R v K HC Napier Cri-2008-041-1027

[2009] NZHC 529

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2008-041-001027

THE QUEEN

v

K

Hearing:         1 April 2009

Counsel:         R J Collins and J E Rielly for the Crown

P A Williams QC and H Phillips for the accused

Judgment:      11 May 2009 at 3.00pm

I direct the Registrar to endorse this judgment with a delivery time of 3.00pm on the

11th day of May 2009.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The accused is charged with the murder of Chattrice Maihi-Carroll on or about 19 January 2008 at Napier.  There are two applications before the Court:

(a)       An application by the accused under s 347 of the Crimes Act 1961 for an order that the accused be discharged on the grounds that there is

insufficient probative evidence to support the charge;  and

R V K HC NAP CRI-2008-041-001027  11 May 2009

(b)      An application by the Crown under s 344A of the Act seeking a ruling

as to the admissibility of the video interview with the accused.

Facts

[2]      The deceased, a 43 year old woman, lived alone in a flat at 46 Cotterell Crescent, Napier.  On the morning of Monday 21 January 2008, her naked body was found on the living room floor.  Her night dress and underwear were lying nearby. She had suffered several stab wounds to her stomach and chest area.  A large kitchen knife was found next to the body.  No disturbance to the contents of the house was observed and there was no evidence of forced entry.   The evidence suggests that death occurred overnight on Saturday 19/20 January 2008.

[3]      The evidence from the scene and from neighbours concerning the events of the Saturday night did not indicate any clear leads.  Police enquires became focused on the accused.   He was the sole occupant of an adjoining flat.   Included in the inquiries conducted by police were a number of interceptions of conversations by the accused at a number of different locations and times.   No material evidence was obtained from the interceptions, and counsel for the Crown indicated that the Crown does not propose to lead any evidence from the interceptions.  The accused worked at the factory of Hatuma Foods.   Interviews were  conducted  with a number of employees  at  the  accused’s  work  place.    A  number  of  notebook  entries  were recorded of discussions with the accused by police officers.  A full video interview was conducted on 26 March 2008.  The case against the Crown is essentially based upon his video interview and the evidence of the employees.

[4]      Extensive forensic testing, including fingerprint and DNA sampling, work was  conducted  at  the  scene  and  on  the  deceased’s  body.    Two  items  of  DNA evidence need to be mentioned in the present context.   A small speck of blood identified  of  being  that  of  a  neighbour,  Mr  Edward  Nathan,  was  found  on  a pillowcase in the deceased’s flat.  A mixed DNA sample was found on a glass in the kitchen at the flat.  That was partly the deceased, and partly that from an unidentified male.  The accused has been excluded as being that male.

The sequence of the applications

[5]      It  is  necessary  to  address  the  sequence  which  these  s 347  and  s 344A applications are to be determined.  I consider that it is appropriate to deal first with the s 347 application, and to do so on the assumption that the video interview is admissible.  My reason for doing that is that if I were first to consider the s 344A application and rule the evidence inadmissible, and then proceed to consider the s 347 application on that basis, there would be no right of appeal against a discharge under s 347.  The Crown would effectively be deprived of the right of appeal which it would otherwise have, under s 379A, against the s 344A ruling.   That makes it preferable that  I address the s 347 application on the assumption that the video interview is admissible.  If, on that assumption, the s 347 application succeeds, the admissibility of the interview becomes moot.   If, on that assumption, the s 347 application is unsuccessful, it will be necessary for me to deal with the s 344A application.

Principles to be applied on the s 347 application

[6]      The principles to be applied on the s 347 application are not in dispute.  It is common ground that the test in R v Flyger [2001] 2 NZLR 721, as explained in Parris v Attorney General [2004] 1 NZLR 519, is to be applied. It is for the jury to determine whether evidence is, or is not, sufficient to establish guilt and it is not for the Judge to predict what the jury will find. For the purposes of the present application, the evidence must be given the construction most favourable to the Crown and, if on that construction, there is evidence from which a jury could reasonably draw an inference of guilt the case should be left to the jury and not withdrawn on evidentiary grounds. The power is to be used in a manner similar to an appellate Court considering an appeal on the basis that a verdict is unreasonable or cannot be supported by the evidence.

