R v Kingi
[2017] NZHC 1828
•3 August 2017
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 HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2016-088-000386 [2017] NZHC 1828
THE QUEEN
v
KORONERIA KINGI
Hearing: 25 July 2017 Appearances:
M B Smith and J P Scott for Crown
B Sellars for DefendantJudgment:
3 August 2017
JUDGMENT OF KATZ J
This judgment was delivered by me on 3 August 2017 at 3:00pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel: Marsden Woods Inskip & Smith, Crown Solicitor, Whangarei
B Sellars, Barrister, Auckland
R v KINGI [2017] NZHC 1828 [3 August 2017]
Introduction
[1] Koroneria Kingi is charged with murdering his brother-in-law, David Taniora, in Whangarei on 10 February 2016.
[2] Twenty years ago, on 20 July 1997, Mr Kingi murdered his wife in Australia. He pleaded guilty and was sentenced to 14 years’ imprisonment with a minimum period of imprisonment of 10 years. He was deported to New Zealand on his release from an Australian prison in June 2008.
[3] The Crown has applied for an order that Mr Kingi’s Australian murder conviction be admitted as propensity evidence at his forthcoming trial. Mr Kingi opposes that application.
The Crown case
[4] I summarise the Crown case below, based primarily on the various witness statements on the court file. I note, however, that this does not include the DVD interview with Mr Taniora’s wife, Gwen Taniora, who apparently witnessed the killing.
[5] Mr Kingi is one of ten siblings. Their father, Hane Kingi, died in 2004. He left his children equal shares in a block of land at Ngaratunua, north of Whangarei.
[6] As at 2016 five of the siblings were living on the family land, in four separate houses. Mr Kingi’s sister Gwen lived with Mr Taniora in the original farm homestead. Mr Kingi lived in a tent towards the rear of the family land. He had discussed building a house on the family land with his siblings when he returned from Australia in 2008, and they had agreed to that. Mr Kingi would take showers and do laundry at the homestead, and also sleep inside sometimes, particularly if it was raining.
[7] In recent times Mr Kingi appears to have become increasingly dissatisfied with his living situation, and resentful of Gwen and her husband living in the family homestead. He told them and others that the land and the homestead were his.
[8] On the evening of 9 February 2016, Mr Taniora visited his brother-in-law Hori Kingi who also lived on the family land. The two men had quite a lot to drink, and Mr Taniora returned to the homestead late in the evening. It appears that, in his intoxicated state, he made quite a lot of noise when he returned home. This woke
Mr Kingi, who was sleeping at the homestead that night. Mr Kingi was angry and confronted Mr Taniora. He assaulted him, yelled at him angrily (using numerous expletives) and told him that he had no right to be there. He threatened to kill
Mr Taniora, and told him to get out of the house and never come back. Mr Kingi’s yelling was so loud that it woke up a number of neighbours. A couple of them considered phoning the police but did not do so.
[9] Mr Taniora and Gwen left the homestead in the middle of the night and went to Hori’s house. Gwen seemed sad, and told Hori and his wife, Sandra, that Mr Kingi had “kicked them out” of the homestead as he believed it was his. She said they would have to find somewhere else to live. The couple then went to the home of another sister, Peti Kake, who also lived on the family land.
[10] In the morning, however, Mr Taniora and Gwen decided to return to the homestead. Gwen’s brother Hunia visited them there early in the afternoon. Gwen appeared to be scared and stressed, but Mr Taniora told Hunia they would be okay.
[11] Gwen had reported Mr Kingi’s assault on her husband to the police that morning. However, when the police visited them later that day she said that she did not wish to press charges. Instead, they were going to have a family meeting to try and sort out the issues over occupancy of the homestead.
[12] At about 4.30 pm Mr Kingi came back to the homestead and found that
Mr Taniora and Gwen had returned. He attacked Mr Taniora and killed him by shooting him in the head repeatedly with a slug gun and then clubbing and stabbing him with pieces of wood and knives. There is evidence that in the days or weeks prior to this Mr Kingi had contacted at least two different people to try and get a gun.
[13] Gwen drove to the Whangarei police station to report the matter to the police. She told them that Mr Kingi had killed her husband by shooting him in the head multiple times with a slug gun.
