R v Kingi
[2017] NZHC 3225
•19 December 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE
CRI 2016-087-0226 [2017] NZHC 3225
BETWEEN THE QUEEN
Applicant
AND
GABRIEL JOHN KINGI Respondent
Hearing: 28 November 2017 Appearances:
A J Pollett for Crown
B J Hesketh for DefendantJudgment:
19 December 2017
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 19 December 2017 at 12 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Hollister-Jones Lellman, Crown Solicitor, Tauranga
Counsel: B J Hesketh, Tauranga
R v KINGI [2017] NZHC 3225 [19 December 2017]
[1] On 29 November 2017, I informed counsel that I declined the Crown’s application dated 21 November 2017, seeking an order that the voice identification evidence the Crown sought to adduce from Piripi Chase was admissible. These are the reasons for my decision.
Background
[2] The Crown sought to adduce the evidence in support of its case that Mr Kingi was guilty of an aggravated robbery of cash from security guards on 27 January 2016, in Kope, Whakatane.
[3] There is no dispute that a person carrying a firearm (“offender”), with all of his face bar his eyes covered, approached the guards in the street; that on his instructions the guards dropped two bags that they were carrying; that the offender fired a shot in the air and took one of the bags when it was dropped; and ran back to a waiting vehicle and drove – or was driven – off. Witnesses apparently informed the police that two others were in the vehicle. It is relevant to what follows that Mr Kingi is a patched member of Black Power.
[4] The voice identification evidence in dispute is contained in a statement that
Mr Chase gave to the police at 11:30 am on 16 February 2016. It is to the effect that
Mr Chase and the offender had a brief conversation prior to the robbery and that
Mr Chase recognised the voice of the offender as Mr Kingi’s.
[5] At the time Mr Chase made his statement, he and his partner had been arrested for the offence, and Mr Chase had been interviewed at length, a matter about which I say more below.
[6] There is no dispute that Mr Chase and Ms Wilson were in the vicinity of the robbery. Mr Chase’s account, some of which was corroborated by CCTV footage, was that he had just been to a bank to withdraw some money; that his partner was waiting for him in their car; and that as Mr Chase left the bank Ms Wilson yelled out to him that the car battery was flat. Mr Chase’s evidence was that led him to start trying to
find someone to “jump start” the car and that in doing so he came face to face with the person holding the gun, as follows:
As I walked towards Josephine I seen this guy down the alleyway between the Kebab shop and the Barbers. The guy was standing about 7 steps inside the alleyway from King Street. He looked really out of place and I thought something was wrong.
It looked like he was steering at my car or my misses so I went over to him to talk to him as I thought he was trying to hook up with my misses.
The guy then said to me “Get away.” I started to say “What the fuck ... ,” and he then said “Fuck off .... watch out.”
While he was saying this I saw that he was carrying something that looked like a gun wrapped up in a white sheet. He was holding it like a gun from his hip and then he lifted it up so I knew what he was up to.
It looked like a pistol grip shotgun from the way he was holding it.
I just thought he was going to rob a shop or a bank from what he was doing and how he showed me the gun.
As soon as he started speaking to me I knew it was Gabriel KINGI, I’ve got to know Gabriel over the last 6 months through being on PD at the same time as him.
Gabriel was wearing a black scarf with little skull and cross bones on it. The scarf was over his mouth and nose. I think he was wearing old faded blue trackpants, and an old man faded blue jacket with a hood. The hood was up over his head. He was wearing like old man clothes.
I then walked away and told my partner ... I said “Aye did you see that?”
She said “Oh fuck, what’s going on, He must be going to try and rob a bank or shop or something?”
I said “Oh fuck I don’t know.”
I then said “Oh I think that’s Gabriel.”
I said “I think” just to play it down because I didn’t want us to get involved. I did know it was Gabriel in the alleyway. I’m certain of that.
Discussion
[7] Section 46 Evidence Act 2006 provides:
46 Admissibility of voice identification evidence
Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of
probabilities that the circumstances in which the identification was made have produced a reliable identification.
[8] As is apparent from the provision, it is for the Crown to establish that a voice identification is reliable, having regard to the circumstances in which it was made. In this case, the identification is made on the basis of recognition, that is that Mr Chase and Mr Kingi had done community work together.
