King v Attorney-General - [2022] NZHC 695

SUPPRESSION ORDERS IN ACCORDANCE WITH PARAGRAPHS [10] TO [13] OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2016-441-69

[2022] NZHC 695

BETWEEN
ZION HIONA KING

Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing: 26 July–2 August 2021

Counsel:

R E Harrison QC and H Phillips-Williams for Plaintiff

A M Powell, J B Watson and R M McMenamin for Defendant

Judgment:

7 April 2022

JUDGMENT OF ELLIS J

Table of Contents
Paragraph

INTRODUCTION [1]

Some preliminary matters [3]

The development of the claim: what is not now in issue [3]

Presumption of innocence [8]

Suppression [10]

BACKGROUND [14]

Ms Maihi-Carroll’s death [14]

The Police investigation [16]

Mr King [18]

Michael and Eddie Nathan [27]

KING v ATTORNEY-GENERAL [2022] NZHC 695 [7April 2022]

The Hatuma inquiries [35]

The Criminal Investigations (Bodily Samples) Act 1995 [54]

The DNA analysis in this case [62]

The relevant samples [62]

ESR staff [66]

The testing done [68]

Depositions [80]

Laying the indictment [83]

The trial approaches [88]

Mr Williams QC takes over [103]

The first s 347 application [107]

More ESR testing and reporting [115]

The trial begins—and ends; second s 347 application [124]

Updated ESR reports [135]

Further developments [138]

The review by the Crown Solicitor and the third s 347 application [141] Mr King’s attempt to obtain ex gratia compensation [147]
MR KING’S CLAIMS [149]

Evidence called by Mr King [151]

BREACH OF FAIR TRIAL RIGHTS [154]

The relevant rights [154]

The alleged breaches [166]

Criminal disclosure in New Zealand: the relevant rules [169]

The Criminal Disclosure Act [169]

The position before the CDA [172]

The 1992 Prosecution Guidelines [173]

What was the obligation here? [176]

Whose obligation was it? [178]

Discussion [182]

Y-STR comparison  [183]
The ashtray  [195]
Did the prosecutor intentionally withhold this information?  [199]
Did the prosecutor know or ought the prosecutor reasonably
to have known that this information was material to the defence?                   [201]
Did withholding the information violate Mr King’s rights under
ss 24(d) and 25(a) of NZBORA?  [202]
Has Mr King suffered harm as a result?  [203]
Conclusion  [204]

ARBITRARY DETENTION [205]

Scope of the claim (non-disclosure) [206]

Arbitrary detention: some general principles [208]

Judicial scrutiny of prosecutorial decisions [214]

The relevant guidelines [222]

Discussion [223]

CONCLUSION [231]

INTRODUCTION

[1] On 26 March 2008, Zion King was charged with the murder of his neighbour, Chattrice Maihi-Carroll, whose body had been found at her home in Napier some two months before. Following depositions, Mr King was indicted. But in February 2010, at the commencement of his trial, the Crown Solicitor and the High Court agreed with Mr King’s lawyer that the charge should be dismissed.1 By that time, Mr King had spent around 16 and a half months (489 days) in custody (either on remand or serving out the balance of a previous sentence, following recall) and a further six and a half months on bail.

1 The charge was dismissed under what was then s 347 of the…

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 King v Attorney-General

Details

AGLC: King v Attorney-General [2022] NZHC 695
Case: [2022] NZHC 695
Decision Date: 7 April 2022

CaseChat Overview and Summary

Zion King was charged with the murder of Chattrice Maihi-Carroll, but the charge was dismissed in 2010. He now claims that his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) were breached by the alleged failure of the Crown to disclose information relating to DNA testing conducted after his arrest. He also claims that the Crown Solicitor should have appreciated the evidential deficiencies in the prosecution case and sought to have the charge dismissed at an earlier point in time. The court was required to decide whether there was a relevant non-disclosure that breached Mr King's fair trial rights under ss 24(d) and 25(a) of the NZBORA, and whether the Crown Solicitor's failure to critically assess the evidential basis for the prosecution amounted to arbitrary detention under s 22 of the NZBORA. The court found that there was no relevant non-disclosure and that the Crown Solicitor's decision to maintain the prosecution did not amount to an abuse of process. The claim for NZBORA compensation and/or declarations was dismissed.

Orders