Kiro v The Queen
[2013] NZCA 498
•17 October 2013 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA121/2013 [2013] NZCA 498 |
| BETWEEN | REI-MARK KIRO |
| AND | THE QUEEN |
| Hearing: | 19 September 2013 |
Court: | Miller, Cooper and Lang JJ |
Counsel: | C B Wilkinson-Smith for Appellant |
Judgment: | 17 October 2013 at 11.00 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT
(Given by Lang J)
Mr Kiro stood trial with five other persons in the District Court at Manukau on two charges of wounding with intent to cause grievous bodily harm. The jury found Mr Kiro guilty on the first charge, but acquitted him on the second. The jury acquitted Mr Kiro’s co-accused on both charges.
On 20 February 2013, Judge Blackie sentenced Mr Kiro to four years six months imprisonment.[1]
[1]R v Kiro DC Manukau CRI-2011-092-6884, 20 February 2013.
Mr Kiro filed a notice of appeal against both conviction and sentence. At the hearing, his counsel abandoned the appeal against sentence and it is accordingly dismissed. It is therefore only necessary for us to deal with the appeal against conviction.
The sole ground of appeal arises out of the Crown’s decision to produce a photograph montage that included a photograph of Mr Kiro as an exhibit at his trial. The jury had the montage in the jury room during their deliberations along with the other physical exhibits. Mr Kiro contends that this is likely to have unfairly prejudiced the jury against him, particularly given the fact that the Crown did not produce a similar montage relating to any of his co-accused. In addition, the trial Judge did not direct the jury that they were not to draw any adverse inference against Mr Kiro from the montage.
Background
On the evening of 2 April 2011, a party was held in the garage of a residential address in Otahuhu to celebrate the 18th birthday of Ms Billie Jean Cassidy. The address was occupied by Ms Cassidy’s uncle, Mr George Hemara. The party was attended by Ms Cassidy’s family and close friends, including Mr Hemara and his brother-in-law Mr Jack Te Kare.
At around 11 pm, a group of approximately 20 people arrived at the address. Some had been invited to the party, and had taken the liberty of inviting their associates. The group included Mr Kiro and his three co-accused in respect of the first charge which involved Mr Hemara.
A considerable amount of alcohol was consumed by those attending the party. At about 1 am, several people began playing in an aggressive manner with a pair of garden shears they had found in the garage. Mr Hemara intervened to ask this group, one of whom the Crown alleged was Mr Kiro, to stop their game and put the shears away. A few minutes later, members of the group attacked Mr Hemara and knocked him to the ground. He was then punched and kicked whilst lying on the ground. This rendered Mr Hemara unconscious or semi-conscious. Mr Hemara was taken by ambulance to Middlemore Hospital, where he was found to have a fracture to his skull. This required surgery, and has had long lasting effects for Mr Hemara.
The jury found Mr Kiro guilty of wounding Mr Hemara with intent to cause him grievous bodily harm.
The Crown alleged that members of the same group also attacked and injured Mr Te Kare. Given that Mr Kiro and his co-accused were all acquitted on this charge, it is unnecessary to say anything further about that incident.
The Crown case
The Crown case against Mr Kiro and his co-accused depended on evidence given by other persons who attended the party and were present when the attack on Mr Hemara and Mr Te Kare took place. The Crown used photographs taken during the party as a means of establishing the identity of those who took part in the attack. The prosecutor asked the witnesses to identify those who had attacked Mr Hemara and Mr Te Kare with reference to the people depicted in the photographs.
Mr Kiro was depicted in only one of the photographs that were taken during the party. As a result, the Crown asked the witnesses to identify Mr Kiro from that photograph, and also from a montage of photographs prepared by the police using photographs held in police records.
At least two of the witnesses, including Ms Cassidy, identified Mr Kiro as being involved in the attacks. Ms Cassidy had met and knew Mr Kiro before the evening of the incident. The Crown then produced the photo montage as a documentary exhibit, and it remained with the jury during their deliberations.
Mr Kiro acknowledged he was present at the party because he had been invited. His defence was that he did not participate in the acts giving rise to the charges. His counsel focussed on the confused nature of the evidence given by the eyewitnesses, and the absence of any forensic evidence implicating Mr Kiro in the attacks on Mr Hemara and Mr Te Kare. Counsel emphasised that although Mr Kiro was alleged to have kicked Mr Hemara, no blood had been detected on Mr Kiro’s footwear. He submitted in his closing address that many of the witnesses were drunk, and that this contributed to their erroneous identification of Mr Kiro as one of the persons who attacked the two victims.