[14] Mr Kingi, meanwhile, went to the nearby house of his sister Raina Shilton. He told her, “I’ve killed Dave, sis”. She asked him why he had done it and he said, “I told him not to come back to the house again”. He seemed normal and calm. Ms Shilton dialled 111 and told the emergency operator that Mr Kingi had killed Mr Taniora by shooting him and stabbing him with weapons. She informed the operator that Mr Kingi was with her at her home. The operator asked Ms Shilton about the weapons he had used. Ms Shilton relayed the operator’s questions to Mr Kingi and he stated that the weapons were still at the scene address, together with the body of the victim.
[15] At about 6.30 pm the police arrived at the homestead and discovered
Mr Taniora’s body lying outside on the lawn. Nearby were several weapons including a broken piece of wood, a piece of wood that appeared to have been used as a club, knives and a pistol. Mr Kingi was arrested.
Mr Kingi’s defence and the legal issues it raises
[16] Although no formal admissions have yet been made, Ms Sellars advised that it is not in dispute that Mr Kingi killed Mr Taniora and intended to do so. The sole issue at trial will be whether he was justified in doing so. Mr Kingi says that he was acting in self-defence.
[17] Since his arrest Mr Kingi has been diagnosed as having a chronic psychotic illness, most likely paranoid schizophrenia. He is currently a patient at the Mason Clinic. Mr Kingi has been found fit to stand trial, but there are psychiatric reports on the court file which indicate that an insanity defence may be available. An updated psychiatric report (requested by the Court) is pending. Ms Sellars advised, however, that she has firm instructions from Mr Kingi not to advance an insanity defence.
Mr Kingi strenuously resists any suggestion that he may have mental health issues.
[18] At this preliminary stage, Ms Sellars has (understandably) not disclosed precisely what Mr Kingi’s evidence is likely to be regarding the circumstances “as he
believed them to be” at the time he killed Mr Taniora. She acknowledges, however, that other people in the courtroom may well view Mr Kingi’s evidence regarding those circumstances as being based on paranoid or delusional beliefs. Importantly, however, Mr Kingi does not. Although the defence will not be raising insanity as a defence, Ms Sellars submitted Mr Kingi’s apparent mental health issues are nevertheless relevant to his plea of self-defence. That is because the test for self-defence is focused on the defendant’s subjective perception of the circumstances (as discussed further below).
[19] A psychiatric report prepared by Dr Krishna Pillai (which Ms Sellars annexed to her submissions) expresses the view that Mr Kingi’s proposed defence “hinged upon some aspects of his abnormal thought content with regards to the intentions of the victim and the victim’s close family who were the defendant’s close family”. His report further notes that at the time of Mr Kingi’s admission to the Mason Clinic he described a range of grandiose and delusional persecutory beliefs regarding his wealth, ownership of lands and vast sums of money. Further, Mr Kingi believed that others around him sought to dispossess him of these, including family members and Mr Taniora.
[20] The test for self-defence was amended in 1981 following a recommendation by the Criminal Law Reform Committee that the degree of force used should be measured against the circumstances as the defendant believed them to be, rather than as they actually were.1 Section 48 of the Crimes Act 1961 now states:
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
(emphasis added)
[21] The test for self-defence is therefore subjective as to the defendant’s perception of the circumstances, and objective as to his or her response to those circumstances. In Mr Kingi’s case the jury will need to focus on the genuineness of Mr Kingi’s beliefs regarding those circumstances, not the reasonableness of his beliefs. If satisfied that
the relevant circumstances, as Mr Kingi honestly and genuinely believed them to be,
1 Criminal Law Reform Committee Report on Self Defence (November 1979) at [23]. At [10] the Committee noted that the previous law was not entirely clear as to whether a defendant’s intentions and beliefs were assessed objectively or subjectively.
would have justified the use of lethal force, the jury must acquit Mr Kingi of the charge of murder.
[22] It is presently unclear what rational narrative would support a defence of self- defence in this case. The extent to which psychological abnormalities may be taken into account for the purposes of self-defence is unclear. In R v Bridger it was argued that psychiatric evidence explaining an irrational belief resulting from a disease of the mind is admissible only in support of an insanity defence.2 Section 23(1) of the Crimes Act states:
Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
When s 48 is read alongside s 23(1), it is arguable that a claim of self-defence can apply only to sane beliefs. Ultimately, however, the Court of Appeal found it unnecessary to decide this difficult issue.3
[23] It may not be possible to sidestep the issue in this case. There is a real risk that if it appears from Mr Kingi’s evidence that his beliefs regarding the relevant circumstances were not “sane” beliefs, the trial Judge may not be willing to put self-defence to the jury but may, instead, elect to put the issue of insanity to the jury.
