R v Thompson
[2025] NZHC 538
•17 March 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-043-1144
[2025] NZHC 538
THE KING v
RAKAI JACOB THOMPSON
Hearing: 13 March 2025 Appearances:
J E Bourke for Crown
N P Bourke for Defendant
Judgment:
17 March 2025
JUDGMENT OF CHURCHMAN J
[Mode of evidence]
Introduction
[1] The defendant faces a charge of murder.1 A two-week trial has been scheduled to start on 24 November 2025 in the New Plymouth High Court. This pre-trial hearing addressed the applications by the Crown regarding the mode for witnesses to give evidence. The pre-trial hearing also addressed a hearsay application by the Crown and issues of disclosure.
1 Crimes Act 1961, s 172(2) — maximum penalty of life imprisonment.
R v THOMPSON [2025] NZHC 538 [17 March 2025]
Mode of evidence
[2] The Crown has applied for orders under s 103 of the Evidence Act 2006 that the following witnesses give their evidence from within the courtroom, but with the use of screens meaning that they are unable to see the defendant:
(a)Don Akariri-Buckley.
(b)Donna Akariri.
[3] The application is made under ss 11, 103(1) and 105(1) of the Evidence Act and s 101(1) and (2) of the Criminal Procedure Act 2011. The defendant opposes the application.
Background
[4] On 30 July 2024, the defendant and victim were involved in a confrontation at the victim’s address. When the defendant arrived home, he told the victim’s brother, by way of text message, to collect a motorbike that was kept in the defendant’s shed.
[5] At 12:45 am, the victim and his brother arrived at the defendant’s address. The defendant and the victim got into an altercation. The defendant then used a 25 cm boning knife to stab the victim three times to his upper body. As a result of the stab wounds, the victim died. The two witnesses whose evidence is subject to the mode of evidence application are, respectively, the brother and mother of the victim.
Submissions
Crown’s submissions
[6] In relation to Mr Akiriri-Buckley, the Crown seeks the orders on the following grounds:
(a)The trauma suffered by the witness. The Crown submits that the experience of Mr Akiriri-Buckley losing his brother is an obvious trauma.
(b)The nature of the evidence that the witness is expected to give. The Crown submits that Mr Akiriri-Buckley is expected to give evidence about watching his brother be stabbed and essentially, die in front of him.
(c)The relationship of the witness to any party to the proceeding. The Crown submits that Mr Akiriri-Buckley was close to his brother.
(d)Other grounds likely to promote the purpose of the Evidence Act 2006:
(i)The need to ensure the fairness of the proceeding.
(ii)The need to ensure there is a fair trial.
(iii)The views of the witness. The Crown notes that Mr Akiriri- Buckley would like to be screened to avoid having to look at the defendant while Mr Akiriri-Buckley is giving evidence. The Crown submits that Mr Akiriri-Buckley would like to concentrate on questions that he is asked and not to be distracted by the defendant’s face.
(iv)The need to minimise the stress of the witness. The Crown refers to a jobsheet from Detective Senior Sergeant Drewery, dated 4 March 2025, that notes Mr Akiriri-Buckley was very nervous and confused about the court process, feels guilty for involving his brother on the night of the incident and would prefer not to go to court at all. The jobsheet noted that Mr Akiriri-Buckley did not like public speaking, particularly as he has an issue with his hearing and is nervous about misunderstanding questions.
In relation to Ms Akiriri, the Crown seeks the orders on the following grounds:
(a)The trauma suffered by the witness. The Crown submits that the experience of Mr Akiriri-Buckley losing her son is an obvious trauma.
(b)The nature of the evidence that the witness is expected to give. The Crown submits that she is expected to give evidence about the night of the incident, including her interactions with the deceased and attending the scene and hospital after the stabbing.
(c)The relationship of the witness to any party to the proceeding. The Crown submits that the family of the deceased were close to the defendant and his family, including Ms Akiriri.
(d)Other grounds likely to promote the purpose of the Evidence Act 2006:
(i)The need to ensure the fairness of the proceeding.
(ii)The need to ensure there is a fair trial.
(iii)The views of the witness and the need to minimise the stress of the witness. The Crown refers to a jobsheet from Detective Senior Sergeant Drewery, dated 4 March 2025, that noted Ms Akiriri does not feel comfortable facing the defendant in open court.
