R v Kingi CA259/06
[2006] NZCA 455
•13 September 2006
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA259/06
THE QUEEN
v
PAUL TAKANA KINGI
Hearing: 28 August 2006
Court: William Young P, Panckhurst and Ronald Young JJ Counsel: C J W Stevenson for Appellant
K J Beaton for Crown
Judgment: 13 September 2006 at 11am
JUDGMENT OF THE COURT
AThe appeal is allowed in part. The Crown is prohibited from calling evidence of the appellant's claim to have knocked out two men 10 days prior to victim's death.
BThe Crown is entitled to lead evidence that the appellant was imminently warned of the dangers of punching lay persons.
R V KINGI CA CA259/06 13 September 2006
REASONS OF THE COURT
(Given by Ronald Young J)
[1] This is an appeal from a pre-trial ruling of Wild J. The appellant faces a third trial for the manslaughter of his uncle. The Judge allowed the Crown to call evidence of an alleged assault by the appellant ten days before the events which gave rise to the charge of manslaughter. The appellant says the evidence is propensity evidence of little probative value, which may occasion significant prejudice to the appellant, and the Judge was thereby wrong to admit the evidence.
Background
[2] In late 2003 and early 2004 a dispute arose within the Kingi family regarding the possession and use of a bull. On the evening of 6 January 2004 the victim’s brother, Rango, took his two sons, (the appellant and Damien), and a farm worker to visit the victim Rangi Kingi. There was an argument between several members of the family. The Crown case is that the appellant intervened in the argument, advanced on his Uncle, Rangi, and eventually punched him with his left fist to the right side of his jaw. The Crown say Rangi was propelled backwards striking his head on the concrete floor causing injuries from which he eventually died.
[3] This Court heard and allowed an appeal from the summing up of the Judge at the first trial (see R v Kingi CA122/05 10 August 2005). The jury at the second trial, in April 2006, was unable to reach a verdict. During the course of the second trial in April 2006 the Crown advised the trial Judge, Wild J, that they wished to call additional evidence from Mr Selwyn Jones who had been the appellant’s trainer. The circumstances by which the evidence came to the Crown’s attention and the essence of the subject matter was summarised by the Crown before the trial Judge as follows:
2.In the course of briefing Mr Jones on 3rd of April 2006 he disclosed to Detective Sergeant Brown a conversation he had with the Accused shortly before the Accused punched the Deceased. This was duly recorded in a further signed statement and provided to defence counsel and the Court.
3.The conversation took place on 27th December 2003, 10 days before the Accused punched the Deceased, resulting in his death. As Mr Jones was training the Accused, the Accused disclosed his left hand felt a little bit uncomfortable because he had a fight in the early hours of that morning.
4.The Accused said some people from the night club down the road came past his house regularly and he and his wife could hear loud noise from their bedroom that sounded like a man and woman having a fight. The Accused went outside and asked what was going on. When a man walked over to him he punched him with a left hook, knocking him out. The man’s friend approached the Accused. He then hit him with a left hook, knocking him out.
5.The Accused told his trainer he had used the technique exactly as Mr Jones had trained him. Mr Jones said to him, you can’t punch people because you are now a K1 fighter, its too dangerous. People who are untrained in professional fighting are not conditioned to absorb or handle punches coming from a professionally trained person.
[4] The Judge heard initial submissions from counsel as to the admissibility of this evidence. He gave the appellant’s counsel, who was taken by surprise by this additional brief, time to consider the proposed evidence. The next day, after hearing counsel for the appellant’s objection to the admissibility of the evidence, the Judge allowed the Crown to call Mr Jones’ evidence in full. The evidence given by Mr Jones at trial was essentially the same as had been anticipated in the brief of evidence supplied to the Judge beforehand.
[5] The appellant gave evidence at the trial. He said he had acted in self-defence when the deceased had aggressively approached him. He said he saw a quick movement by the deceased and he punched the deceased once with his left hand on his right jaw. The appellant denied that he had a confrontation with two men just prior to his uncle’s death and denied the conversation which Mr Jones alleged they had.
[6] The jury was unable to reach a verdict. A retrial was ordered. Subsequently, the Crown applied pursuant to s 344A Crimes Act 1962 for a ruling on the admissibility of the proposed evidence of Mr Jones relating to his conversation with the appellant, given the appellant’s continued opposition to its admissibility. Wild J
again ruled the evidence admissible on the same grounds as his ruling during the second trial. It is from this ruling that Mr Kingi now appeals.
The decision in the High Court
[7] The Judge concluded that the probative value of the evidence from Mr Jones far outweighed its prejudicial effect. He considered that one of the issues at trial was the appellant’s appreciation, at the time of his offending, of his physical abilities. The Judge concluded that an incident just 10 days before the death of Rangi which illustrated the appellant’s “punching ability and its likely consequences on a person who was not also a trained professional fighter” was therefore relevantly focused and timely evidence. The Judge said that because the “‘situational’ position” between the alleged facts of the manslaughter and the alleged incident 10 days earlier was so similar the evidence was “sufficiently focused and specific to meet the high threshold for admissibility”.
