IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND
C.A. 10/89

BETWEEN

RUBENA RUBENA
of Tatawera, Company Manager
APPELLANT

AND

THE COOK ISLANDS POLICE
RESPONDENT

Before: Sir Clinton Roper CJ 
Sir Peter Quilliam
Mr Justice Barker

Counsel: Mr VAKT Ingram for Appellant
Mr Appleby for Respondent

Hearing: 5 February 1990
Judgment: 1 March 1990

JUDGMENT OF THE COURT

This is an application by the Appellant for a grant of special leave to appeal against a judgment of Mr Justice Dillon delivered on the 4th December 1989.

The case concerns the procedural requirements of the Criminal Procedure Act 1980-81 preliminary to trial. The relevant provisions of ss 99 and 100 of that Act are as follows:-

"99. Preliminary proceedings - (1) Where a trial of any person is to be heard by a Judge sitting with a jury pursuant to the provisions of either section 14 or section 16 or section 17 of the Judicature Act 1980-81 the following procedure shall apply:

(a) There shall be tendered to the Court and to the defendant or his counsel or solicitor written statements of each witness to be called by the prosecutor at the trial setting out the evidence to be adduced thereat by that witness;

Provided that where no written statement has been obtained from a witness, the prosecutor shall tender in lieu thereof a summary in writing of that evidence to be adduced by that witness at the trial and state the reasons why no written statement has been obtained;

(b) The written statement tendered under this section shall be -

(i) Signed by the person who made it; and

(ii) Contain a declaration made pursuant to section 653 of the Cook Islands Act 1915 by that person to the effect that it is true to the best of his knowledge and belief;

(e) The written statements shall be tendered to the parties as required by this section not later than 28 days before the date fixed for trial;

(f) Where the defendant is represented by counsel or a solicitor -

(i) He, if he so desires, may, not later than 14 days before the date of trial, notify the Registrar that he requires the written statements to be considered by a Justice for the purpose of a hearing in accordance with the provisions of paragraph (h) of this subsection;

(ii) If no such notification is given as herein provided, the defendant shall be deemed to have consented to his committal for trial and the defendant shall be so committed;

(g) Where the defendant is not represented by counsel or a solicitor, he shall, not later than 14 days before the date of the trial, be brought before a Justice, who shall conduct a hearing in accordance with the provisions of paragraph (h) of this subsection;

(h) At the hearing pursuant to paragraphs (f) and (g) of this subsection at which the prosecutor is present, the Justice shall consider all written statements tendered for the purpose of the trial, hear any submissions either party wishes to make, and then decide whether the defendant should be committed for trial;

(i) If the Justice decides that the defendant should be committed for trial, he shall by record on the information direct accordingly, and the defendant shall be so committed;

(j) If the Justice decides the defendant should not be committed for trial, he shall forthwith discharge the defendant;"

"100. Deposition of witness after defendant committed for trial - (1) Where, after a defendant has been committed for trial pursuant to section 99 of this Act, a Justice, on the application of the informant or the defendant, is satisfied that any person who was not examined as a witness under that section is able to give evidence, and that it is in the interests of justice that the evidence be taken, then, whether or not the trial has commenced in the Court, the Justice or, where the trial has commenced in the Court, the Judge may make an order that the evidence of that person shall be taken at a time and place fixed by the Justice or Judge, as the case may be.

(2) In every such case, the Justice or Judge, as the case may be, may modify any times specified in the said section 99 in such manner as he thinks fit and give any direction in relation to the taking of the evidence as he thinks necessary.

(3) Subject to subsection (2) of this section, the provisions of the said section 99, as far as they are applicable and with the necessary modifications, shall apply with respect to the taking of evidence under this section and to the evidence so taken as if it were taken pursuant to the said section 99."

It is to be noted that s 100 applies in the case of "any person who was not examined as a witness" under s. 99 in preliminary proceedings prior to committal for trial. S. 99 makes no provision for the "examination" of witnesses at any stage of the preliminary procedure and we can only assume that s 100 is intended to meet the case where no statement has been made by the person and tendered to the Court before committal.

The Appellant was originally charged with the burglary on the 2nd July 1988 of the First Club at Ararua; and the burglary on the 17th July 1988 of Meatco Company Limited at Tutakimoa, with alternative charges of unlawful entry. Statements by witnesses were duly taken and tendered in terms of s 99(1) of the Criminal Procedure Act but because of certain irregularities in procedure, Appellant's Counsel moved to have the charges dismissed. That application reached this Court and was unsuccessful.

The Appellant then exercised his right to have the written statements considered by a Justice pursuant to s 99(1) (f). That hearing took place before Mr John H Webb J P on the 14th June 1989. After a careful review of the statements before him, Mr Webb discharged the Appellant on the burglary charges but considered that there was a case to answer on the alternative charges of unlawful entry.