The evidence

[7]      An  essential  element  of  the  Crown  case  against  the  accused  is  that  the accused was aware, before he could have become aware of the deceased’s death by innocent means, that the deceased had been the victim of a homicide.  Without it, the evidence implicating the accused is insufficient to sustain a conviction.   A close analysis of the evidence in support of that proposition is necessary.  It involves first the evidence concerning the time at which the accused could first have learned of the accused’s death.

[8]      The deceased’s body was found by relatives on Monday morning, 21 January

2008.  Police and ambulance were alerted.  The ambulance arrived at approximately

11.28am and police from approximately 11.55am.   Detective Constable Burrell arrived at the scene at 12.20pm.   He spoke with one of the neighbours, Michael Nathan, after being briefed about the incident.  At 1.44pm, whilst he was on the road at the front of the scene he noticed the accused arrive in his vehicle.  He spoke to him.  He said that there had been a tragic accident next door and that either he or someone  else  would  be  in  contact  with  the  accused  later.    The  accused  in  his interview said that he had spoken to Michael Nathan who had said that their neighbour had been murdered.  Mr Nathan’s evidence at depositions was that he saw the ambulance arrive, and that he saw the accused driving towards the property.  He spoke to the accused and told him that the deceased’s body had been found in her flat and she was dead.  He did not know at that stage how she had died.  The accused responded by asking if they knew who had done it.

[9]      Counsel for the accused points to some aspects of the evidence which may give rise to some doubt at the exact time the accused was told, either by Mr Nathan or by Detective Constable Burrell when the accused had died.  Adopting the view most favourable to the Crown, I consider that a jury might conclude that Mr K   could not have learned of the death before 1.44pm on Monday, 21 January, or perhaps a few minutes earlier, certainly no earlier than 12.20pm.   That timing is critical to the next aspect which it is necessary to consider.  The Crown case is that the accused knew of the death before that time.   That contention is based on the

evidence of a number of fellow workers at the factory where Mr K   worked. Some gave evidence at depositions.   In other instances, the Crown relies on statements produced as a result of interviews.

[10]     The evidence of those witnesses falls broadly into two categories.  In the first category are witnesses who depose that the accused spoke to them and told them that his neighbour had been murdered.   In the second category are those who say that they became aware, from discussions with others, that the accused had said that his neighbour had been murdered.   There are potential issues of the admissibility, on hearsay grounds, of evidence in the second category.

[11]     The Crown does not seek to rely upon the accused’s statements as admissions by him.  The two purposes for which the statements are tendered are to establish:

(a)       That the accused had knowledge of the fact that his neighbour had been the victim of a homicide, and, crucially,

(b)      The time at which the accused had that knowledge.

[12]     Evidence by a witness in the first category that the accused made such a statement to that witness is admissible as evidence of the fact that the statement was made.  Admitted for that purpose, it does not fall within the definition of “hearsay statement” in s 4 of the Evidence Act 2006 as it is not offered to prove the truth of what the accused said.  There is an issue whether evidence in the second category is inadmissible hearsay.   If one person (A) gives evidence that the accused made a statement to the effect that his neighbour had been murdered to A, then the evidence is in the first category which I have discussed, and the statement is admissible as proof of the fact that the accused made such a statement.  If A gives evidence that another person (B) told A that the accused had made such a statement to B, then the evidence that the accused made such a statement is hearsay.  A’s evidence is being proffered as truth of the contents of B’s statement, namely that the accused made a statement to B.  The evidence of witness A does not establish, except by hearsay, that the accused made a statement.   That must raise the question whether it can establish the time at which the accused made that statement.  These issues were not

fully argued before me.  It is not appropriate to address these issues in detail in this judgment.  I deal with the s 347 application on the assumption that the evidence is admissible for the purposes relied on.