[24] Some of these issues arose in R v Green. In that case Mr Green shot a member of the Armed Offenders Squad as a result of his delusional belief that the officer was a KGB agent trying to kill him.4 Mr Green did not raise the defence of insanity at trial, but instead appears to have relied on self-defence. The Crown, however, raised the issue of insanity. It called four psychiatrists who all gave evidence that Mr Green was legally insane at the time of his offending. The trial Judge declined to put the defence of self-defence to the jury, but did allow the issue of insanity to go to the jury. At trial
the jury found that Mr Green was insane. On appeal, the Court of Appeal held that the
2 R v Bridger [2003] 1 NZLR 636 (CA) at [33]. See also in England and Wales: R v Oye [2013] EWCA Crim 1725, [2014] 1 WLR 3354 at [39]; R v Martin [2001] EWCA Crim 2245, [2003] QB
1 at [67]; and R v Canns [2005] EWCA Crim 2264 at [19]. And in Canada: R v Oommen [1994]
2 SCR 507 (SCC) at 520; and R v Chaulk [1990] 3 SCR 1303 (SCC) at 1361-1362. And in
Australia: R v Walsh (1991) A Crim R 419 (TASSC).3 At [34].
4 R v Green [1993] 2 NZLR 513 (CA).
trial Judge’s decision to permit the Crown to adduce evidence of insanity was wrong as a matter of law.5
[25] Although the Crown may not raise the issue of insanity, the trial Judge can. The circumstances in which he or she may put the issue of insanity to the jury, if the defendant has not raised it, are set out in s 20(4) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:
In a case where it appears from the evidence that the defendant may have been insane at the time of the commission of the offence, the Judge may ask the jury to find whether the defendant was insane within the meaning of section
23 of the Crimes Act 1961, even though the defendant has not given evidence as to his or her insanity or put the question of his or her sanity in issue.
[26] It currently appears that if Mr Kingi gives evidence at trial it may put in issue his mental state at the time of the alleged offending. His evidence may raise a prima facie case that Mr Kingi did not know that what he was doing was wrong or understand the quality of the act he was committing. In that event the trial Judge may be required to put an insanity defence to the jury under s 20(4).
[27] Proceeding down such a route is fraught with difficulty, however, as illustrated by Hemopo v R.6 If the trial Judge does decide to put insanity to the jury, then it is likely that both the Crown and the defendant would need to be given the opportunity to call psychiatric evidence.7 It is possible that the Court may also need to call an independent psychiatric expert itself.8 This could result in the trial having to be aborted, if the required psychiatric evidence is not available promptly. (In this case the Court has recently ordered, of its own volition, an updated psychiatric report. It is
due to be provided next week).
5 At 523. It was observed, however, that in the event of an unqualified acquittal of an insane or dangerous person, the provisions in Part II of the Mental Health (Compulsory Assessment and Treatment) Act 1992 could be used to ensure their treatment.
6 Hemopo v R [2016] NZCA 398 at [64]-[74] and [78]-[80]. The defendant successfully appealed against his conviction on the basis that he did not receive a fair trial. Relevant to that finding was
the manner in which the trial Judge had raised the possibility of putting insanity to the jury under s 20(4), which (in part) resulted in the defendant electing not to give evidence in fear of such a finding.
7 R v Dickie [1984] 1 WLR 1031 (CA) at 1037.
8 See R v Green, above n 4, at 515.
[28] Against this background, I now turn to consider the propensity evidence that the Crown seeks to adduce.
Propensity evidence – Mr Kingi’s previous murder conviction
[29] Mr Kingi pleaded guilty to a charge of murdering his former partner in Australia in 1997. Based on the Australian police file and the Judge’s sentencing notes, the relevant facts appear to be as follows.
