R v Liev - [2017] NZHC 830

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 AUCKLAND REGISTRY

CRI-2016-092-5315 [2017] NZHC 830

THE QUEEN

v

SENG LEK LIEV SODARITH SAO

APHICHART KORHOMKLANG LUIGI HAVEA
MASI VAIFALE JOSEPH BENJAMIN HAURUA TEVITA MATANGI FANGUPO

Hearing: 26 April 2017

Appearances:

G Kayes and H Benson-Pope for Crown
M W Ryan for S L Liev
H B Leabourn on behalf of L Cordwell for S Sao
H B Leabourn for A Korhomklang
A Y Young on behalf of M Kan for L Havea
J Munro and D Niven for M Vaifale
M S Gibson for J B Haurua
D M M Dickinson and S R Lack for T M Fangupo

Judgment:

28 April 2017

JUDGMENT OF PALMER J [HEARSAY AND PHOTOGRAPH EVIDENCE]

This judgment is delivered by me on 28 April 2017 at 4.15 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar

R v LIEV & ORS [2017] NZHC 830 [28 April 2017]

Summary

[1] The defendants face trial commencing 1 May 2017 for manslaughter and/or kidnapping. The Crown has given notice it intends to rely on hearsay evidence in text messages. Three defendants oppose the admissibility of texts on the basis the Crown does not have reasonable evidence showing they are part of the conspiracy. In this preliminary ruling, on the basis of the information currently before me, I do not agree. I do not rule the texts inadmissible.

[2] Several defendants also object to the admissibility of certain photographs. I rule, on the basis of the information before me, the photographs are relevant and have probative value. Their probative value is not outweighed by the risk of an unfairly prejudicial effect on the proceeding. The photographs are admissible.

The trial

[3] The Crown’s case is that some of the defendants engaged other defendants who were members of the “Ghost Unit”, an element of the Head Hunters gang. It says the group was engaged, in that capacity, as hired muscle to kidnap the victim, Ms Pruitsiriporn. It says they attempted to do so on 14 and 15 February 2016 and succeeded in doing so on 29 February and 1 March 2016. The Crown says Ms Prutsiriporn died from injuries she sustained from assaults while detained and from trying to escape her kidnappers by climbing out of the boot of a moving car on 1 March
2016.

[4] Eleven defendants were charged with the kidnapping of Ms Prutsiriporn and six were charged with her manslaughter:

(a) Mr Liev, Mr Korhomklang, and Mr Luigi Havea were charged with manslaughter and kidnapping and face both charges at trial.

(b)Mr Haurua and Mr Vaifale have pleaded guilty to kidnapping and Mr Sao intends to do so at the commencement of trial. They were also charged with manslaughter and will…

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 Liev

Details

AGLC: R v Liev [2017] NZHC 830
Case: [2017] NZHC 830
Decision Date: 28 April 2017

CaseChat Overview and Summary

The defendants face trial for manslaughter and/or kidnapping. The Crown intends to rely on hearsay evidence in text messages and photographs. Three defendants object to the admissibility of text messages on the basis the Crown does not have reasonable evidence they were part of the conspiracy. Several defendants object to the admissibility of certain photographs. The court found that the text messages were admissible under section 22A of the Evidence Act 2006 as there was reasonable evidence of a conspiracy or joint enterprise, the defendants were a member of the conspiracy, and the hearsay statement was made in furtherance of the conspiracy or joint enterprise. The court also found that the photographs were relevant and had probative value. Their probative value was not outweighed by the risk of an unfairly prejudicial effect on the proceeding. The photographs were admissible. The court also ruled that the evidence would be heard by a jury.

Orders