[8] Wild J considered that the evidence proposed to be called went to the two issues at the heart of the case. Firstly, he considered the evidence was relevant to the threat the appellant believed he faced from the deceased. The Judge asked, given the appellant had, 10 days before, knocked out two persons, each with a single left hook, what threat did the appellant believe he was facing from the deceased given their respective size?
[9] Secondly, the Judge said the evidence that the appellant knocked two men unconscious with one punch to each and was warned by his trainer subsequently of the dangers of punching lay people, was relevant to the reasonableness of the force used.
Counsel’s submissions
[10] The appellant submits (following Wild J’s analysis) that the evidence is not relevant to any threat the appellant believed he faced from the deceased. The appellant says that his belief of the threat he faced was based on what he knew of his
uncle and what Rangi did immediately before he struck him. Counsel submits that the appellant’s knowledge of his own capabilities is therefore irrelevant in assessing what the appellant believed the circumstances were that night.
[11] Secondly, the appellant accepts that there may be some limited probative value to the evidence of Mr Jones when considering the reasonableness of the force use. However, this must be tempered by the fact that the appellant’s reaction to the perceived threat was instantaneous and at this point the jury would already have concluded the appellant was acting in his own defence. The appellant says this modest probative value is therefore outweighed by the prejudice the appellant will suffer if the evidence is admitted.
[12] The appellant identified prejudice from this evidence as including:
(a) the likelihood the jury will see the appellant as “bad” and therefore more likely to be guilty;
(b) the jury having heard this evidence will be less likely to conscientiously determine his guilt or lack of it in this case; and
(c) the jury may become distracted and concentrate too much on whether the incident with the two men had in fact occurred.
[13] The Crown says the evidence from Mr Jones is probative to:
(a) the appellant’s knowledge of his physical abilities and the effect of a punch on untrained persons;
(b) whether the appellant was acting defensively when he struck the deceased; and
(c) whether the force used was reasonable in the circumstances as the appellant believed them to be;
and therefore the probative value outweighs any prejudice to the appellant.
Propensity evidence
[14] Evidence of general criminal propensity is typically inadmissible in a criminal trial. However, such evidence may be exceptionally admitted:
where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.
(See R v B (CR) [1990] 1 SCR 717 at 732; adopted in New Zealand in R v Taunoa
CA494/04 13 April 2005; and R v Napia CA477/04 16 March 2006.
Discussion
[15] We consider the Judge should not have allowed Mr Jones to give evidence of the appellant’s report of his assault on these two men. We consider this aspect of Mr Jones’ evidence is illegitimate propensity evidence.
[16] As to the appellant’s perception of the threat he faced, evidence of the appellant’s fighting capability, along with the victim’s actions and the appellant’s knowledge of the victim, can be relevant in assessing the appellant’s actual perception of risk. For example, the Crown should be able to challenge an assertion by the appellant that he feared his 60 year old, physically smaller uncle, by putting to him that he is an experienced professional fighter who could easily defend himself against his uncle. However, it is not necessary for the Crown to make this point by calling evidence of the other confrontation. Evidence of the appellant’s occupation and training as a fighter achieves the same (legitimate) end desired by the Crown with none of the prejudice inherent in the description of the alleged attack on the two men.
[17] Similarly, with the issue of reasonableness of the force used. The Crown can establish the appellant’s record and punching power from questions to Mr Jones, the appellant’s trainer, without the need to ask him about the other incident. We see no objection to the Crown leading evidence from Mr Jones regarding the warning he gave the appellant in relation to the inappropriate use of force against lay people.
That evidence is part of the evidence properly given by his trainer which establishes the appellant’s relevant background. If Mr Jones’ evidence is believed then the appellant had been warned of the dangers of punching a lay person. This evidence is relevant to the jury’s assessment of the reasonableness of the force actually used. We see no reason, however, why, in giving evidence about the warning, Mr Jones needs to give evidence about the incident involving the two men. It may be, in any event, the appellant accepts the proposition that either he had been told or he knew that, given his physique and training, it was “dangerous” for him to punch lay people, as Mr Jones asserts.
[18] We consider the evidence regarding the attack on the two men is highly prejudicial to the appellant’s case without any sufficient corresponding probative value. As we have said, the Crown are entitled to establish the appellant’s background including his fighting ability and power through witnesses including his trainer. This gives a relevant context to self-defence. It is evidence relevant to all three aspects of self-defence; whether the appellant was acting to defend himself; what were the circumstances as he believed them to be; and whether the force used was objectively reasonable given those circumstances. The evidence of the prior assaults, however, adds little more than prejudice and invites the jury to conclude that, because the appellant has on previous occasions without warning punched and knocked unconscious two men, he is more likely to have illegitimately done so on this occasion.
[19] We therefore allow the appeal in part. The Crown may not call any evidence from Mr Jones of his conversation with the appellant regarding the appellant’s claim to have knocked out two men 10 days prior to his uncle’s death. The Crown are entitled to lead from Mr Jones his claim that he imminently warned Mr Kingi of the dangers of punching lay persons.
Solicitors:
Crown Law Office, Wellington
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