The Appellant then applied to the High Court for an order of discharge, pursuant to s 111 of the Criminal Procedure Act, on the ground that the statements before the Court did not disclose the commission of the crimes alleged. It appears that, before Mr Webb, Appellant's Counsel submitted that the test in such an inquiry was "will a properly directed jury find the Defendant guilty". Mr Webb rightly rejected that proposition but it appeared from Counsel's submissions to us that he still regarded that as the test. Of course the proper test is that a Judge may exercise his discretion if he is satisfied that it is unlikely that any jury, properly directed, would convict.

The application for discharge came before Dillon J on the 30th November 1989 and in a reserved decision of the 4th December 1989 he dismissed the application.

The Appellant then applied to Dillon J for leave to appeal to this Court pursuant to Article 60(2)(e) of the Constitution (as enacted by Constitutions Amendment No. 9) which reads:-

"...an appeal shall lie to the Court of Appeal from a judgment of the High Court -

(e) With the leave of the High Court in any other case, if in the opinion of that Court the question involved in the appeal is one which by reason of its general or public importance, or of the magnitude of the interest affected, or for any other reason, ought to be submitted to the Court of Appeal for decision."

The application to Dillon J contained 12 grounds in support, mostly bearing on evidentiary matters, and it is fair to say that none of them went to the issue of whether there was a question of "general or public importance" or involved an interest of such magnitude that justified a grant of leave. In his decision of the 8th December 1989 Dillon J refused leave in the exercise of his discretion.

The application before us for special leave is brought pursuant to Article 60(3) which reads:-

"(3) Notwithstanding anything in subclause (2) of this Article, the Court of Appeal may, in any case in which it thinks fit and at any time, grant special leave to appeal to that Court from any judgment of the High Court, subject to such conditions as to security for costs and otherwise as the Court of Appeal thinks fit."

The grounds relied on are the same 12 as were contained in the application to Dillon J and that the question involved is of general or public important or affects an interest of magnitude. We are satisfied that there is no such question involved as would have justified a grant of leave pursuant to Article 60(2)(e), but Mr Ingram submitted that that presented no problem, and nor did the circumstance that this is an appeal against the exercise of a discretion.

That is a very bold submission which we cannot accept. It is true that Article 60(3) contains no express limitation on this Court's discretion to grant leave but, having regard for the other rights of appeal granted by Article 60, whether as of right or with leave, it seems clear that Article 60(3) is designed to meet the special case. There is support for this approach in Thompson v Partridge 23 L.J. Chan. 158. That was a case where the relevant legislation provided that, after a prescribed time, no further evidence was receivable without special leave of the Court. At p.160 Knight Bruce LJ said:-

"Now, the act of parliament, turning to the 38th section, says that, after the time fixed for closing the evidence, no further evidence is to be receivable without special leave of the Court previously obtained for that purpose. Now, my opinion upon this act of parliament is, that by 'without special leave' is meant without leave grounded on a special case made for it, and if that be the true interpretation it is impossible to say here that the affidavit on behalf of the defendant in support of this application affords any special grounds at all. It is an affidavit rather bearing against his purpose than in favour of it. If there shall hereafter be a case which can be made upon special grounds the Court will hear it. As the case stands, my opinion is, that no special case has been made for it, and that without special grounds under the act of parliament the order asked cannot be made."

There is nothing "special" about the circumstances of the present case which is concerned primarily with matters of procedure and the admissibility of or the weight to be given certain evidence. It is clear from provisions in both the Judicature Act 1980-81 and the Criminal Procedure Act 1980-81 that it must be only in the very rare case, which this is not, that such matters could be the basis for a plea of special grounds.

Ss 60 and 61 of the Judicature Act and s 137 of the Criminal Procedure Act provide:

"60. Appeals not to be allowed for irregularities in procedure - No judgment of the High Court shall, on appeal to the Court of Appeal, be set aside on the ground of any error or irregularity in the proceedings of the High Court, or on the ground of any defect of form or substance in the judgment, unless the Court of Appeal is of the opinion that the proceedings of the High Court were not of the opinion that the proceedings of the High Court were not in conformity with natural justice or that a substantial miscarriage of justice has taken place.

61. Appeals not to be allowed for improper admission or rejection of evidence - No judgment of the High Court shall, on appeal to the Court of Appeal, be set aside on the ground of the improper admission or rejection of evidence, unless the Court of Appeal is of opinion that a substantial miscarriage of justice has taken place."

"137. Proceedings not be question for want of form - No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceedings, shall be quashed, set aside, or held invalid by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice."

We are satisfied that no miscarriage of justice has occurred up to this stage in the proceedings and the matters raised by Mr Ingram concerning the admissibility and weight of the evidence to be adduced can be raised again in the proper forum, namely, at the trial.

We think that the administration of justice is better served by an early trial. As the New Zealand Court of Appeal commented in R v Grace [1989] 1 NZLR 197, 199:-

"Permitting a trial to proceed in the face of an adverse ruling does not entail the loss of any appeal right. The possibility that an accused person may be acquitted might render any appeal unnecessary."

Grace was a case where the accused had gone to the Court of Appeal twice to contest pre-trial rulings.

The application for special leave is therefore dismissed.

SIR CLINTON ROPER CJ
SIR PETER QUILLIAM
MR JUSTICE BARKER