Philip Murray Kinraid v The Queen - [2018] NZSC 3

NOTE: ORDER MADE BY THE COURT OF APPEAL PROHIBITING PUBLICATION OF [4], [5], [6], [13], [14], [15] AND [16] OF THE DECISION IN [2017] NZHC 231 REMAINS IN FORCE WITH THE AMENDMENT NOTED IN [6] BELOW.

NOTE: ORDER MADE IN THE HIGH COURT PROHIBITING PUBLICATION OF THE DECISION IN [2016] NZHC 545 AND THE EVIDENCE CONTAINED IN IT REMAINS IN FORCE WITH THE AMENDMENT NOTED IN [6] BELOW.

NOTE: ORDER MADE IN THE HIGH COURT ON 23 FEBRUARY 2017 PROHIBITING PUBLICATION OF THE NAMES, ADDRESSES AND OCCUPATIONS OF FAMILY MEMBERS REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 116/2017
[2018] NZSC 3

BETWEEN	PHILIP MURRAY KINRAID Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Glazebrook and Ellen France JJ
Counsel:	P M Keegan for Applicant A Markham for Respondent
Judgment:	21 December 2017

Reissued: 2 February 2018

Effective date

of judgment: 21 December 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant seeks leave to appeal from a decision of the Court of Appeal.[1] The Court dismissed the applicant’s appeal from a decision of the High Court declining to grant suppression of the fact that, at one point, the applicant was charged with the murder of his two year old daughter.[2] He subsequently pleaded guilty to the manslaughter of his daughter.

Background

[1]Kinraid v R [2017] NZCA 443 (French, Asher and Clifford JJ) [Kinraid (CA)].

[2]R v Kinraid [2017] NZHC 231 (Ellis J) [Kinraid (suppression)].

The applicant was originally charged with manslaughter following the death of his daughter. The charge was elevated to murder after police obtained medical records from medical professionals pursuant to a production order. There was a challenge to the admissibility of that medical evidence. The medical records were excluded on the basis medical privilege applied.[3] The charge was reduced to manslaughter, a guilty plea entered and the applicant was sentenced to a term of imprisonment of four years and three months.[4] The High Court also declined to suppress the fact the applicant was earlier charged with murder.[5] The applicant appealed to the Court of Appeal.
[3]R v Kinraid [2016] NZHC 545 (Davison J).
[4]R v Kinraid [2017] NZHC 233 (Ellis J).
[5]Kinraid (suppression), above n 2.
In dismissing the appeal, the Court of Appeal was not satisfied publication would be likely to cause “extreme hardship” in terms of s 200(2)(a) of the Criminal Procedure Act 2011.[6]

The proposed appeal

[6]Kinraid (CA), above n 1, at [50]–[58].

The applicant seeks to challenge the way in which the Court of Appeal dealt with various contextual matters. If those matters had been viewed properly, the applicant says, the Court of Appeal would have concluded that the threshold for suppression was met. In particular it is said that insufficient weight has been given to the nature of the charge (murder), the fact the victim was the applicant’s daughter and to the effect the resultant publicity would have on the applicant 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 Philip Murray Kinraid v The Queen

Details

AGLC: Philip Murray Kinraid v The Queen [2018] NZSC 3
Case: [2018] NZSC 3
Decision Date: 21 December 2017

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Philip Murray Kinraid applied for leave to appeal against the Court of Appeal's dismissal of his appeal against a decision of the High Court. The High Court had declined to suppress the fact that Kinraid was charged with the murder of his two-year-old daughter before he pleaded guilty to manslaughter. The Court of Appeal upheld the High Court's decision, ruling that publication of the fact that Kinraid was initially charged with murder would not cause "extreme hardship" under s 200(2)(a) of the Criminal Procedure Act 2011. Kinraid's application to the Supreme Court sought to challenge the way in which the Court of Appeal dealt with various contextual matters, particularly the nature of the murder charge and its impact on him and his family.

The court considered whether the criteria for leave to appeal were met. It noted that the proposed appeal was fact-specific and that the Court of Appeal had carefully analysed the facts. No challenge was made to the principles applied by the Court of Appeal. The court found that no question of general or public importance was raised and there was no appearance of a miscarriage of justice. The court concluded that the criteria for leave to appeal were not met.

The Supreme Court dismissed the application for leave to appeal. The orders made by the Court of Appeal and the High Court, prohibiting publication of certain information, remained in force. However, the orders were varied to clarify that publication of the fact that the pre-trial challenge involved medical records and privilege was not in breach of those earlier orders.

Orders