R v King
[2009] NZCA 607
•16 December 2009
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN
LAW REPORT OR LAW DIGEST PERMITTED
IN THE COURT OF APPEAL OF NEW ZEALAND
CA754/2009 [2009] NZCA 607
THE QUEEN
v
ZION HIONA KING
Hearing: 16 December 2009
Court: William Young P, O'Regan and Baragwanath JJ Counsel: E R Fairbrother and H J Phillips for Applicant
B D Tantrum for Crown
Judgment: 16 December 2009
ORAL JUDGMENT OF THE COURT
AWe grant the extension of time which has been sought but dismiss the application for leave to appeal.
BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or
R V ZION HIONA KING CA CA754/2009 16 December 2009
other publicly available database until final disposition of trial.
Publication in law report or law digest permitted.
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1] Zion Hiona King applies for leave to appeal from a pre-trial ruling given by Potter J in which she held certain exculpatory statements the applicant made to Mere Wikaire to be inadmissible at the applicant’s trial for murder.
[2] Potter J’s ruling was given on 24 September 2009 but the application for leave to appeal was not filed until 4 December 2009. So an extension of time is required. The timing point is of concern given that the applicant’s trial is to commence on 8 February 2010.
The factual background
[3] The applicant is charged with the murder of his next door neighbour. The Crown case is that he murdered her on or about 19 January 2008. Her body was discovered on the morning of 21 January 2008.
[4] An unusual feature of the case is that the Crown relies heavily on statements which it alleges were made by the applicant and which reveal an awareness of the homicide before he could innocently have learnt of his neighbour’s death. Ms Wikaire is one of the witnesses who will give evidence of such a statement.
[5] On 11 March 2008, Ms Wikaire telephoned the applicant. She did so at the request of the police and the resulting discussion was recorded by the police. In the
course of it, Ms Wikaire complained that she was being “harassed by the cops”. The ostensible purpose of the call was that she wanted to know what she should say if the police spoke to her again. She was plainly fishing for admissions. In response the applicant made the exculpatory statements which are in issue before us.
[6] The Crown has elected not to call this evidence.
The relevant statutory provisions
[7] The Evidence Act 2006 relevantly provides:
21 Defendant who does not give evidence in criminal proceeding may not offer own statement
(1)If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.
(2)To avoid any doubt, this section does not limit the previous consistent statement rule.
27 Defendants' statements offered by prosecution
(1)Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.
(2)However, evidence offered under subsection (1) is not admissible against that defendant if it is excluded under section 28, 29, or 30.
(3)Subpart 1 (hearsay evidence), subpart 2 (opinion evidence and expert evidence), and section 35 (previous consistent statements rule) do not apply to evidence offered under subsection (1).
(4) To avoid doubt, this section is subject to section 12A.
35 Previous consistent statements rule
(1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the witness's evidence is admissible if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
[8] Also material in a more general way are ss 6 (purpose), 7 (relevance),
11 (inherent and implied powers of the court), 12 (matters not provided for) and 17 and 18 (hearsay).
[9] Given the arguments advanced, we should also set out s 368(2) Crimes Act
1961:
368 Adjourning trial for witnesses
...
(2)If the Court is of opinion that any witness who is not called for the prosecution ought to be so called, it may require the prosecutor to call him, and, if the witness is not in attendance, make an order that his attendance shall be procured; and the Court may, if it thinks proper, adjourn the further hearing of the case to some other time during the sittings until that witness attends.
The approach of Potter J
[10] The argument for the applicant in the High Court was advanced primarily on the basis that the applicant’s denials were statements which were relevant and in the interests of justice should not be “concealed” from the jury.
[11] From the point of view of Potter J, the primary problem with the admissibility of the applicant’s exculpatory statements lay in s 21, under which the applicant’s exculpatory statements were inadmissible. She took the view that it did not make any difference that Ms Wikaire was co-operating with and acting in effect under the direction of the police at the time of the telephone call. She also considered that s 368 of the Crimes Act did not provide an appropriate mechanism to avoid the s 21 problem.
The argument before this Court
[12] Before us Mr Fairbrother, for the applicant, maintained broadly the same line of argument as had been advanced to Potter J but he also claimed that the record of the discussion was material to the credibility of Ms Wikaire and the police officers who were involved in the telephone call.
[13] We will accordingly evaluate the case in terms of:
(a) The direct admissibility of the remarks of the applicant;
(b)The entitlement of the applicant to use the transcript of the call to impeach the credibility of Ms Wikaire and the police.