[13]     There are 11 witnesses in the first category, who say that the accused made such statements directly to them.  It is necessary to examine in some detail what each of them says as to what the accused said, and the time at which it was said.  The first witness  is  Mr Dymond  who  was  the  General  Manager  of  Hatuma  Foods.    His evidence is that the plant closed down its food processing operation on 21 January

2008.   On that Monday morning, 21 January, he organised a meeting with staff, during the clean down, a stage of the day when the plant was stopped for cleaning. He said “I can’t be exactly certain of the timing but I felt 9 or 10 o’clock in the morning sometime”.  He said that almost immediately after that meeting, while he was still downstairs, he was walking through the plant heading back towards the control room when Mr K   approached him and said he needed to leave the plant and make a statement to the police as his neighbour had been found to be deceased next door.  When asked why he thought it was at that stage of the process when he had the conversation he said he could not be certain other than he just seemed to remember Mr K   was able to go then.  There was no production, or if there was production, the mess on the floor wasn’t going to cause a problem in this short term. He said that the following morning, the Tuesday, Mr K  ’s shift (the day shift, 6am to  6pm)  was  informed  that  the  plant  was  actually  closing  down.     In  cross- examination at depositions, a previous statement that he believed that the meeting was around lunch time-ish somewhere between 10 and 12 was put to him.   He acknowledged that his independent memory did not recall it as being at 8.45 to 9 o’clock but that was based on the notes and the log that someone else wrote up.  He said that meeting was not in the afternoon after 12.  He said that he could not 100% rule out that the conversation occurred at some time around or after midday.  When asked in re-examination what were the chances that the conversation occurred after

2pm on that day he described those as just about zero.

[14]     Ms K  -Terrill, the daughter of the accused, was also working at Hatuma Foods.  She said that there was a staff meeting called on Monday 21 January, and in answer to the question of approximately when did she remember that staff meeting

she said “about the morning or afternoon somewhere around the morning or afternoon”.  She said that the accused told her that he had to go to the police station. She asked him why and he said because his neighbour had been murdered or killed, something like that.  That discussion took place in the smoko room and she could not remember how long after the meeting it was.

[15]     Ms Brooking was the day shift supervisor at Hatuma Foods.   She said that she arrived at work between 5.30 and 5.45 on Monday 21 January.  She said that the accused approached her in the smoko room at approximately 5.55am and asked if he could go and get his dog from the pound.  She was expecting him to go at 8.30 and he approached her before 8.30 to say that he was leaving now to get himself ready to go.  She did not actually physically see him leave the factory.  The next time that she saw him was about 1.30 that afternoon.  She was standing by the pea wash talking to Mr Dymond when Mr K   approached her and said he had had a phone call from police and that he had to meet up with them to make a statement at 2pm.  He said that there had been a murder and that his neighbour was murdered and that he was the last one to see her alive.  He said that he had last seen her alive on the Sunday night.

[16]     Mr Prior was also working at Hatuma Foods on the day shift (6am to 6pm). He said that one day, he did not know what day it was, he was having a smoke outside the smoko room when the accused came out of the smoko room.  He jumped into his truck and when Mr Prior asked him where he was off to the accused said his neighbour got murdered and that he was going to make a statement.  He says that this would have been about lunch time.

[17]     Ms Karauria said that she did remember an occasion when the accused came into the smoko room and told a group of them that he had to leave because he had just found out that his next door neighbour had been murdered.   She could not remember who was there and could not recall whether the conversation was during a smoko or a lunch break, or whether it may have been when they got together at the start of the day.

[18]     Mr Patena  was  working  at  Hatuma  Foods  on  21  January  2008.     He remembered that date because he had a meeting.  He could not remember the exact time of the meeting but if the log book is correct it took place at 8.45.  He said that within an hour after the meeting had finished the accused approached while he was outside working on the machines and the conversation would definitely have taken place between 9am and 10am.  The reason he was so certain about the time is that the meeting did not last very long and very shortly after the meeting the machines were up and running again and he started working again and he was definitely working when the accused came and spoke to him.  He says that it was within an hour of starting work after the meeting had finished.  He said that the accused said that he had had a bad feeling and went home and his neighbour had been murdered. He said that he had to go and see Ms Brooking to tell her that he had to go back and see the police.

