R v Phillips - [2020] NZHC 2884

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-027-1253

[2020] NZHC 2884

THE QUEEN

v

KIRIHI BOB PHILLIPS

Hearing: 2-3 November 2020

Appearances:

M B Smith and T Needham for Crown

W McKean and S Plaistead for Defendant

Verdicts:

3 November 2020

Reasons:

4 November 2020

REASONS FOR VERDICTS OF LANG J

This judgment was delivered by me on 4 November 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Whangarei

R v PHILLIPS [2020] NZHC 2884 [3 November 2020]

[1] Mr Phillips faces charges of burglary1 and indecent assault.2 He elected trial by Judge alone. For the reasons that follow I found Mr Phillips not guilty at the conclusion of the trial on the burglary charge and guilty on the charge of indecent assault.

Onus and standard of proof

[2] Mr Phillips faces criminal charges. The Crown therefore bears the onus of proving each element of each charge beyond reasonable doubt. This is a high standard and will only be met if, after careful and impartial consideration of all the evidence, I am sure of his guilt. It is not sufficient for the Crown to prove that Mr Phillips is probably guilty or even very likely guilty.

[3] Furthermore, Mr Phillips enjoys the presumption of innocence. This means he is presumed innocent unless and until the Crown has proved guilt beyond reasonable doubt. As a result, he bears no onus to give evidence or prove anything to answer either of the charges. He elected to give evidence but in doing so assumed no onus to prove anything at all. He also underwent a reasonably lengthy videotaped interview with the police on 21 October 2019 in which he gave his version of events. He confirmed when he gave evidence at trial that everything he said during the interview was the truth. This forms part of the overall pool of evidence from which I am required to determine whether the Crown has proved either of the charges beyond reasonable doubt.

Undisputed evidence

[4] Much of the evidence is not in dispute. I therefore set it out by way of background before considering whether the Crown has proved the individual elements of the charges beyond reasonable doubt.

[5] The charges were laid as a result of an incident that occurred in the early hours of 21 October 2019. On the afternoon of the previous day Mr Phillips and his cousin, Mr Jim-Adams Kopa, travelled to Paihia and decided to stay the night at a backpackers

1 Crimes Act 1961, s 231(1)(a).
2 Section 135.

hostel or lodge. The complainant, a 27 year old female tourist from Germany, was staying at the same hostel that night. She was sharing a bunk room with two other female German tourists who had met on the journey to New Zealand and decided to travel around New Zealand together. Mr Phillips and his cousin were staying in a…

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 Phillips

Details

AGLC: R v Phillips [2020] NZHC 2884
Case: [2020] NZHC 2884
Decision Date: 4 November 2020

CaseChat Overview and Summary

The case of R v Phillips involved Kirihi Bob Phillips, who was charged with burglary and indecent assault. Phillips elected to be tried by a judge alone. The incidents occurred in the early hours of 21 October 2019, at a hostel in Paihia, where the complainant, a 27-year-old German tourist, was staying. Phillips, along with his cousin, had been socialising with the complainant and her roommates the evening before. The complainant had gone to sleep, and when Phillips entered her room, the incident ensued. The legal issues the court had to decide included whether Phillips had the requisite intent to commit an imprisonable offence when he entered the room and whether the touching was indecent and done with intent.

The court found Phillips not guilty of burglary as it could not be proven beyond reasonable doubt that he intended to commit an imprisonable offence. It was clear that Phillips entered the room to ask the complainant for sex, but the court could not be sure if he intended to indecently assault her. On the charge of indecent assault, the court found Phillips guilty. The court accepted the complainant's evidence that Phillips touched her on three occasions, despite some discrepancies in her account. The court found Phillips intended the touching to be indecent based on the nature of the touching, the circumstances, and his previous propensity for similar behaviour. The court concluded Phillips appreciated the aspects of the assault that made it indecent and entered a verdict of guilty on the indecent assault charge.

Orders