[8] The Crown emphasises that the defendant will be able to see the witnesses via the CCTV screen set-up in Court. The Crown notes that the jury will be given appropriate directions about the use of the screens and that the jury are not to read anything into the use of screens. As a result, the Crown submits that screens would enable the witnesses to give their evidence in a way that promotes their recovery, without unfairly prejudicing the defendant.
[9] The Crown submits that more than one ground under s 103(3) of the Evidence Act is stablished and orders under s 105(1)(a)(i) are appropriate.
Defendant’s submissions
[10] Counsel submits that the applications should be declined to ensure fairness in the proceedings. The defendant does not dispute that both witnesses have suffered
trauma at the loss of their son and brother. However, counsel submits that the trauma on its own is insufficient to warrant the use of screens.
[11] Counsel submits that Mr Akiriri-Buckley’s guilt and preference not to attend court are “understandable but cannot be determinative”. Counsel refers to judgments of this Court, R v Mokomoko and R v K, which note, “the standard prospective stress of giving evidence is not of itself a sufficient reason to depart from the ordinary [way]”.2 Counsel also submits that s 103(3)(c) is concerned with trauma suffered by virtue of the events about which the witness is to give evidence, rather than any trauma to be caused by the act of giving evidence.
[12] Counsel further submits that Mr Akiriri- Buckley’s potential confusion at court processes will be mitigated by various factors. These factors include the presence of “two able and experienced prosecutors”, the availability of victim support, the Officer-in-Charge and the Court Victim Advisor service. Counsel has expressed optimism that either Victim Support, the Crown or Police will ensure Mr Akiriri-Buckley’s broken hearing-aid may be working by the time of the High Court trial.
[13] Counsel accepts that there is a level of stress inherent in giving evidence, but this is not a situation where screens are sought for a victim of offending, such as the complainant in a sexual or family violence trial. Counsel highlights that the defendant is not inherently intimidating, nor has he acted in an improper manner at his prior appearances. Counsel refers to the karakia that the whānau of the deceased performed at earlier court performances. Counsel submits that screens are unnecessary because the karakia demonstrates the dignity and strength which the witnesses possess.
[14] Counsel highlights that Ms Akiriri was not present during the incident that led to the deceased’s death and thus, will not be giving evidence on the cause of his death. Counsel doubts that Ms Akiriri will suffer harm from giving evidence of her attendance at the hospital.
2 R v Mokomoko [2012] NZHC 3565 at [10]; and R v K [2012] NZHC 1468 at [32].
Relevant law
[15] Under s 103 of the Evidence Act, the Court may direct that a witness is to give evidence-in-chief and be cross-examined in the ordinary way or in an alternative way as provided in s 105. The Court may do so on any of the grounds listed in s 103(3). The grounds in s 103(3) include, relevantly, the trauma suffered by the witness,3 the nature of the proceeding,4 the nature of the evidence the witness is expected to give,5 and any other ground likely to promote the purpose of the Act.6
[16] There is no presumption in favour of witnesses giving evidence in the ordinary way.7 There is also no onus or standard of proof to be met before the Court may permit a witness to give evidence in an alternative way.8 The Court of Appeal in R v O (CA433/2012) held:9
Section 103 allows a broad fact-specific inquiry. It appears to signal a distinctive shift in legislative policy to extend the scope for the mode of giving evidence by alternative means beyond the previous limitations to young and mentally impaired complainants in sexual cases. The provision vests a broad and unfettered discretion in the trial Judge once the jurisdiction to make an order is established. As this Court has previously observed, there is now no default position or presumption in favour of giving evidence in the ordinary way (footnotes omitted).
[17] The circumstances need not be extraordinary or exceptional before a direction can be made.10 Section 103(4) provides that the Court must have regard to:
(a)the need to ensure—
(i)the fairness of the proceeding; and
(ii)in a criminal proceeding, that there is a fair trial; and
(b)the views of the witness and—
(i)the need to minimise the stress on the witness; and
3 Evidence Act 2006, s 103(3)(c).
4 Section 103(3)(f).
5 Section 103(3)(g).
6 Section 103(3)(j).
7 V (CA492/2010) v R [2011] NZCA 525 at [21], citing R v Shone [2008] NZCA 313 at [28]; and
see also R v Hulbert [2024] NZHC 119 at [19].
