Kingi v R

Case •

[2016] NZCA 160

•

2 May 2016 at 11 am

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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

  1. 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.

  2. 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.

  3. 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

  1. 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 or about”.

  1. On 23 June 2015 Judge Gibson sentenced Mr Kingi to 10½ years’ imprisonment.[2]

    [2]New Zealand Police v Kingi [2015] NZDC 11725.

  2. The Crown case was that Mr Kingi, between mid-February and mid-May 2013, received supplies of methamphetamine from an Auckland drug dealer, Mr Kao.  Mr Kao supplied Mr Kingi with approximately 280 grams (10 ounces).  Mr Kingi, who operated in Tauranga, then on-sold that in smaller quantities to his own customers.

  3. Charges 1–7 related to specific transactions in which Mr Kao supplied ounce lots of methamphetamine to Mr Kingi.  Charge 8 — the conspiracy charge — related to a further intended supply that was interrupted because the police arrested Mr Kao in Waihi with 130 grams (approximately five ounces) of methamphetamine, two ounces of which were destined for supply to Mr Kingi in Tauranga.  Count 9 charged Mr Kingi with the on-supply to his customers of the drugs supplied to him by Mr Kao.

  4. By the time of Mr Kingi’s trial, Mr Kao had pleaded guilty to charges that mirrored  charges 1–8 faced by Mr Kingi.  The issue in Mr Kingi’s trial was whether the Crown could prove Mr Kingi was the person who used two successive cellphones[3] to arrange the drug deals with Mr Kao.

    [3]Cellphone 4106 referred to in [10] below, and then cellphone 2766 referred to in [2](a) above.

  5. Mr Kingi’s defence was that he was not involved in the offending and that the Crown had wrongly attributed to him the communications between Mr Kao and the user of the two cellphones.

  6. Mr Tomlinson advised the Court that Mr Kingi abandoned his appeal in relation to counts 1 and 2.  Those counts involved two drug deals with Mr Kao and the user of cellphone 021 184 4106 (cellphone 4106) on 15 and 25 February 2013.  Mr Kingi was in prison for a month from 27 February to 27 March 2013, having breached the terms of a non-custodial sentence.  The Crown case was that Mr Kingi, following his release from prison, recommenced his drug dealing with Mr Kao, but using cellphone 2766.

Ground 1:  repetitive use of Mr Kingi’s name highly prejudicial 

  1. Police officers adduced in evidence a schedule of the text messages between Mr Kao and the user of cellphones 4106 and 2766, which the Crown said evidenced a course of drug dealing or specific drug deals.  This schedule is quite lengthy, but the extract set out in [21](d)] below illustrates Mr Kingi’s concern.

  2. In the course of Detective Reynold’s evidence-in-chief about this schedule, there was repeated attribution of cellphone 2766 to Mr Kingi, both by the prosecutor in his questions, and by the Detective in his answers.  For example, the Detective’s evidence about the text communications set out in the table in [21](d)] below was:

    Kingi to Kao, “Bro what’s going on, me here.”  Kingi to Kao, “What da hell bro, we here waiting bro.”  There was a phone call from Kingi to Kao that lasts three seconds.  There’s another text from Kingi to Kao, “Bro what’s going on my friend? Wake up or text back something bro.”  Another text from Kingi to Kao, “Okay bro we going now.”  Kao to Kingi, “No answer bro.”  Kao to Kingi, “216 Mill Road, Bombay.”  Kingi to Kao, “71 Puke Road, SH2 Paeroa, Casa Mexicana Hotel, this is where I am my friend.”

(And so on, similarly presented.)

  1. Similarly, the booklet containing the transcripts of intercepted phone calls between the user of cellphone 2766 and Mr Kao on Wednesday 15 May 2013 and Thursday 16 May 2013 attributed cellphone 2766 to Mr Kingi.  Take, as an example, the phone call made at 12:57:50 on the Thursday.  The booklet presented this in the following form:

    DATE            Thursday, MAY 16, 2013

    START TIME   12:57:50

    …

    KINGI           Yeah well what time?

    KAO              Um, may be four o’clock or five o’clock, .… alright.

    KINGIUm, five o’clock.  Will you, will you be able to come here though bro?

    …

(And so on, in the same vein.)

  1. Mr Tomlinson submitted this repetitive use of Mr Kingi’s name as the user of cellphone 2766 risked the jury being subconsciously influenced into believing Mr Kingi must have been the user of cellphone 2766. 

