R v Kingi - [2017] NZHC 3225

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 Defendant

Judgment:

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…

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 Kingi

Details

AGLC: R v Kingi [2017] NZHC 3225
Case: [2017] NZHC 3225
Decision Date: 19 December 2017

CaseChat Overview and Summary

In the case of R v Kingi, the Crown sought to adduce voice identification evidence from Piripi Chase, who claimed to recognise Gabriel John Kingi's voice as the offender during an aggravated robbery in Kope, Whakatane on 27 January 2016. The dispute centred on the admissibility of this voice identification evidence under Section 46 of the Evidence Act 2006, which requires the Crown to prove the reliability of the identification on the balance of probabilities. The court had to assess whether the circumstances under which the identification was made were reliable.

The legal issue before the court was whether the Crown had established the reliability of the voice identification evidence provided by Mr. Chase, considering the context in which it was made. Factors such as the length of time Mr. Chase and Mr. Kingi had known each other, the number of words spoken by the offender, and the circumstances under which Mr. Chase made his statement were scrutinized. The court also considered additional evidence, such as CCTV footage and DNA evidence, which seemed to implicate Mr. Kingi but did not directly relate to the reliability of the voice identification.

Justice Peters concluded that the voice identification was unreliable and thus inadmissible. The identification was made in circumstances where Mr. Chase had a motive to lie, having been arrested and interviewed by police who had not believed his denials of involvement in the robbery. Additionally, Mr. Chase had initially denied knowing Mr. Kingi and denied seeing him at the crime scene. The court found these inconsistencies and the pressure of being arrested and facing charges to be significant factors undermining the reliability of the identification. The court did not find it necessary to conduct a voir dire as it was clear that the deficiencies in the evidence could not be sufficiently addressed through further examination of Mr. Chase.

The court's final order was that the Crown's application to admit the voice identification evidence was declined.

Orders