overall no continuing prejudice from what went wrong at first instance can be shown. Analysis [20] To the extent that Mr Nuku s application for review depends on a challenge to the way the Judge dealt with Mr Banks evidence, and in particular the Judge s failure to expressly direct the jury in his final summing up about the use to which it could be put in the case against Mr Nuku, that issue was fairly and squarely before the Court of Appeal and dealt with by that Court. [21] Mr Corlett QC suggested that perhaps Mr Nuku s real concern was as to the admissibility of Mr Banks evidence. But Mr Banks evidence was properly admissible against Mr Pandey-Johnson. The point is that so far as it referred to Mr Pandey-Johnson s admissions it was inadmissible against Mr Nuku. The Court of Appeal directly considered the adequacy of the directions about that issue. At [85] of its decision the Court said, referring to the direction in the Judge s summing up in relation to Ms Davies: [85] Although it would have been desirable for the trial Judge to include reference to Mr Banks evidence in this direction, we have no doubt that the jury would have understood that the direction applied equally to the evidence of Mr Banks. As the Crown submits, because the evidence of Mr Banks related to the same conversation on which Ms Davies had given evidence, and given Judge Collins previous direction in relation to the admissibility of Mr Banks evidence, the jury would have been in no doubt the directions on Ms Davies evidence applied in the same way to that of Mr Banks. [22] Mr Nuku criticised the Court of Appeal for dealing with the issue in a cavalier way, but his remedy for such a complaint was to seek leave to appeal to the Supreme Court rather than pursuing this judicial review. In making that observation I make it clear to Mr Nuku I do not consider there is any merit in his criticism. [23] For Mr Nuku to seek to pursue the judicial review on the grounds the Judge failed to properly direct the jury about Mr Banks amounts to a collateral attack on the Court of Appeal decision. As such it is an abuse of process. The following

7 comments of Lord Diplock in delivering the majority speech in the House of Lords in Hunter v Chief Constable of West Midlands Police are applicable to the ground of review based on the challenge to Mr Banks evidence and the way the Judge dealt with it: 7 My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A. L. Smith L.J. in Stephenson v. Garnett [1898] 1 Q.B. 677, and the speech of Lord Halsbury L.C. in Reichel v. Magrath (1889) 14 App.Cas. 665, 668 which are cited by Goff L.J. in his judgment in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A. L. Smith L.J.: " the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court." The passage from Lord Halsbury's speech deserves repetition here in full: " I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again." [24] Mr Nuku s other challenges relate to the way the Judge dealt with the application for the s 347 discharge. As to that the Judge was entitled to determine the application for 347 discharge without hearing from the Crown. The application was Mr Nuku s application for a discharge. The Judge was obliged to hear Mr Nuku s application, which he did, but he had no obligation to hear from the Crown in response unless he determined it was necessary to do so. [25] That leaves the last issue, the Judge s failure to give reasons for declining the s 347 discharge. The Judge was entitled as a matter of practice and in the exercise of his control over the Court process, to dismiss the s 347 application and continue with the trial with reasons to follow. Judges commonly do so to enable trials to proceed so as not to inconvenience the jury with unnecessary delays. However, having indicated he would give reasons, the Judge should have given reasons unless counsel later advised they were not required. It appears from inquiries made on the Court 7 Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL) at , [1981] 3 All ER 727.

8 file that the Judge has not given reasons or at least if he has, they have not been transcribed. [26] While accepting the Court should give reasons for its decisions 8 the Crown submit it is apparent from the transcript of the discussion between counsel and the Judge during the s 347 application itself that the Judge identified the application was made on the basis of sufficiency of evidence and, in the course of his discussion with counsel, discussed the evidence that was available. The Judge went so far as to accept that there was no direct evidence that Mr Nuku was there but considered there was an available inference. [27] Ultimately it is clear that the Judge concluded that there was sufficient evidence to go to the jury on both counts. He said as much when determining to carry on with the jury. The Judge s error was in failing to provide reasons underlying that decision when he said he would. [28] In this case the Judge s reasons could have been quite brief, namely identifying in broad and summary terms the evidence that he considered sufficient for a reasonable, properly directed jury to convict so that the issue was one for the jury. [29] As Mr Murray submits the point is in any event moot. As discussed with Mr Corlett, the reasons could have been provided after verdict. If that is so, it is difficult to identify any prejudice to Mr Nuku arising from the failure to provide reasons. Importantly, although the specific issue of the Judge s failure to provide reasons was not addressed by the Court on appeal, the Court did consider the strength of the evidence in dismissing Mr Nuku s appeal. As the Court of Appeal observed in their judgment in relation to the aggravated robbery: [29] Taken together these strands of evidence provided a sufficient evidential material basis from which a jury could reasonably be satisfied to the required standard of Mr Nuku s guilt; indeed we consider that it was a strong Crown case. 8 Wilson & Horton v Crown [2000] 3 NZLR 546.

9 [30] As Mr Murray submits, the approach taken on a sufficiency of evidence appeal point is essentially the same as a Judge on a s 347 discharge application. 9 [31] In the circumstances there is no prejudice of the type required by the Court of Appeal in Nicholls to support the grant of any relief in this case. The appeal has effectively removed any possible prejudice to Mr Nuku from the Judge s failure to give reasons for declining the s 347 discharge. It is apparent the Judge considered there was sufficient evidence for a properly directed jury to reasonably convict, which is what they did. The Court of Appeal has subsequently confirmed that the evidence against Mr Nuku was sufficient to support the conviction. Result [32] The application for judicial review is dismissed. Costs [33] The respondents do not seek costs. The costs of the amicus are to be paid from public funds in the usual way. 10 Venning J 9 10 R v Owens [2007] NZSC 102, at [17]; and R v Webb [2013] NZCA 666. Judicature Act 1908, s 99A(1)(b).

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