NUKU v ATTORNEY-GENERAL [2020] NZCA 476

NUKU v ATTORNEY-GENERAL [2020] NZCA 476 [7 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA495/2019[2020] NZCA 476BETWEEN KARL NUKUApplicantAND ATTORNEY-GENERALRespondentCourt: Courtney and Collins JJCounsel: Applicant in personS M Kinsler and S K Shaw for RespondentJudgment:(On the papers)7 October 2020 at 11.30 amJUDGMENT OF THE COURTThe application to adduce further evidence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)[1] Mr Nuku applies to adduce further evidence in relation to an appeal against ajudgment in which Churchman J declined Mr Nuku's application for judicial review.1The appeal is set down to be heard on 26 November 2020.1 Nuku v Attorney-General [2019] NZHC 2309.Background[2] Mr Nuku is serving a sentence of life imprisonment. His judicial reviewproceeding against the Attorney-General relates to a visit to his cell in PāremoremoPrison on 4 June 2014 while he was away standing trial on charges for aggravatedrobbery and unlawful possession of firearms. He alleges that a Department ofCorrections employee, Ms Temm, and a police officer, Detective Reid conducted asearch of his cell. Both gave evidence in the High Court judicial review hearing,explaining that they briefly entered and observed Mr Nuku's cell as part of a tour ofthe prison.2 Churchman J concluded that there was no unlawful search carried out.Mr Nuku's application for judicial review was therefore dismissed.[3] The alleged search had already been raised in this Court in 2016 by Mr Nukuon appeal from the convictions for aggravated robbery and unlawful possession offirearms that followed his 2014 trial. This Court observed that:3[98] Mr Nuku complains that an officer involved in the investigation andwho was in Court throughout the trial, visited the prison where Mr Nuku washoused and was shown through Mr Nuku's cell at the prison. This visitoccurred while Mr Nuku was at Court attending his own trial. Mr Nukuconcedes that he cannot say that these events affected or compromised hisright to a fair trial. The actions of the police officer cannot therefore providea ground of appeal. Mr Nuku should pursue his concerns regarding thisconduct through appropriate avenues, as was discussed at the hearing.The application to adduce further evidence[4] Mr Nuku wishes to adduce evidence on appeal of:(a) the transcript of the appeal hearing at this Court in 2016; and(b) further cross-examination of Detective Reid.[5] The transcript includes discussions between this Court, Mr Nuku, and Crowncounsel about the appropriateness of a police officer entering Mr Nuku's cell andwhether this could have risked the outcome of the 2014 trial.2 At [56] and [67].3 Nuku v R [2016] NZCA 179.[6] Mr Nuku intends to cross-examine Detective Reid in respect of his purpose forbeing at the prison on the day of the visit and inconsistencies with the evidence givenby Ms Temm.Analysis[7] This Court can admit further evidence on appeal under r 45 of the Court ofAppeal (Civil) Rules 2005. In order to be admitted, the Court must be satisfied thatthe evidence is fresh, credible and cogent.4 Mr Nuku maintains that the threshold ismet in respect of both the hearing transcript and calling Detective Reid to giveevidence.[8] Mr Nuku submits that the transcript demonstrates that his concerns about thevisit are not "mere rhetoric" but have been "somewhat endorsed by the SeniorMembers of the Justice System" and while it is not "fresh", diligent attempts to obtainit before the High Court hearing failed. The Attorney-General accepts thatthe transcript is fresh and credible, but questions its cogency. The discussion betweenthis Court, Mr Nuku and Crown counsel in the context of a different, albeit related,appeal will not be of any assistance in determining this appeal.[9] We agree with the Attorney-General that the transcript should not be adducedon appeal. The comments made in this Court were made in the context of whetherthe visit to Mr Nuku's cell had any merit as a ground of appeal in his convictionappeal. The issues to determine in this appeal are different. The transcript hasno probative value.[10] Cross-examining Detective Reid on appeal would, Mr Nuku submits, providethis Court with the opportunity to evaluate inconsistencies in his evidence at theHigh Court hearing and determine his purpose for being at the prison on the day of thevisit. This evidence would support a finding that Detective Reid was carrying out anunlawful search of Mr Nuku's cell. The Attorney-General argues that it is notnecessary to cross-examine Detective Reid as any inconsistency in his evidence with4 Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59,[2007] 2 NZLR 1; and Erceg v Balenia Ltd [2008] NZCA 535 at [15].other witnesses at trial are merely an incident of difference in recollection, rather thana controversial issue to ventilate on appeal.[11] Mr Nuku is in effect asking to recall Detective Reid as a witness in this Courtto clarify matters he gave evidence on at trial. While some latitude could be affordedto him as a self-represented litigant, the evidence is not fresh. Submissions can bemade on any inconsistencies in the evidence at trial. Cross-examination ofDetective Reid is unlikely to assist this Court in determining Mr Nuku's appeal.Result[12] The application to adduce further evidence is declined.Solicitors:Meredith Connell, Wellington for Respondent