[19]     Mr  Stitchbury said  that  sometime  after  his  8am  smoko  he  spoke  to  the accused who told him that the police had called him.  It was all a bit of a blur as he was talking very quickly so he couldn’t be sure of what he actually said.  He said that the  accused  left  work  that  morning  and  when  he  came  back  he  said  that  his neighbour had been found dead.  The accused said that he had just seen her the night before (Sunday, 21 January) waving to him.   He said that he did not remember seeing the accused again that day until about 5.30pm when he saw him sitting in the smoko room.  When he spoke to him the accused said his neighbour had been found dead.  That she had waved out to him either the Saturday or the Sunday night but he was not sure which day it was and that he had thought it unusual that her curtains were open.

[20]     Mr Nathan said that he was at work on Monday 21 January and that he remembered that there was a meeting that morning which he thought happened at either  the  8am  of  10am  smoko  break  and  lasted  for  15  to  20  minutes.    He remembered the accused telling him that he had to go that day.  It must have been after that meeting.  He remembered him coming into the smoko room and he said that he had to go because the cops were at his house and something about his neighbour being murdered.  He said that when the accused told him this they were both  walking  from  the  smoko  room  back  towards  the  production  area.     He

remembers the accused wasn’t at work for very long that day and that is one reason why he is sure he said what he did that morning.  He didn’t actually see the accused leave the building but didn’t think he was there that afternoon but only presumed that because of what the accused had said.

[21]     Ms Te Kahu recalled that there was a meeting at work.  She was not sure of the exact time of the meeting but remembered that it lasted about 20 minutes.  She said that she and Ms K  -Terrill were in the smoko room when the accused came in.  She could not remember the accused exact words but he said that he had to go to the police to answer some questions.  The accused was speaking to Ms K  -Terrill but she could easily hear the conversation.  The accused said his neighbour had been murdered.  She said that this conversation took place before lunch time and it was definitely in the smoko room.

[22]     Mr Hokianga said that he started the day as usual on Monday 21 January by having a cigarette outside the smoko room when he arrived at work.  He said that the accused said that his neighbour had died.   He said that “she got wasted”.   The accused also said something about his neighbour having died of a fit.  He said that he had to go and see the police.  He thought this was strange as the police would usually come and see you, not the other way around.  He said that he saw the accused again later that morning when he gave him a cannabis bud and that if the log book was correct it would have had to be between 6am and 9.40am when the accused gave him the bud.

[23]     Ms Wikaire said that she, Mr Hokianga, Mr Samuels and someone else, who she could not recall, were in the smoko room with the accused when the accused said that he had to go to the police station at 2pm because his neighbour, an old lady, had died of a fit and he had to be interviewed.   She said that the accused was really talking more to Mr Hokianga than her but as she was standing beside them both she could easily hear the conversation.  She said that that conversation definitely took place before the shift started at 6am on Monday 21 February [sic].

[24]     In addition, there are four witnesses who fall within the second category which I have identified, namely those who did not obtain knowledge of the murder

directly from  the accused.    Ms Conza  said  that  at  some  time,  definitely before morning tea time which was 10 o’clock, someone, she didn’t remember who, told her that Mr K  ’s neighbour had been murdered the night before.   Later that day Mr K   asked if he could finish at 5 o’clock because he had to go to the police station and make a statement about his neighbour’s murder.

[25]     Ms Aranui also worked at Hatuma Foods.  She said that Ms K  -Terrill had told her police had come and taken Zion.  She said that there was a murder and her dad was called in because it was his neighbour because he lived next door to her.

[26]     Ms Johnston said that she could remember the accused leaving work on the Monday morning.  She remembered the accused was definitely at the meeting.  That after the meeting she remembered speaking to Ms K  -Terrill either as she came out of the smoko room or while Ms Johnston was cleaning around the belt area and the drain.  Ms K  -Terrill said the accused’s neighbour had been murdered and the police came to get him.