  2. We do not accept that submission.  Although we do not have transcripts of counsel’s closing addresses to the jury or of the summing-up, the notes by counsel and the Judge we do have satisfy us that the jury was made well aware that the issue at trial was the attribution of cellphone 2766.  Could the jury be sure on the evidence they had heard that Mr Kingi was the user of cellphone 2766?

  3. It is significant, though not of course determinative, that Mr Kingi’s defence counsel at trial (Mr Tomlinson was not trial counsel) was experienced yet did not advance the present complaint before or at trial.  We think that reflected counsel’s acceptance that avoiding the use of Mr Kingi’s name would have been time consuming, cumbersome and artificial, possibly to the point that it became counterproductive.  The following extract from the schedule put in evidence by the defence illustrates the impracticalities when compared with the extracts set out in [21](d)] and [22](f)] below:

3/21/13 8:37:02 3/21/13 8:37:02 3/21/13 8:37:03 SUCCESSFUL 64223851920 642040212766 bro when u up tell me
3/21/13 8:49:55 3/21/13 8:49:55 3/21/13 8:49:56 SUCCESSFUL 64223851920 642040212766 little bit early all good?
3/21/13 8:51:51 3/21/13 8:51:51 3/21/13 8:51:51 SUCCESSFUL 64223851920 642040212766 yeap

(This is a small example from a much larger schedule, which does not contain any column headings.)

  1. This first ground of appeal against conviction is not made out.

Ground 2:  Insufficient evidence that Mr Kingi used cellphone 2766

  1. Now that Mr Kingi has abandoned his appeal on counts 1 and 2, Mr Tomlinson accepted Mr Kingi’s convictions on those counts and the evidence supporting them are propensity evidence in considering Mr Kingi’s appeal on counts 3–9.  This means:

    (a)Mr Kingi accepts he supplied methamphetamine to Mr Kao on 15 February 2013 and was supplied with methamphetamine by Mr Kao on 25 February 2013.

    (b)Since the evidentiary basis for those convictions was the text messages between Mr Kao and the user of cellphone 4106, Mr Kingi accepts he was the person using that cellphone to arrange those drug deals with Mr Kao.

  2. As Mr Tomlinson pointed out, counts 3–8 involved the use of cellphone 2766 over the period 28 March 2013 to 15 May 2013.  Mr Kingi’s acceptance that he was using cellphone 4106 to deal in drugs with Mr Kao in February 2013 thus does not establish he used cellphone 2766 for the same purpose over March to May 2013.

  3. In assessing whether the jury’s verdicts were unreasonable having regard to the evidence, we look first at the evidence relating directly and only to charge 7 and then that similarly related to charge 8.  Next we will look at the evidence relating generally to charges 3–8.

Count 7:  The Casa Mexicana drug deal on 3 May 2013

  1. The following summarises the evidence relating to this charge:

    (a)A person giving the name Elijah Kingi booked into room 6 at the Casa Mexicana Motel in Paeroa on Friday 3 May 2013. 

    (b)Cellphone 2766 was not used to make that booking.

    (c)The Casa Mexicana Motel guest information form gives the details:

    Name:  Elijah Kingi
    Address:  131 Osprey Drive
      Welcome Bay
      Tauranga
    Contact phone number:          02040213899
    Car registration number:         EQM497
    Number of persons:                2
    Number of nights accommodation required:     1
    …
    Guest signature:  “E Kingi”

    (d)The following text data:

Date time From From name To To name Content
3/05/2013 09:39 2040212766 KINGI 2040226256 KAO Bro wats goin on we hea.
3/05/2013 09:44 2040212766 KINGI 2040226256 KAO Wat da hel bro.. We hea waitng bro.
3/05/2013 09:50 2040212766 KINGI 223851920 KAO [Phone Call] 00:03 Duration
3/05/2013 09:51 2040212766 KINGI 2040226256 KAO Bro wats goin on my friend? Wake up or tex bk sumtng bro.
3/05/2013 10:45 2040212766 KINGI 2040226256 KAO Ok bro we going nw.
3/05/2013 11:35 2040226256 KAO 2040212766 KINGI No answer bro
3/05/2013 12:28 2040226256 KAO 2040212766 KINGI 216 mill rd bombay
3/05/2013 12:29 2040212766 KINGI 2040226256 KAO 71 puke rd sh2 paeroa. Casa Mexicana hotel. Dis iz wea I am my friend.
3/05/2013 12:30 2040212766 KINGI 2040226256 KAO R u gna kum hea my friend.
3/05/2013 12:37 2040212766 KINGI 2040226256 KAO R u kumng t me ay my friend.
3/05/2013 12:39 2040226256 KAO 2040212766 KINGI On the way see my fd first
3/05/2013 12:39 2040212766 KINGI 2040226256 KAO Ok
3/05/2013 211318357 KAO 2040212766 KINGI [Phone Call] 01:04 Duration
3/05/2013 13:39 2040212766 KINGI 2040226256 KAO Hw far r u my friend.
3/05/2013 13:46 211318357 KAO 2040212766 KINGI Bro u already txt me where r u?
3/05/2013 13:50 211318357 KAO 2040212766 KINGI [Phone Call] 03:17 Duration
3/05/2013 14:19 2040212766 KINGI 211318357 KAO [Phone Call] 00:21 Duration
3/05/2013 14:48 211318357 KAO 2040212766 KINGI [Phone Call] 00:14 Duration