The direct admissibility of the remarks made by the applicant
[14] It is quite clear that s 21 is the primarily relevant provision: see R v Frost [2008] NZCA 406 at [13] – [17]. There the Court made it clear that the exclusion of inadmissible evidence does not infringe s 25 of the New Zealand Bill of Rights Act
1990.
[15] We think it clear that s 21 means what it says: see Mahoney and others The Evidence Act 2006: Act and Analysis (2007). The scheme of ss 21 and 35 means that there is comparatively little scope for a defendant to tender an out of court exculpatory statement. Such a statement is not admissible (when offered by the defendant) unless the defendant gives evidence and then only in accordance with the limitations provided for in s 35.
[16] Sections 21 and 27 suggest that the admissibility of a defendant’s statement depends on who tenders the statement, so that it is admissible if offered by the prosecution and inadmissible if offered by the defence. If so, this implies that the admissibility of such a statement turns on the exercise of the prosecutor’s discretion. At the heart of the submissions made by the applicant is that this cannot be so and that this requires a robust interpretation of, or approach to, s 21.
[17] We accept that response of a defendant to a police officer when taxed with the commission of a crime has long been regarded as admissible, at least in practice, despite the hearsay problem. Further, before the Evidence Act was enacted statements to the police of a mixed inculpatory and exculpatory character were also held to be admissible even where the prosecution did not wish to rely on them. For example, in R v Tozer [2002] 1 NZLR 193 (CA) where the appellant declined a police interview and instead, after seeking legal advice, prepared a statement of his version of events which was made available to the police, this Court held that what it regarded as a mixed statement was admissible and was required to be placed before the jury.
[18] We think it likely that s 21 was intended to reverse the practical effect of decisions such as Tozer. However, we do not see prosecutors as having an uncontrolled discretion not to lead such evidence given the powers which trial judges have to control the criminal trial process.
[19] As to these powers, s 368(2) of the Crimes Act may be applicable. That empowers a Judge to require the prosecution to call a witness. We note that this provision is of little obvious relevance in the present case (as presumably both Ms Wikaire and the police officers will be giving evidence anyway). But implicit in the section may be a power to require a prosecutor to lead particular evidence and in this way to engage s 27. And, irrespective of that, such a power must be implicit in s
25 of the New Zealand Bill of Rights Act 1990. In the event of an unfair decision by a prosecutor not to lead evidence as to what an appellant said at a police interview, it would thus be open to the Court to require that evidence to be led. As to this, see Illingworth and Mathias “The Admissibility of Hearsay Statements and Opinion Evidence” in Young and Chambers Evidence Act 2006 (NZLS Intensive June 2007) at 50 – 51.
[20] This approach obviates the need for a strained approach to s 21 as contended for by Mr Fairbrother. He suggested that the statement to Ms Wikaire was not the applicant’s “own hearsay statement” under s 21 but rather was “owned” by Ms Wikaire or the police. What he argued generally was that s 21 should apply only to contrived statements of which Tozer might be thought to provide an example. But
such a meaning cannot be extracted from s 21 and there is no need to try to force the words used in the section given the powers of trial judges to control the criminal trial process.
[21] Coming back to the facts of this case, we can see no basis upon which the prosecutor could fairly be required to lead evidence of the phone call. It is just the sort of evidence which is contemplated by s 21 as being inadmissible. The police involvement in the organisation of the phone call does not mean that the discussion is the equivalent of a police interview. As well, the applicant has had ample opportunity to explain his side of events in the course of police interviews which will be the subject of evidence.
[22] In any event, the jurisdiction of this Court under s 379A does not provide for challenges to rulings under s 368 (see R v Bain [2009] NZCA 1) or as to whether s
25 of the New Zealand Bill of Rights Act requires a prosecutor to lead certain evidence.
The entitlement of the applicant to use the transcript of the call to impeach the credibility of Ms Wikaire and the police
[23] Plainly the police and Ms Wikaire sought to trick the applicant into making admissions and we were told that the applicant’s counsel may wish to make use of the telephone call to impugn the credibility of both Ms Wikaire and the police officers who were associated with the call.
[24] Counsel for the applicant maintained that on the ruling of Potter J such cross- examination is precluded. We disagree.
[25] The extent to which defence counsel may cross-examine Ms Wikaire and the police officers on the phone call for this purpose (that is impugning their credibility) was not explored before Potter J. Her ruling was necessarily only provisional (see s 344A(4)) and cannot sensibly be taken as controlling an issue which was not submitted to her.
[26] The argument for the appellant in this Court seems, in any event, to involve an issue which depends so much on the run of the trial as to be inappropriately addressed under s 344A.
Disposition
[27] We grant the extension of time which has been sought but dismiss the application for leave to appeal.
Solicitors:
Crown Law Office, Wellington
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