[9] In support of its application, the Crown also relies on these other matters:
(a) Earlier in the day Mr Kingi was filmed on CCTV putting petrol in what was later established to be the “get away” vehicle and buying “disc cutters” which apparently are required to get into the canisters used in ATMs. The Crown also relies on the fact that DNA was found on a bandana in the vehicle when the police located it, that DNA apparently being a match for Mr Kingi’s.
(b)A statement that Mr Chase made earlier that morning to the Police when he was being interviewed, namely that he had “got things [he] wanna say”.1 The submission is that these “things” are that Mr Chase could identify Mr Kingi as the offender.
(c) That the police retrieved a text message which they claim Mr Kingi sent to his partner from the police station that morning, referring to “Piripi”, that is Mr Chase, as a “snitch”.
(d) That Mr Kingi referred to Mr Chase in similar terms in (recorded)
telephone calls with his partner whilst remanded in custody.
[10] Counsel for Mr Kingi, Mr Hesketh, referred me to the factors that the Court of Appeal has specified might be taken into account in determining the reliability of voice identification evidence based on recognition.2 Of those, the two that arise in this case
are that there is nothing particularly identifiable in Mr Kingi’s manner of speaking and
1 New Zealand Police Transcript Form DVD Recorded Interview With Suspect dated 16 February
2016 at 6.
2 Hohipa v R [2015] NZCA 73 at [73].
few words are alleged to have been spoken by the offender. These count against the reliability of the identification.
[11] I accept that these matters are consistent with Mr Kingi being involved in the robbery, at least in some capacity. However, s 46 requires that the reliability of the identification be assessed on the basis of the circumstances in which it was made. Given that, I am not satisfied that the above matters are to be taken into account but, in any event, Mr Hesketh submits that the identification is unreliable and therefore inadmissible or ought to be excluded having regard to other circumstances prevailing when Mr Chase made his statement. Ms Pollett accepted that I may take these other circumstances into account in making my determination.
[12] The relevant circumstances are these.
[13] The police executed a number of search warrants early in the morning on
16 February 2016, including at Mr Kingi’s home and at the home of Mr Chase and
Ms Wilson. The Armed Offender’s Squad were present, at least at the home of
Mr Chase and Ms Wilson. All three were arrested in respect of the aggravated robbery and taken to the local police station. Mr Chase and Ms Wilson spoke to the police,
Mr Kingi did not.
[14] Detective McKenzie interviewed Mr Chase for an hour and 40 minutes or thereabouts, commencing at 7.10 am. In the course of the interview, the Detective asked Mr Chase if he recognised various people shown on CCTV footage the police had assembled, including Mr Kingi. Mr Chase denied recognising anyone. In fact, Mr Chase denied knowing Mr Kingi to any great extent; denied seeing him at the scene of the robbery; and told the Detective that he believed that Mr Kingi was still serving a sentence of imprisonment.
[15] From there the Detective put it to Mr Chase that he, and possibly Ms Wilson, had participated in the robbery as “lookouts”. Mr Chase denied this, saying that they had played no part whatsoever and that he had recently been released from prison and had no wish to return.
[16] The Detective took Mr Chase through CCTV footage of the robbery, telling
Mr Chase why it was the police believed that he and Ms Wilson were involved and rejecting Mr Chase’s denials.
[17] The interview concluded with the Detective continuing to say he did not believe Mr Chase and that the police would turn their attention to assembling their case against him. The statement in which the voice identification was made was taken three hours later.
[18] Mr Chase’s voice identification is not only inconsistent with his interview, but was made in circumstances in which the police had raised the possibility of Mr Kingi being the gunman, and when Mr Chase had been arrested for the offence and the Detective had made it clear that, despite Mr Chase’s denials, the Crown would proceed against him. For these reasons, Mr Hesketh submits, and I accept, Mr Chase had a motive to lie.
[19] For these reasons – the basis of the voice identification and the broader considerations referred to – I was not persuaded on the balance of probabilities that the circumstances in which the identification was made had produced a reliable identification.
[20] When I heard argument on 28 November 2017, I left open the possibility that it might assist me to hear Mr Chase’s evidence in a voir dire before determining the application. Crown counsel asked whether I wished to pursue this when I subsequently advised that I considered the evidence was inadmissible. As it transpired, however, I did not consider a voir dire could sufficiently address the
deficiencies in the evidence and thus saw no purpose in conducting the same.
Peters J
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