Kingi v R - [2016] NZCA 160

IN THE COURT OF APPEAL OF NEW ZEALAND

CA503/2015
[2016] NZCA 160

BETWEEN	ELIJAH KORO KINGI Appellant
AND	THE QUEEN Respondent

Hearing:	4 April 2016
Court:	Wild, Clifford and Brewer JJ
Counsel:	PHH Tomlinson for Appellant K S Grau for Respondent
Judgment:	2 May 2016 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to bring the appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

On three grounds Mr Kingi appeals against seven of the nine convictions entered against him on charges of dealing in methamphetamine. An appeal against sentence is advanced only to the extent that a downward adjustment in sentence will be needed if the conviction appeal succeeds.
The three grounds of appeal against conviction are:
(a)Prejudicial use of Mr Kingi’s name: Attribution to Mr Kingi of cellphone 020 4021 2766 (cellphone 2766) by the Crown in the schedules of cellphone calls and texts it put in evidence in the trial was highly prejudicial to Mr Kingi with no probative value.
(b)Insufficient evidence Mr Kingi used cellphone 2766: There was insufficient evidence on which a properly directed jury could be satisfied beyond reasonable doubt that Mr Kingi was the user of cellphone 2766.
(c)Unavailability of closing addresses and summing-up: The unavailability of counsel’s closing addresses and the Judge’s summing‑up (because the Court transcription system was not operating) means this Court cannot know how the trial Judge dealt with the issue of attributions, how he directed the jury as to the use of evidence on the various counts, or how he summed up the defence case.
The appeal was filed 45 days out of time. The Crown did not oppose an extension of time and, accordingly, we grant the application for extension.

Background

Following a trial before Judge Gibson and a jury in the Auckland District Court in May 2015 Mr Kingi was convicted on the following charges:

Charge	Description	Date of offending[1]	Particulars/description
1	Supplying methamphetamine	15.2.13	Supply of 1 to 2 grams of methamphetamine to Ka Ho Kao
2	Possession of methamphetamine for supply	25.2.13	1 oz of methamphetamine from Ka Ho Kao
3	Possession of methamphetamine for supply	28.3.13	1 oz of methamphetamine from Ka Ho Kao
4	Possession of methamphetamine for supply	5.4.13	2 oz of methamphetamine from Ka Ho Kao
5	Possession of methamphetamine for supply	12.4.13	3 oz of methamphetamine from Ka Ho Kao
6	Possession of methamphetamine for supply	20.4.13	A quantity of methamphetamine from Ka Ho Kao
7	Possession of methamphetamine for supply	3.5.13	3 oz of methamphetamine from Ka Ho Kao
8	Conspiracy to possess 2 oz of methamphetamine for supply	15.5.13	Conspiring to possess 2 oz of methamphetamine from Ka Ho Kao
9	Supply methamphetamine	Between 15.2.13 and 15.5.13	Mr Kingi’s on supply of approximately 10 oz supplied to him by Ka Ho Kao

[1]The indictment for each of counts 1–8 states the date of offending as “on…

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 Kingi v R

Details

AGLC: Kingi v R [2016] NZCA 160
Case: [2016] NZCA 160
Decision Date: 2 May 2016 at 11 am

CaseChat Overview and Summary

Elijah Koro Kingi appeals against seven of his nine convictions for dealing in methamphetamine. The Crown did not oppose the extension of time for the appeal, which was filed 45 days out of time. The appeal against sentence was only advanced to the extent that a downward adjustment in sentence will be needed if the conviction appeal succeeds. The three grounds of appeal against conviction are: (a) prejudicial use of Mr Kingi’s name, (b) insufficient evidence that Mr Kingi used the cellphone, and (c) unavailability of closing addresses and summing-up. The court found that the repetitive use of Mr Kingi’s name in the attribution of cellphone 2766 was not highly prejudicial and did not impact the probative value of the evidence. There was sufficient evidence for the jury to be satisfied beyond reasonable doubt that Mr Kingi was the user of cellphone 2766. The unavailability of the closing addresses and summing-up does not lead to the conclusion that the conviction is unsafe or unsatisfactory. Therefore, the appeal against conviction and the appeal against sentence are dismissed.

Orders