Count 8:  The intercepted drug deal at the Bay Palm Motel on 16 May 2013

  1. The evidence relating to this charge can be summarised thus:

    (a)At about 4.17 pm on 16 May 2013 a woman booked into the Bay Palm Motel at 84 Girven Rd, Mt Maunganui.  She gave her name as Hollie Stokes, presented an Australian driver’s licence as identification, and gave her address as 54 Resolution Rd, Welcome Bay and her vehicle registration as EQM497.  She said there would be two people staying in the room.  CCTV footage shows this woman was driving a blue BMW.

    (b)The woman left in the BMW at 4.22 pm.

    (c)At about 7.48 pm a Māori man arrived in a white station wagon (a Primera) with the registration number CQY660 and parked outside the room Ms Stokes had booked.

    (d)At 9.53 pm a blue BMW with the registration number EQM497 arrived.  A man then got into the white Primera and was in the vehicle for some time before the Primera drove out, returning at 11.36 pm.  Two people got out of the vehicle; the passenger appeared to be a woman.

    (e)The Primera left the Motel the following morning just after 10 am.

    (f)The following text and telephone communications between Mr Kao and cellphone 2766:

Date/time From To Type and content of communication
15/5/13 12.24 2766 Kao Telephone call.  Caller asks “Will you be able to get two …?”  Kao says yes maybe tonight 6–7 o’clock.  Call ends on basis Kao will text 2766 about 4 o’clock (Kao confirms 7 o’clock).
15/5/13 17.33 2766 Kao Text.  “Wats da go my friend.”
15/5/13 18.28 2766 Kao Telephone call.  Caller asks “What’s the go?” Kao replies tomorrow around noon, 1 o’clock.  Call ends on basis Kao will text 2766 around 12 o’clock.
16/5/13 12.21–12.32 Texts.  Between Kao and 2766.  2766 asks “r we ready or not bro?” and “Wat time cn we meet?”
16/5/13 12.57 2766 Kao Telephone call.  Kao tells 2766 he needs about two hours. Call ends on basis Kao will text 2766 then.
16/5/13 15.28 Kao 2766 Telephone call.  Kao says he is in North Shore but on the way now.  2766 asks “do you know whereabouts I am?”  2766 tells Kao he will text him an address.
16/5/13 15.48 Kao 2766 Telephone call.  2766 gives Kao the address 84 Girven Road in Mt Maunganui.  Spells that address out number by number and letter by letter.  Kao confirms on the road (having apparently searched on his GPS), says about two hours.
16/5/13 16.27 2766 Kao Text.  “Tex me when u half an hour away my bro. Hw far r u nw?”
16/5/13 16.28 Kao 2766 Text.  “Ok just on the way”
16/5/13 16.51 Kao 2766 Telephone call.  Kao asks 2766 to buy glass pipes for him “the glasses one, that ah used to smoke”.  Kao tells 2766 he has “hit the car” but is leaving Auckland.
16/5/13 18.16 2766 Kao Telephone call.  2766 asks “how far are you?”  Kao says GPS says one hour ten minutes, then corrects that to “Three hour man”.
16/5/13 19.41 2766 Kao Text.  “Bro wea r u”.
16/5/13 19.51 2766 Kao Text.  “Bro wea r u I am waitng”.
16/5/13 20.30 2766 Kao Text.  “Bro we r goin nw.. Gve me a tex wen u get dis.”