[30] Mr Kingi had been in a relationship with Donna Kingi since 1991. Their daughter was born in 1992. They married in April 1996 and separated in June 1997. Following the separation Ms Kingi lived at her parents’ home in Sydney. Mr Kingi lived elsewhere, with the couple’s daughter. However, the daughter spent time with her mother each week. During the separation Mr Kingi and his former partner continued to see each other and occasionally engaged in sexual relations. Mr Kingi believed the separation would be temporary and that they would reconcile.
[31] In the early afternoon of 20 July 1997, Mr Kingi visited the victim at her parents’ address. Her parents were not home. While their daughter watched a video Mr Kingi and the victim had sexual intercourse. Afterwards the victim told Mr Kingi that she would not return to him and that he could not take their daughter. They argued over custody. According to Mr Kingi (and it appears to have been accepted as fact at sentencing) the victim said to him that she would sleep with all his friends and that she would mistreat their daughter.
[32] Mr Kingi left the victim’s address and returned to his own home. He got a crowbar and a knife and returned to the victim’s home. He found her in an upstairs bedroom. He struck her in the head with the crowbar. He then stabbed her repeatedly in the chest with the knife. The attack with the crowbar caused a depressed skull fracture. Both the injuries to the head and the injuries to the chest could have caused the victim’s death. During a scene examination, the police located a crowbar and a knife in close proximity to each other by the foot of the bed where the victim was laying.
[33] Mr Kingi left the victim’s address with his daughter and drove to his brother’s house. He left his daughter and his car at his brother’s house and ran to a nearby police
station. He entered the police station extremely upset and highly agitated. He admitted to officers that he had “snapped and I killed her, I killed her. I stabbed her”. Police then went to the victim’s parents’ address, forced entry into the house, and located the victim’s body.
Propensity evidence – legal principles
[34] Propensity evidence is evidence of acts, omissions, events or circumstances that a person has been involved in that has a tendency to show their propensity to act in a particular way or to have a particular state of mind.9 The prosecution may offer propensity evidence about a defendant only if the evidence has a probative value in relation to an issue in dispute in the proceeding that outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.10 When assessing the probative value of propensity evidence the Court must take into account the nature of the issues in dispute.11 The Evidence Act 2006 lists a number of matters the Court
may consider when assessing the probative value of the evidence.12
9 Evidence Act 2006, s 40(1)(a).
10 Section 43(1).
11 Section 43(2). See also Freeman v R [2010] NZCA 230 at [21]; and Ah You v R [2011] NZCA 82 at [23].
12 Section 43(3).
[35] The leading decision on propensity evidence is Mahomed v R. Describing the rationale for propensity evidence, the minority of the Supreme Court said:13
A typical Crown contention in a case involving alleged sexual offending might be that the defendant was either guilty or the victim of an implausible coincidence (namely to be falsely accused in such a similar way by a number of complainants). Another typical Crown contention in such a case might be that the defence rested on the implausible coincidence that of all the people the complainant chose to make a false complaint about, someone who just happened to have a proclivity to act in the way alleged was picked. As we will indicate later, this particular propensity theme has many variations, but common to them all are the ideas about coincidence and probabilities.
(footnotes omitted)
[36] The majority adopted that reasoning:14
The rationale for the admission of propensity evidence rests largely, as William Young J says, on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have.
Should the evidence regarding the Australian murder be admitted?
[37] The starting point is to identify the trial issue to which the propensity evidence is directed. As I have already noted, Ms Sellars advised that it is not in dispute that Mr Kingi killed Mr Taniora, nor that he intended to do so. There is accordingly no need for the Crown to rely on the propensity evidence to prove that Mr Kingi is the killer or that he had murderous intent. Rather, the key issue is whether Mr Kingi killed Mr Taniora in self-defence. Does Mr Kingi’s prior murder conviction have a probative value in relation to that issue that outweighs its prejudicial effect on him?
[38] Ms Sellars submitted that it does not. She argued that the fact that the medical reports indicate that Mr Kingi suffers from a significant mental disorder that causes him to suffer from delusional thinking (although Mr Kingi does not agree with that diagnosis) is highly relevant when considering the issue of propensity. She noted that there was no suggestion in the Australian proceedings that Mr Kingi was suffering from any mental disorder at that time. She submitted that evidence relating to that
offending will therefore be of limited assistance to the Court when considering the
13 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [51].
