R v King - [2009] NZCA 607

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…

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 R v King

Details

AGLC: R v King [2009] NZCA 607
Case: [2009] NZCA 607
Decision Date: 16 December 2009

CaseChat Overview and Summary

Zion Hiona King applied for leave to appeal a ruling by Potter J, who held that certain exculpatory statements made by King to Mere Wikaire were inadmissible at his trial for murder. The trial was scheduled to commence on 8 February 2010. King was charged with the murder of his neighbour, whose body was discovered on 21 January 2008. The Crown case relied heavily on statements King allegedly made before he could have innocently learnt of his neighbour’s death. On 11 March 2008, Wikaire telephoned King at the police's request, and the conversation was recorded. During the call, King made the exculpatory statements in question. The Crown decided not to call this evidence.

The court considered two main legal issues: (a) the direct admissibility of King's remarks and (b) King's entitlement to use the transcript of the call to impeach the credibility of Wikaire and the police. The court held that s 21 of the Evidence Act 2006 was the primary relevant provision and that the exclusion of inadmissible evidence did not infringe s 25 of the New Zealand Bill of Rights Act 1990. The court found that the admissibility of King's statement depended on who tendered the statement, with the prosecution able to offer it but not the defence. The court also noted that trial judges had powers to control the criminal trial process, which could include requiring a prosecutor to lead particular evidence. However, the jurisdiction of the court under s 379A did not provide for challenges to rulings under s 368 or as to whether s 25 of the New Zealand Bill of Rights Act required a prosecutor to lead certain evidence.

Regarding the second issue, the court held that the extent to which defence counsel could cross-examine Wikaire and the police officers on the phone call for the purpose of impugning their credibility was not explored before Potter J. The court granted the extension of time sought but dismissed the application for leave to appeal.

The court issued an order prohibiting the publication of the judgment and any part of the proceedings in news media or on the internet or other publicly available database until final disposition of the trial. Publication in law reports or law digests was permitted.

Orders