(g)Mr Kao was stopped by the police in Seddon St in Waihi at about 6.43 pm on 16 May 2013.  He was found to be in possession of 130 g of methamphetamine.  He was escorted to the Waihi Police Station and there arrested and charged.

Evidence relating generally to counts 3–8

  1. The police executed a search warrant at Mr Kingi’s home, 36A Langstone St, Welcome Bay, Tauranga at 7.45 am on 5 June 2013.  Two aspects of what the police found there are relevant:

    (a)There were two vehicles at the address:

    ·A gold coloured Mercedes Benz with the registration number ENH368.

    ·A white Primera wagon with the registration number CQY660.

    Mr Kingi told the police the Primera was his car.

    (b)The police located five cellphones and two empty SIM card packs.  Neither cellphone 4106 nor 2766 was found. 

Mr Kingi was arrested and later that morning charged with the matters now under appeal.

  1. In texts sent from cellphone 4106 on 12 and 15 February 2013, Mr Kingi told Mr Kao he was driving or being driven in a blue BMW.  For example, on 12 February:

Date time From From name To To name Content
12/02/2013 17:57 220974732 KAO 211844106 KINGI where r u been bro
12/02/2013 17:59 211844106 KINGI 220974732 KAO Carpark p4
12/02/2013 18:00 220974732 KAO 211844106 KINGI where the carpark
12/02/2013 18:01 211844106 KINGI 220974732 KAO Im nt sure 1st tym bn hea wana meet smwea else
12/02/2013 18:03 211844106 KINGI 220974732 KAO Blue bmw iv got a driver if i need him go 4 walk inside

  1. In the early hours of the morning of 19 February 2013 the police stopped a Mercedes with the registration number ENH368.  The driver was recorded at the time as Elijah Kingi, home address 36A Langstone St, Tauranga.  The driver was issued with an infringement notice because the vehicle was unlicensed.  The driver’s telephone number was recorded as 021 184 4106.

  2. As noted in [22](a)] above, the Bay Palm Motel was in Mt Maunganui in Tauranga.  On 20 April 2013 the user of cellphone 2766 arranged with Mr Kao to meet him at the Bridgeway Hotel, which is also in Tauranga:

Date Time From From name To To name Content
20/04/2013 04:05 2040212766 KINGI 221968213 KAO [Phone Call] 01:31 Duration
20/04/2013 04:08 2040212766 KINGI 221968213 KAO 91 turret rd tauranga. Bridgeway hotel its a big blue sign dat sez bridgeway hotel on it my friend.
20/04/2013 04:51 221968213 KAO 2040212766 KINGI Which room

The supply of methamphetamine at the Bridgeway Hotel on that day was the basis for count 6.

  1. The communications relating to the drug deals have a consistency of terminology, and a consistency also in terms of the quantity of methamphetamine supplied by Mr Kao.  The exception to Mr Kao being the supplier to Mr Kingi and to the user of cellphone 2766 is count 1, which involved Mr Kingi supplying between one and two grams of methamphetamine to Mr Kao.  The surrounding text messaging indicate this was a goodwill gesture, Mr Kao telling Mr Kingi “I promise I will give u back”.  Most of the text jargon is generic.  The exception, perhaps, is the use of the term “clock” by Mr Kao and by the user of cellphone 2766 on 28 March 2013, by the user of cellphone 2766 on 12 April 2013, and again by both parties on 24 April 2013.  For example, the user of cellphone 2766 to Mr Kao on 12 April:

Date time From From name To To name Content
12/04/2013 10:47 2040212766 KINGI 221968213 KAO If we dnt meet tday mi friend um gna go sum wea else an get 3oclk. I need it today bro.

  1. When all these strands of evidence are combined, we are satisfied the jury could reasonably have found Mr Kingi was the user of cellphone 2766 over the relevant period, and therefore have found Mr Kingi guilty on counts 3 to 8.  Or, to put the issue in terms of established principles, we consider Mr Kingi has fallen short of the high threshold for interference with guilty verdicts on the basis of unreasonableness.[4]

    [4]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17]; R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [86]–[88]; Webb v R [2013] NZCA 666 at [21]; Tamati v R [2010] NZCA 49 at [48]; and R v Kuka [2009] NZCA 572 at [74]–[75].

  2. This second ground of appeal fails.

Ground 3:  Unavailability of closing addresses and summing-up

  1. The unavailability of the usual transcript of the trial is regrettable.  But the principles that apply in such a situation are well established:[5]

    (a)The mere fact there is no record (or no adequate record) of the trial is not in itself a ground for finding a conviction unsafe or unsatisfactory or for holding that a “miscarriage of justice” has occurred, to use the language of s 232 of the Criminal Procedure Act 2011.

