King v Police - [2014] NZHC 1380

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000392 [2014] NZHC 1380

BETWEEN
MALCOLM RICHARD KING

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 June 2014

Counsel:

JW Griffiths for Appellant
NJ Small for Respondent

Judgment:

19 June 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 19 June 2014 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Public Defence Service, Auckland.
Crown Solicitor, Auckland.

KING v NZ POLICE [2014] NZHC 1380 [19 June 2014]

Introduction

[1] This is an appeal that turns on the admissibility and cogency of CCTV footage taken allegedly of the appellant, Mr King, as he crept around a property occupied by the complainants.

[2] Mr King and the first complainant had lived together for approximately nine years but the relationship came to an end in early 2013. Since that time the first complainant maintained that there had been ongoing difficulties with Mr King who had not left her alone and at one time he had slit his wrists in front of her and her daughter.

[3] The second complainant is a good friend of Mr King’s former partner and had got to know him during their relationship. She had been present during incidents with Mr King, and asserted that the wrist slitting incident occurred at her house.

[4] Following these incidents, that occurred after the separation, the first complainant obtained a protection order against Mr King. After this the complainants served Mr King with two trespass notices in respect of both of their home addresses.

[5] On 28 April 2013 the first complainant was at the address of the second complainant. That night, shortly after midnight, the CCTV camera that at the address captured 10 seconds of footage showing a man creeping towards the house, looking around the outside of the house and then turning and leaving. Having looked at the CCTV footage the two complainants both identified the man as Mr King.

[6] At the trial it appears that the CCTV footage was admitted as evidence without objection. In this appeal Mr Griffiths for Mr King submits that the evidence should not have been admitted and should, for the purposes of the appeal, be regarded as inadmissible. He also submits that the evidence clearly fell short of the required standard in establishing that the person on the CCTV footage was Mr King. At times in his submissions the two issues of admissibility and proof to the required standard were conflated.

[7] There were four limbs to Mr Griffiths’ submissions. The first two related to threshold admissibility under ss 7 and 8 of the Evidence Act 2006. The third related to admissibility under s 45 of the Evidence Act. The fourth was an assertion that identification was not proven beyond reasonable doubt.

Was the CCTV footage admissible under ss 7 and 8?

[8] Mr Griffiths argued that the evidence was not admissible under s 7 of the Evidence Act because it was irrelevant and…

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 Police

Details

AGLC: King v Police [2014] NZHC 1380
Case: [2014] NZHC 1380
Decision Date: 19 June 2014

CaseChat Overview and Summary

The case of King v Police before the High Court of New Zealand involved an appeal by Malcolm Richard King against his conviction for trespass. The appeal centered on the admissibility and cogency of CCTV footage that allegedly captured King trespassing at the property of two complainants. The footage was taken on the night of 28 April 2013, showing a man creeping around the complainants' house. Both complainants identified the man in the footage as King, who had previously lived with one of them. The trial judge accepted their identification, leading to King's conviction. King's counsel argued that the CCTV footage should not have been admitted as evidence and that it did not sufficiently prove that the person in the footage was King. The court considered several legal issues, including the admissibility of the CCTV footage under sections 7 and 8 of the Evidence Act 2006, and the admissibility under section 45 concerning visual identification evidence. The court found that the CCTV footage was relevant and not unfairly prejudicial, thus satisfying sections 7 and 8. Regarding section 45, the court held that the evidence was admissible unless King proved it was unreliable on the balance of probabilities. The court concluded that the complainants' identification was credible because they had known King intimately and were well-placed to recognise him. The appeal was dismissed, affirming King's conviction.

Orders