Section 105(1); and R v Hulbert, above n 7, at [20].
9 R v O (CA433/2012) [2012] NZCA 475 at [37].
10 R v Iongi (No 7) [2024] NZHC 170 at [12]; and also R v Falamoe [2022] NZHC 2710 at [69].
(ii)in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence; and
(c) any other factor that is relevant to the just determination of the proceeding.
[18] The need to ensure fairness during the proceeding and that there is a fair trial,11 includes fairness to all parties, including the witnesses, complainants and defendants.12 In R v M (CA590/2009), the Court of Appeal cited with approval, the following comments of Williams J in R v Kahui:13
It remains to be said that in the determination to ensure our criminal trial process is as fair as possible, fairness to all accused should predominate since they, of course, have most to lose. But fairness to an accused is not the only criterion. The fairness of a criminal trial is fairness on all its bearings, including fairness to a complainant. The community, too, has a deep interest in trials being fair so that the guilt or innocence of those of crimes can be best assessed. That interest includes witnesses being able to give evidence in a manner which best presents the issues in a trial to the jury or judge.
Analysis
[19] It is important to note that an application under s 103 is made by a party to the proceedings, not by the witness. The views of the witness (where available) are a mandatory but not a determinative consideration. The question is whether the circumstances of this case mean a screen is appropriate to mitigate the trauma of Mr Akiriri-Buckley and Ms Akiriri to ensure they are best placed to give truthful and accurate evidence.
Mr Akiriri-Buckley
[20] In determining this issue, I must take into account the express purpose in the Evidence Act to promote fairness of the proceeding for both parties.14 The nature of the evidence that Mr Akiriri-Buckley is expected to give is first-hand evidence of the death of his brother who was fatally stabbed in front of him. Although there is no independent assessment as to the extent of trauma suffered by Mr Akiriri-Buckley, I
11 Section 103(4)(a)(i).
12 R v O (CA433/2012), above n 9, at [43], citing R v M (CA590/09) [2009] NZCA 455 at [40]; and see also Evidence Act, s 6(c).
13 R v M, above n 12, at [40], citing R v Kahui HC Auckland CRI 2006-057-1135, 10 July 2007 at [15].
14 Section 103(4)(a).
accept the Crown’s submissions that the witness has suffered significant trauma. If the only issue was Mr Akiriri-Buckley being stressed about giving evidence, that would not satisfy any of the factors set out in s 103(3) of the Evidence Act. However, the situation goes much further than that. Mr Akiriri is a witness to very traumatic events. As a result of the trauma, he is understandably stressed about having to give evidence without being screened from the defendant.
[21] As noted in the jobsheet of Detective Senior Sergeant Drewery and observations from Ms Akiriri, the witness feels immense guilt as to what occurred which has affected his sleeping and eating habits. Detective Senior Sergeant Drewery and Ms Akiriri have observed that Mr Akiriri-Buckley has had difficulty talking about the matter, even outside a court environment. Mr Akiriri-Buckley experienced a “meltdown” before the court orientation at the New Plymouth High Court on 18 February 2025 and could not proceed. Ms Akiriri organised for a colleague at Tui Ora (an organisation that provides services for mental and physical health) to assist Mr Akiriri-Buckley. Mr Akiriri-Buckley told the Detective Senior Sergeant that he had been “talking to a guy who has helped him a lot”.
[22] I accept the defendant’s reference to R v Mokomoko and R v K that the standard prospective stress of giving evidence is not itself a sufficient reason to depart from the ordinary ways. However, this Court in R v Mokomoko goes on to state that, “[s]omething more taking into account the s 103(3) grounds is required.”
[23] In R v K,15 Potter J declined the Crown’s application for the witness to give evidence by way of police video interviews. The witness in that case was 19 years old and the partner of the defendant — she was to give evidence in relation to severe injuries to her child. The Judge acknowledged that the Crown’s application was not a typical one under s 103 as the Crown made the application on the argument that the witness would be hostile. In the current case, Mr Akiriri-Buckley’s age is not a factor under s 103. It is not suggested that he will be hostile as a witness and the nature of the evidence he is giving relates to the death of his brother. I find that R v K therefore is distinguishable.
15 Above, n 2.
[24] I do not accept the defendant’s submission that screens may only be used for victims of offending, such as the complainant in a sexual or family violence trial. Section 103 gives the Court discretion in any proceeding to direct that a witness is to give evidence in an ordinary or alternative way.