[27]     Ms Fletcher said that around lunch time, about 12 o’clock, she noticed the accused walking out into the change room and she asked someone where he was going.  The person, it may have been Ms Nathan, said the police needed to speak to him about his neighbour and someone had told her earlier that his neighbour had died.  In a later statement, she said that she was sure he left work at about 12.00 to

1.00pm.

[28]     The Crown case as to timing is supported by certain logbook entries as to the timing of certain events during the day on Monday, 21 January.   There is also evidence that that was the last day of work before the closure of the factory.  The evidence is that staff were sent home when they reported for work the following morning.

Discussion - s 347 application

[29]     It would be essential to a verdict of guilty that the jury draw two conclusions from the evidence which I have described.   First, that there was no  reasonable

possibility that the various discussions took place after the accused had spoken to Mr Nathan and Detective Constable Burrell and second, that it was a reasonable inference from his prior knowledge of the deceased’s death that he was the person who had killed her.   In relation to the evidence of the DNA on the cup, the jury would have to be satisfied that there was no reasonable possibility that that had been left by the killer.   Some reliance is placed by the Crown on some other possible strands of circumstantial evidence.  The first strand is a number of statements by the accused to the effect that he last saw the deceased alive on the Sunday evening, and that he was the last person to see her alive.  There is also some evidence, from the accused’s statement, of use of a term of endearment by the deceased to the accused, and evidence that the use of that term of endearment by the deceased was common. Some reliance is also placed on the evidence as to the accused’s statement about the deceased having suffered an epileptic fit.

[30]     My assessment is that each of the potential strands of circumstantial evidence is weak, and that, put together, they do not make for a strong Crown case.  However, I must not substitute my view of the facts for the assessment which a jury, properly directed, might make.  The essential question is whether the reasonable possibility that  the  statement  by the  accused  to  the  various witnesses  took  place  after  the conversations with Mr Nathan and Detective Constable Burrell can be excluded. That assessment is one which can only properly be determined after the Crown evidence has been given, and tested by cross-examination.  If it were accepted by the jury, the evidence of at least some of those witnesses might exclude that possibility. That evidence might, if accepted, lead to an inference that the only means by which the accused could have known that his neighbour was dead was if he were the person who had killed her.  The inference is not one which would necessarily follow, but it is not so tenuous it is possible to say that, taking the view of the evidence most favourable to the Crown, no reasonable jury could draw it.   If that inference were drawn, that might lead a jury to draw an inference that the DNA on the cup was not connected with the killer.   That would mean that the Crown case, although not strong, would not be so weak that a jury properly directed could not reasonably hold it proved.   The Crown case, at its highest, does potentially reach a level where a guilty verdict could not be said to be unreasonable.

[31]     Mr Williams mounts a challenge to the credibility and reliability of two of the witnesses, (Ms Wikaire and Mr Hokianga) whom he submits may be affected by a degree of antipathy to the accused.   That involves an assessment which should ordinarily be made by the jury.  Particularly because their evidence does not stand alone on the crucial issue, this is not a case where that assessment should not be left for the jury.

[32]     For these reasons, I decline the s 347 application.

Section 334A application

[33]     The  admissibility  of  the  accused’s  statement  in  a  video  interview  with Detective Yule is challenged.  Objection is taken to some specific passages, but it is anticipated by counsel that those matters can be resolved by agreement.  The essence of the challenge is to the whole of the statement.  Counsel for the accused submits that the Practice Note on police questioning issued on 16 July 2007 under s 30(6) of the Evidence Act 2006 has not been complied with.  It is submitted that the police, prior to the commencement of the interview, had in their opinion sufficient evidence to charge the accused with the offence of murder, in that they were, at that time, in possession of all the evidence on which the Crown now relies to justify the charge, and that nothing said in the course of the interview added any strength to that case. Mr K   was arrested at the conclusion of the interview.   It is therefore submitted that  paragraph  2  of  the  Practice  Note  required  the  administration  of  a  caution. Counsel further submits that the interview had been planned to take place so that the accused would not be on his guard, when he was tired, and when he was under a misapprehension that he was not a suspect.  Counsel submits that on three occasions during the course of the interview the accused requested a lawyer and his request was “brazenly ignored” and the interview continued as if he had not made the request.   Counsel submits that his request was not even considered but callously disregarded.   Counsel submits that it would be unfair and oppressive to condone what it is submitted was a deliberate disregard of the accused’s rights.