Ground of appeal
Counsel for Mr Kiro points out that Mr Kiro was known to some of the witnesses, and acknowledged he was present at the party when the attacks on Mr Hemara and Me Te Kare occurred. He therefore contends that the prosecutor did not need to put the montage to those witnesses when asking them to describe the part Mr Kiro had allegedly played in the incidents giving rise to the charges.
Counsel also submits that the montage should not have been produced as an exhibit. Once it was produced, he contends that the Judge ought to have directed the jury that they should not draw any adverse inference from the fact that Mr Kiro was depicted in the montage. This was necessary because the jury knew that the police were able to compile the montage because they already held a photograph of Mr Kiro in their records. The jury would therefore have appreciated that he had dealt with the police on at least one previous occasion.
Counsel for Mr Kiro also submits that the presence of the montage in the jury room during the jury’s deliberations is likely to have unfairly prejudiced the jury against him. That is particularly the case given the fact that the Crown did not produce a photo montage in respect of any of his co-accused. Counsel contends that the prejudicial effect of the montage is demonstrated by the fact that Mr Kiro was the only person the jury found guilty, even though the evidence against all of the accused was broadly similar.
The Crown response
Counsel for the Crown points out that it was necessary for the prosecutor to refer the witnesses to the montage because the Crown needed to prove that Mr Kiro was the person who participated in the attacks on the two victims. He accepts, however, that it was not appropriate for the montage to have been produced as an exhibit.[2]
[2]R v Khan CA321/05, 7 March 2006 at [26].
Counsel for the Crown does not accept that the production of the montage potentially led to a miscarriage of justice. He submits that the Crown’s case against Mr Kiro was a circumstantial one, and did not depend upon identification evidence. He also points out that neither counsel referred to the montage in his closing address, and neither counsel asked the Judge to give the jury any direction in relation to it. The Crown submits that this demonstrates that the montage was not a matter of any moment at the trial, and that there was therefore no need for any direction to be given.
Decision
We accept that it was necessary for the prosecutor to refer witnesses to the montage, but we disagree that the Crown’s case can properly be described as circumstantial. The issue for the jury in respect of Mr Kiro was whether the Crown could establish that the eyewitnesses had correctly identified Mr Kiro participating in the acts that gave rise to the charges. The evidence given by those witnesses was direct evidence, and the issue was therefore very much one of identification. The Crown used the montage to establish that the witnesses had correctly identified Mr Kiro as one of the persons who attacked Mr Hemara and Mr Te Kare.
Although the Crown should not have produced the montage as an exhibit, it formed a very small part of the total pool of evidence. The transcript of evidence given at the trial runs to 1087 pages, and the Crown produced a total of 35 exhibits. Neither counsel referred to the montage in his closing address to the jury, and neither counsel asked the Judge to provide the jury with any direction in relation to it. This demonstrates that neither counsel viewed the montage as having any significance in the overall context of the trial. In those circumstances the Judge was not required to provide the jury with any direction in relation to it.
We add that the Judge gave the jury standard directions that they were not to speculate when considering inferences to be drawn from the evidence, and that they were also to put aside any feelings of sympathy and prejudice. Counsel for Mr Kiro is effectively asking this Court to accept that the jury ignored both these directions by drawing an adverse inference against Mr Kiro from the fact that the police were able to compile a photographic montage that included his photograph. We decline to accept that proposition.
It is also speculative to assert that the jury may have been influenced in reaching their verdict by the presence of the montage in the jury room. The fact that the jury acquitted Mr Kiro on the second charge suggests they based their verdicts on the evidence relevant to each charge, and not upon extraneous factors such as the existence of the montage. As noted above, at least two witnesses told the jury they saw Mr Kiro assaulting Mr Hemara at various stages of the incident. Ms Cassidy told the jury she saw Mr Kiro land the first blow on Mr Hemara. It was open to the jury to accept the evidence of these witnesses, particularly given the fact that some of them, including Ms Cassidy, knew Mr Kiro prior to the night of the party.
Result
We are therefore satisfied that no miscarriage of justice occurred. The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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