14 At [3].
present murder charge. The Court will not be comparing ‘like with like’. Ms Sellars further noted that the offending in Australia was not defended, and there is no mention in the Court’s sentencing notes of self-defence. The Australian offending is therefore far removed from the present circumstances.
[39] With reference to the relevant factors set out in s 43(3) of the Evidence Act, Ms Sellars noted that there has been a low frequency of offending, given the acts are separated by almost 20 years. Although there are some common features, including that the victim was a family member and that there are some similarities in the way the victims were killed, these factors must carry less weight when the actus reus (the fact that Mr Kingi killed the victim) is not in dispute.
[40] I am not persuaded, however, that the fact that mental illness did not feature as an issue in the Australian proceedings is as significant as Ms Sellars submits. It does not follow from the fact that Mr Kingi may (now) suffer from mental illness that any such illness was causatively linked to his fatal assault on Mr Taniora. Obviously, the vast majority of people who suffer from mental illness (including those who are delusional) do not kill family members. Ultimately the role that mental illness may have played in the relevant events will be a matter for the jury (depending on precisely what defences are put to them).
[41] The onus is on the Crown to disprove self-defence. Mr Kingi bears no onus of proving the defence. The jury must be satisfied beyond reasonable doubt either that Mr Kingi was not acting in self-defence or that the force he used was not reasonable in the circumstances as Mr Kingi believed them to be. The jury will therefore need to consider:
(a) What were the circumstances as Mr Kingi believed them to be? (As noted above, the trial Judge will likely need to determine whether
Mr Kingi is entitled to rely on delusional beliefs).
(b)Given those circumstances, has the Crown proved beyond reasonable doubt that Mr Kingi was not acting in self-defence? If yes, the defence fails. If no:
(c) Has the Crown proved beyond reasonable doubt that the force that
Mr Kingi used was not reasonable having regard to the circumstances as Mr Kingi believed them to be?
[42] I have summarised the evidence of the various Crown witnesses at [4] to [15] above. Although I have not had an opportunity to review Gwen’s DVD interview, I have reviewed the police statements of all of the other family members and neighbours who had personal knowledge of the relevant events. There is nothing in any of that evidence that, objectively, could have justified the use of lethal force against Mr Taniora.
[43] Whether the defence of self-defence succeeds will therefore turn on whether the jury accepts Mr Kingi’s subjective evidence of the circumstances as he believed them to be. It seems probable, given all the other evidence in the case, that there will be a significant disconnect between what Mr Kingi claims he believed the circumstances to be, and what they actually were when viewed objectively. The two alternative explanations for this disconnect would appear to be that:
(a) Mr Kingi is telling the truth about the circumstances as he believed them to be at the time he killed Mr Taniora, but those beliefs were (or may have been) delusional in key respects.
(b) Mr Kingi is not telling the truth about the circumstances as he believed
them to be at the time he killed Mr Taniora. He may be telling a deliberate lie, or it may be that ‘after the event’ Mr Kingi has, in effect, rewritten history in his own mind in an attempt to justify what he has done.
[44] Interestingly, Dr Pillai’s report tends to suggest that there has been some re-writing of history in relation to the Australian murder at least. Mr Kingi originally accepted responsibility for killing his wife. As well, he admitted to his brother that he had “snapped” and killed her, self-reported his actions to the police and subsequently pleaded guilty to the murder charge. Now, however, he claims (to Dr Pillai at least)
that his wife and her family were involved in a broad ranging conspiracy against him, requiring him to kill her in self-defence.
[45] In the present case the defence position is essentially that set out at [43](a) above. The Crown position is that set out at [43](b) above. The Crown argues, in effect, that the propensity evidence will assist the jury to decide between these two competing alternatives.
[46] Mr Smith submitted that Mr Kingi’s previous murder conviction shows that he has a propensity to respond with lethal force to high levels of interpersonal conflict with family members – in the first case his wife and this time his brother-in-law. Specifically, Mr Smith submitted that:
Following domestic disputes, the defendant becomes aggressive and violent. When he is aggressive and violent, he resorts to the use of weapons. When he uses weapons he uses multiple types of weapons. The weapons he uses include knives. When using knives, the defendant stabs those with whom he is engaged in a domestic dispute. When he stabs such a person, he does so multiple times and seriously enough to cause death.
