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 RespondentJudgment:
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…
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