Hohipa v R

[2015] NZCA 73

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1. Hohipa v R

1. Court of Appeal    Wellington   CA576/2014; [2015] NZCA 73

   27 November 2014, 18 March 2015

   Ellen France P, Miller and Cooper JJ

Criminal  practice  and  procedure  –  Pre-trial  appeals  –  Leave  to  appeal  –

1. Approach to be taken by Court of Appeal under Criminal Procedure Act 2011 – When  cases  to  be  determined  on  papers  –  Criminal  Procedure  Act  2011, ss  215, 216, 217, 218, 329 and  331.

Evidence – Voice identification – Standard of proof – Criminal Procedure Act

2011, s  217 – Evidence Act 2006, s  46.

1. Dennis  McCally  Hohipa  (Mr Hohipa)  was charged  with  being  a party  to a methamphetamine    conspiracy.   The   police   had   monitored   a   number   of telephones. Detective Baker listened to more than 200 telephone calls and transcribed them with the aid of telephone logs which identified the telephone numbers in use. He was said to have become familiar with the voices speaking

2. and the topics of conversation.  The Crown relied on two of these telephone calls to establish  Mr Hohipa’s  participation  in the conspiracy.  In neither call was  his  name  mentioned.  In  October  2013,n  cash,  drug  paraphernalia  and stolen goods were found by police in his home. Detective Kirk was one of the Police who entered his home. He spoke to him then and later at the Gisborne

3. Police  Station.  Detective  Baker  played  Detective  Kirk  a  recording  of  a conversation from the Hohipa’s home phone. It began with a woman greeting the other person as Dennis. Detective Kirk identified that person as Mr Hohipa. Three more calls were played, in two of those a person was addressed as Deni or  Dennis.  A fourth  call,  one  of  those  relied  on  to  establish  Mr  Hohipa’s

4. participation in the conspiracy was played. Detective Kirk identified Mr Hohipa as each call was played.

   Mr Hohipa sought leave to appeal from a pre-trial  ruling that the voice identification  was sufficiently reliable to go to a jury.

Held: 1 The previous approach to granting of leave to pre-trial appeals should

1. be carried over under the new Act. Where the Court of Appeal was a first appeal court considerations  to be taken  into account  in deciding  an application  for leave to appeal against a pre-trial ruling. These considerations  include;

As favouring granting leave:

(a)  the argument  was based on a novel point or was of significance  for

1. other cases;

   (b) there was conflicting authority on the issue, the application related to an  identified  error  of  law,  the  admissibility  of  the  evidence  was important to one of the parties;

(c)  the matter could not be dealt with adequately in any appeal after the trial; or

(d)  there  were  only  limited  post-trial  appeal  rights  and  the  proposed grounds of appeal were arguable.

As pointing towards refusing leave:   5 (a)  the issue would need to be revisited at trial or was best dealt with in

the context of the trial;

(b)  the evidence would not make a significant difference to the…