R v Hetaraka

[2015] NZHC 2209

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL THE FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-8441 [2015] NZHC 2209

THE QUEEN

v

HARIBOY HETARAKA

Hearing:	11 September 2015
Counsel:	S C Carter for Crown R B Squire QC
Judgment:	14 September 2015

REASONS JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

3 pm on the 14th day of September 2015

Solicitors:           Crown Solicitor, Wellington.

Bruce Squire QC, Wellington.

R v HETARAKA [2015] NZHC 2209 [14 September 2015]

[1]      On Friday 11 September 2015 I declined the Crown’s application under s 101 of the Criminal Procedure Act 2011 for an order that the photographs contained in “Photograph Booklet 3” were admissible in Mr Hetaraka’s upcoming trial for the manslaughter of Clark McCulloch. These are my reasons for that ruling.

[2]      The relevant factual background is set out in Collins J’s judgment dated

17 August 2015 and I do not repeat it here.1

[3]      The  photographs  sought  by  the  Crown  to   have  admitted   related   to Mr McCulloch’s hospitalisation after the incident giving rise to the manslaughter charge.   They included, in particular, one photograph of Mr McCulloch lying, unconscious, in his hospital bed.  The picture shows him intubated and with a line of some description in his arm.  Another is simply a blown up image of his face taken from the same photograph.  As Ms Carter said, however, they are not “gruesome” photographs; no injuries are discernible.

[4]      At the hearing on Friday Ms Carter advised that the Crown did not pursue the application in relation to the other photographs in the booklet so I do not need to consider those further.

[5]      Ms Carter advanced the Crown’s application on two bases.  First, they would enable the jury to see something of Mr McCulloch’s build (which was slight).  She said that this was relevant to Mr Hetaraka’s proposed defence of self-defence. Secondly, she said that they would help the jury see that Mr McCulloch was a real person, rather than some faceless “victim”.

[6]      But  I  agree  with  Mr  Squire  QC  that  the  probative  value  of  the  two photographs is low, at best.   As far as the issue of Mr McCulloch’s  “build” is concerned, the photographs reveal very little.  It is true that it can be seen that he was not overweight or heavily muscled but his height and weight could not possibly be

estimated from them.

1      R v Hetaraka [2015] NZHC 1933 at [4] – [23].

[7]      Moreover, as Mr Squire said, the photographs say little, if anything, about how  Mr  McCulloch  would  have  appeared  to  Mr  Hetaraka  on  the  morning  in question, about which there will be eye witness evidence.  There will also be other evidence about his actual height and weight (at least at the time of his death).

[8]      I  am  also  unable  to  see  how  the  second  ground  raised  in  support  of admissibility is  relevant  in  any  meaningful  way.    It  is  an  undisputed  fact  that Mr McCulloch was a real person; to permit the jury to see a photograph of him on that basis alone seems little more than a play for sympathy.

[9]      Against the photographs’ low probative value is the real possibility of unfair prejudice.  Mr McCulloch necessarily looks weak and vulnerable.  Again, the point is that he would not have looked that way on the day Mr Hetaraka punched him.

[10]     In short, the potential unfair prejudice that would flow from the admission of the photographs outweighs their marginal probative value.

“Rebecca Ellis J”