[47] In the Australian case there was a background of interpersonal conflict and tension arising out of the breakdown of Mr Kingi’s marriage. Mr Kingi responded to a threat by his wife to take custody of their child from him by killing her. In the present case there was also a background of interpersonal conflict and tension, this time associated with the family land and occupancy of the family homestead. This culminated in Mr Kingi banishing Mr Taniora from the homestead, and then subsequently killing him when he returned.
[48] Mr Smith submitted that in both cases the killing of a family member occurred against a background of stress and conflict, and followed a verbal altercation and threats to kill. Similar weapons were used in each attack. In the Australian case
Mr Kingi used a crowbar and a large knife with a white handle. In the present case he used a slug gun, a wooden club and a large knife with a white handle. The knives were similar in appearance and shape. In both cases the method of the attack was the same. In the Australian case Mr Kingi struck the victim’s head with the crowbar and stabbed her in the chest and neck with the knife. In the present case he shot the victim in the
head with a slug gun (which differs from the Australian case), but then struck the victim in the head with the club and stabbed him in the chest and neck with the knife.
[49] The cause of death was similar in both cases. In the Australian case the victim may have died from either the head injuries or the stab wounds to the chest. In the present case the victim died from the stab wounds to the chest and neck. In each case, following the attack, the weapons were left at the scene. Following each attack Mr Kingi behaved similarly. He made initial admissions (in the present case, to family; in the Australian case, to the police), but then declined to make a full statement to the police when given an opportunity.
[50] As for the extent to which the acts are “unusual”, Mr Smith noted that murder is, in itself, a relatively unusual offence. He further submitted that these particular murders have some characteristics that are unusual even amongst murders. First, in each case multiple weapons were used. Second, the weapons were placed together afterwards, near the victim. Third, Mr Kingi made admissions to family shortly after the events.
[51] Ultimately, I am satisfied that the evidence relating to Mr Kingi’s Australian murder conviction is probative of the key issue in this case, namely whether Mr Kingi was acting in self-defence when he killed Mr Taniora. The circumstances of the Australian murder show that Mr Kingi is someone who has previously reacted with explosive rage and lethal violence to intense family conflict. Although the frequency of prior incidents is low (namely one incident), that is to be expected when the offence is murder.15
[52] Of course, the fact that Mr Kingi has previously responded to intense family conflict with lethal force does not mean that that is what occurred on this occasion. But it is relevant information that in my view should be available to the jury. It may
well assist them in the difficult task of deciding whether the Crown has proved its case
15 A single incident may be sufficient to establish a propensity where the incident is unusual or where it demonstrates probative force: R v Hanson [2005] 1 WLR 3169 at [9]; cited in R v Tainui [2008] NZCA 119 at [55]. See also R v Latifi [2013] NZHC 2274 at [13]: “there are some acts that have such a high barrier to carrying them out that doing one once establishes the propensity for acting in that way”.
beyond reasonable doubt, or whether Mr Kingi was, in fact, genuinely so fearful for his life that he had no option but to kill Mr Taniora in order to protect himself.
[53] Ms Sellars submitted that if this Court finds that the proposed propensity evidence is probative of an issue in dispute, the evidence should nonetheless be excluded as unfairly prejudicial. She submitted that it would have too great an impact on the jury’s reasoning and would lead to impermissible reasoning.
[54] There is no doubt that the proposed evidence is highly prejudicial. The trial Judge will need to direct the jury very carefully as to its permissible use.16 I find the issue to be a difficult one, but ultimately I am satisfied that the propensity evidence has a probative value in relation to the key issue in dispute (whether Mr Kingi was acting in self-defence) that outweighs the risk that it may have an unfairly prejudicial effect on Mr Kingi.
Result
[55] I direct that evidence relating to Mr Kingi’s conviction in Australia for the murder of his wife, and the circumstances of that murder, is admissible in these proceedings. Counsel are to confer regarding the precise form and content of the propensity evidence that is to be adduced. In the event that counsel are unable to
agree, any dispute is to be resolved by the trial Judge.
Katz J
16 As to directions see Mahomed, above n 13, at [91]-[95]; endorsed in Taniwha v R [2016] NZSC
123, [2017] 1 NZLR 116 at [64]-[65].
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