[34]     Counsel for the Crown submits that the interview is probative for a number of reasons including:  that the accused acknowledges that the victim was his neighbour;

that he explains the nature and extent of his relationship with the victim;   that he gives a detailed explanation for his movements on the days prior to and after the victim’s death and discovery of her body in such a way as to confirm that absence of an alibi;  that he acknowledges that he made statements to Hatuma Foods witnesses about the victim’s death but gave an innocent explanation to his knowledge, denying that he had prior knowledge;  and that he provides an explanation for the time and place of his sightings of the victim around the time of her death.  Counsel further submits that at the time of the interview the accused understood that he was a suspect and had been aware of that for some time.  Counsel submits that the nature of the questions asked during the interview were appropriate.

[35]     Under s 30(5) of the Evidence Act 2006, evidence from the interview is improperly obtained if it is obtained unfairly.  Under ss(6), I must take into account, in deciding that question, the guidelines in the Practice Note.   The two relevant questions are:

(a)       Whether the interview has been conducted in breach of the Practice

Note;  and

(b)      Whether, if so, the statement has been obtained unfairly.

[36]     I  consider  that  the  stage  had  been  reached,  when  the  interview  was conducted, where the caution was required to be given.   At the beginning of the interview, after some introductory exchanges, Detective Yule said “okay, and I’ll give you your rights again okay”.  He administered a caution and Mr K   indicated that he understood his rights.   Accordingly,  I find that a  caution  was  given  as required by the Practice Note.

[37]     The next issue is whether Mr K  ’s requests for a lawyer were properly addressed.  The first two occasions relied upon occurred at the commencement of the interview.  In the first, Mr K   raised for himself the possibility that he could get a lawyer if he wished and at that point Detective Yule gave the caution.   A few moments later, before the interview had gone beyond the introductory phase, the accused said:

ZK      Yeah, I would like to get my lawyer here but um I’ll see how far, yeah, what we’re talking about.

GY     Okay.  And you understand all your rights. ZK     Yeah I understand all my rights

GY     Okay.  Well that’s good.  Okay. ZK        Yeah.

GY     And as I said before

ZK      And as you said I’m only here on consent

GY     Yep

ZK      Eh?

GY     Yep you’re free to leave anytime you want. ZK     Sweet as mate.

GY     Okay.  All right. ZK       Sweet as.

[38]     I do not consider that Mr K  ’s comments were properly to be regarded as a request for a lawyer which should have been acted on in such a way as to facilitate that request.  Mr K   had only moments earlier raised the possibility that he get a lawyer, and understood that he could do so.   The interview had not proceeded to matters of substance.  I regard this as essentially an extension of the first occasion identified by counsel rather than as a second and separate request.  I do not consider that Detective Yule acted unfairly in proceeding.

[39]     The third occasion relied upon was at the conclusion of the interview where the following exchange took place:

ZK      Can I get a lawyer please.

GY     Yep we’ll terminate this interview.

[40]     The interview was promptly and appropriately terminated by Detective Yule at that point.  No unfairness resulted.

[41]     I consider that at no stage was the questioning pursued in circumstances where a request for a lawyer had been made in terms which required the interviewing officer to take steps to facilitate that request.  Nor do I consider that any of the other matters relied upon, either individually or together, resulted in unfairness to the accused.  The interview was accordingly not conducted unfairly in terms of s 30(5) of the Evidence Act 2006.

[42]     For these reasons, I conclude that the video statement is admissible.

“A D MacKenzie J”

Solicitors:         Elvidge & Partners, Napier for Crown

Peter Williams QC and Heeni Phillips Auckland for accused