    (b)Before an appellant may claim that result he must be able to show an irregularity in the trial or a misdirection in the summing-up.

    (c)However, where there is reason to suspect something has gone wrong in the trial, the absence or insufficiency of a proper transcript may be material.

    [5]R v Symes CA214/95, 8 November 1995 at 3–4; R v W [2005] 2 NZLR 307 (CA) at [14]; R v Hooker [1998] 3 NZLR 562 at 565; and R v Elliott (1909) 2 Cr App R 171 (Crim App) at 172.

  2. In his written submissions Mr Tomlinson identified four issues with the lack of a transcript here:

    (a)Whether either counsel made improper or incorrect submissions to the jury.

    (b)How the judge dealt with the issue of attributions and the naming of the appellant in the transcripts.

    (c)How the judge dealt with the way the jury could or couldn't use the evidence in one count with another count.

    (d)How the judge dealt with any issues of identification.

  3. Mr Tomlinson did not press (a).  As to (c), Mr Tomlinson relied on R v W as a case where this Court had allowed an appeal against convictions, essentially on his point (c).[6]  As Ms Grau pointed out, R v W is a quite different case.  The Crown had included in the indictment counts involving two quite separate complainants and incidents.  The Crown did not run the trial on a propensity basis.  As the Court recorded in its judgment, “these two incidents lacked the sort of pattern that would normally have supported their being advanced to the jury on a “similar fact” basis”.[7]  The appeal succeeded because the Judge needed to direct the jury, not only that each count must be considered separately, but further that propensity reasoning – “rolling up” the one incident with the other – was not available.  The Court concluded:[8]

    On the face of what record we have, we cannot be satisfied that a direction along these lines was given.  And the Judge does not indicate a direction to this effect was given.  Without such a direction the verdicts are unsafe.  On that ground alone the verdicts must be set aside.

    [6]R v W, above n 5.

    [7]At [15].

    [8]At [16].

  4. However, Mr Tomlinson’s focus was rightly on his points (b) and (c), which he accepted were essentially the same:  whether the Judge properly directed the jury on the issue of attribution of the two cellphones to Mr Kingi.  The material available to us leaves us with no concerns about this.  We have the notes of trial counsel.  The notes of defence counsel, Mr Nabney, record:

    Crown closing address

    Has Crown proved Elijah Kingi using 2 x cellphones to converse with Elijah Kingi.

The latter two words are an obvious error for Mr Kao.  He also recorded:

Judge Gibson sums up.

Hands out question trail.

Can you attribute texts and transcript to Mr Kingi.

  1. Pursuant to a request by this Court under r 17 of the Court of Appeal (Criminal) Rules 2001, Judge Gibson provided a report.  He explained his practice in summing up.  Given this was not a complicated trial, the Judge explained he would have summed up the Crown and defence cases from the handwritten notes of the two closings he had made in his bench book.  He attached those notes.  His note of the start of the Crown closing is:

    9.46am   Northwood closes for the Crown

    Crown has established that Kingi using 2 cellular phones to contact Kao over drug deals.

And a little later:

Defence not saying didn’t happen – saying wasn’t proved that Kingi

-     2 cellphones – 4106

-     txts messaging for counts 1 + 2

-     txts 3 to 8             2766

  1. The Judge’s notes of the defence closing include:

    12.20pm Nabney closes for the Accused

    -         important aspect is attribution.

    Counts 1 + 2  021 phone

    …

    -     being asked to infer that its Kingi.  …

    …

    Counts 3–8 –says it is someone else other than Kingi using the phone and making arrangements with Kao.

  2. All of that amply demonstrates that the focus in the closing addresses, and thus in the Judge’s summing-up of the Crown and defence cases, was whether the Crown had proved it was Mr Kingi who used the two cellphones to communicate with Mr Kao.

  3. Accordingly, this third ground of appeal also fails.

Appeal against sentence

  1. As mentioned in [1] above, Mr Tomlinson sought to advance the sentence appeal only if, and to the extent, Mr King’s appeal against conviction succeeded.  As that appeal has failed, we need not consider the appeal against sentence.

Result

  1. The application for an extension of time to bring the appeal is granted.

  2. None of the three grounds of appeal against conviction has been made out.  The appeal against conviction and also that against sentence are accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent


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