Banks v The King - [2024] NZCA 607

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA595/2023
[2024] NZCA 607

BETWEEN	CHRISTOPHER JAMES BANKS Appellant
AND	THE KING Respondent

Hearing:	3 September 2024
Court:	Ellis, Peters and Downs JJ
Counsel:	M W Ryan and L J Jackson for Appellant B Hawes for Respondent
Judgment:	20 November 2024 at 1.00 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed.
CThe sentence of two years and six months’ imprisonment imposed on the charge of kidnapping is set aside and a sentence of 10 months’ home detention substituted.
DThe concurrent sentence of one month’s imprisonment imposed on the charge of failing to carry out obligations in relation to a computer search is set aside and a sentence of one month’s home detention substituted.
EThese sentences of home detention are to be served at the appellant’s EM bail address and on existing conditions. The standard conditions of home detention are also to apply.

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REASONS OF THE COURT

(Given by Peters J)

Following a jury trial in July 2023 before Judge M J Callaghan, Mr Banks was convicted of one charge of kidnapping and one of failing to carry out his obligations in relation to a computer search. The Judge sentenced Mr Banks to two years and six months’ imprisonment.[1]
[1]R v Toki [2023] NZDC 22097 [sentencing notes].
Mr Banks now appeals against conviction and sentence.

Background

We have taken the narrative that follows largely from the Judge’s sentencing notes.
At about 7pm on 25 March 2020, Mr Climo-Ryan, the complainant, was at a park in Christchurch meeting two associates.[2] Mr Climo-Ryan had with him some items which had come into the possession of his cousin, Mr Kerris, but which had been stolen from Mr Banks.[3]
[2]At [32].
[3]At [31].
Shortly after Mr Climo-Ryan’s arrival at the park, Mr Banks and Mr Toki arrived. The Judge was satisfied that the two associates had alerted Mr Banks and Mr Toki to Mr Climo-Ryan’s arrival.
Mr Banks and Mr Toki were wishing to talk to Mr Kerris regarding the stolen property.[4] Believing Mr Climo-Ryan to be Mr Kerris, Mr Banks and Mr Toki bundled him into Mr Banks’ vehicle, locked the car doors, and then drove him around Christchurch for about 40 minutes. In the course of doing so, Mr Banks and Mr Toki discovered their mistake. They then drove Mr Climo-Ryan’s address, where Mr Kerris was staying, intending to locate Mr Kerris.[5] Mr Kerris, anticipating trouble, declined to go outside to talk to Mr Banks and Mr Toki, and indeed made an escape.[6]
[4]At [33].
[5]At [35].
[6]At [36].
Mr Banks and Mr Toki then took Mr Climo-Ryan away again in an endeavour, unsuccessful as it happened, to find Mr Kerris.[7]
[7]At [39].
Whilst in the vehicle this second time, Mr Banks and Mr Toki insisted Mr Climo-Ryan telephone his partner as they believed there was CCTV footage recording what had occurred at the address and wished it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banks v The King

Details

AGLC: Banks v The King [2024] NZCA 607
Case: [2024] NZCA 607
Decision Date: 20 November 2024 at 1.00 pm

CaseChat Overview and Summary

Banks v The King concerned the admissibility of evidence obtained in breach of certain legal procedures. The defendant argued that the evidence obtained from a witness, Mr Kerris, was improperly obtained and should be excluded under section 30 of the relevant Act. The primary legal issue for the court was whether the evidence obtained from Mr Kerris, who volunteered information without being cautioned, should be excluded under the statutory provision. The court had to consider various factors, including the nature and seriousness of the breach, the probative value of the evidence, and whether any alternative remedies could adequately redress the defendant.

The court assessed the nature of the impropriety, noting that while the detective should have cautioned Mr Kerris, the intrusion on his rights was deemed to be at a low level, and the breach was not deliberate, reckless, or in bad faith. The court also considered the seriousness of the alleged offence, the probative value of the evidence, and the unavailability of any alternative remedies that could provide redress to the defendants. The court concluded that the exclusion of the evidence was not proportionate to the impropriety, as the evidence was crucial for the jury to determine the accuracy of another statement made during the investigation.

In reaching its decision, the court balanced the need for an effective and credible justice system against the gravity of the procedural breach. The court found that the evidence was not unfairly prejudicial and that its probative value outweighed the impropriety. The court also highlighted that no alternative remedy could provide adequate redress to the defendants, making the exclusion of the evidence disproportionate. Consequently, the court upheld the decision not to exclude the evidence.

The court's decision was that the evidence obtained from Mr Kerris would be admitted, as the impropriety was not severe enough to warrant its exclusion. The court's reasoning focused on the proportionality of the remedy and the necessity of the evidence in the context of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For present purposes, the relevant parts of s 30 of the Act are: 30 Improperly obtained evidence(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—(a)the defendant … against whom the evidence is offered raises … the issue of whether the evidence was improperly obtained …...(2) The Judge must—(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d) the seriousness of the offence with which the defendant is charged:(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:(f) whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:(h) whether there was any urgency in obtaining the improperly obtained evidence.(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety. The Judge declined to exclude the evidence.[15] Although the detective ought to have known to caution Mr Kerris, her initial enquiry was whether he had changed his mind about making a statement. In response to that enquiry, Mr Kerris volunteered his account of events. Accordingly, the intrusion on Mr Kerris’s rights was at a “low level” and neither deliberate, reckless, nor in bad faith.[16] [15]R v Toki [2023] NZDC 15809.[16]At [14(a)]. Other matters which the Judge took into account included that the alleged offending was serious; that no alternative remedy to exclusion could provide redress to Mr Banks and Mr Toki; the evidence was probative of an issue before the jury (namely whether Mr Climo-Ryan’s statement to Detective Fenton was accurate); and that the evidence was not unfairly prejudicial.[17] Mr Ryan acknowledges the serious nature of the offending but submits the other s 30(3) criteria favoured exclusion of the evidence. Mr Ryan submits the Judge erred particularly in his assessment of the seriousness of the detective’s breach of the Practice Note and the intrusion on Mr Kerris’s rights. Mr Ryan submits that the detective was reckless, and that her breach might even be considered deliberate, if it is assumed that she would have been familiar with the requirements of the Practice Note. As the Judge recognised, no remedy beyond exclusion of the evidence could provide redress to Mr Banks, and there was also a significant issue as to whether the detective’s account of what Mr Kerris had said was reliable. Mr Kerris did not have an opportunity to read what the detective had recorded, nor did the detective read it back to him, and nor had Mr Kerris signed the detective’s notebook.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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