[25] The desirability of minimising stress on the witness is a consideration under s 103(4)(b)(i). As noted in the jobsheet by Detective Senior Sergeant Drewery, Mr Akiriri-Buckley has had difficulty engaging in court orientation processes. Mr Akiriri-Buckley has expressed to Ms Akiriri and Detective Senior Sergeant Drewery that he did not feel as though he was “ready for court”. Although the view of Mr Akiriri-Buckley is not determinative to my assessment, Mr Akiriri-Buckley’s view that he would not be able to give the best evidence without the screens is important.
[26] I further note that Mr Akiriri-Buckley is a key Crown witness. It is, therefore, important that he is able to give evidence in the best circumstances as possible to provide the jury with truthful and accurate evidence. Counsel, on behalf of the defendant, has not established how the use of screens would adversely impact the fairness of the proceedings, with reference to the defendant’s ability to obtain a fair trial. Nor has counsel advanced other grounds likely to promote the purpose of the Act. I do not place weight on the defendant’s submission that screens are unnecessary because the whānau of the deceased was able to perform a karakia.
[27] Any potential risk to the fairness of proceedings may be mitigated by judicial directions to the jury under s 123 of the Evidence Act. Counsel advised that the defendant will be able to observe the two witnesses giving their evidence by way of a CCTV screen. Defence counsel will be able to directly see the witnesses give their evidence as will the jury. These two factors would promote fairness to both the parties and the witnesses.16
[28]I am satisfied that several grounds under s 103 exist including s 103(3)(c), (f),
(g) and (h). I grant the application of the Crown for Mr Akiriri-Buckley to give evidence in an alternative manner, being screened from the defendant.
16 Section 6(c).
Ms Akiriri
[29] The trauma suffered by Ms Akiriri is less graphic than that suffered by Mr Akiriri-Buckley. However, the circumstances of the death of her son will undoubtedly have caused trauma for Ms Akiriri. The defendant’s counsel acknowledged as much. I accept the defendant’s submissions that Ms Akiriri was not present during the incident that led to the deceased’s death and that she will not be giving evidence regarding the cause of death. However, she was present at the hospital to which the deceased was taken. The nature of the evidence that Ms Akiriri is expected to give is of seeing her son in hospital, unable to be revived from the effects of the stab wounds inflicted by the defendant. That must have been very traumatic for her.
[30] I consider the views of Ms Akiriri to be important, albeit not determinative. She has indicated that she would feel anxiety and “experience a real psychological upheaval to come face to face with the defendant because of what he had done to her son”. Detective Senior Sergeant Drewery noted in her jobsheet that Ms Akiriri did not “feel confident enough to face [the defendant] directly”.
[31] Although the application on behalf of Ms Akiriri is less compelling than that in respect of Mr Akiriri-Buckley, I find that s 103(3)(c), (f), (g) and (h) are engaged.
[32] The use of screens will not impact the fairness of the trial. I find that any potential risk to the fairness of proceedings may be mitigated by judicial directions to the jury under s 123 of the Evidence Act. Defence counsel and the jury will be able to see the witness as she gives evidence. The defendant will be able to observe her by CCTV. These factors ensure fairness to both the defendant and the witnesses.17
Conclusion
[33] I consider the combination of circumstances, for both Mr Akiriri-Buckley and Ms Akiriri, mean that being screened from the defendant while they give evidence is
17 Section 6(c).
appropriate to minimise the stress on them and to ensure they are best placed to give truthful and accurate evidence.
[34]The applications are granted.
Hearsay application
[35] The Crown has applied to lead certain hearsay evidence. The defendant does not oppose that application and it is granted in the terms sought.
[36] Disclosure by the Crown is ongoing with the Crown filing an updating memorandum shortly before the commencement of this hearing. Counsel are optimistic that outstanding disclosure issues can be resolved without further intervention of the Court however, they have asked that this matter be listed for a further call over in July.
[37] I request the Registrar to allocate a call-over date in July. Counsel are to file a joint memorandum, or, if that is not possible, separate memoranda, no later than five days prior to the call-over date confirming what matters are still outstanding and what each parties’ position is in respect of those matters.
Churchman J
Solicitors:
Crown Solicitor, New Plymouth for the Crown
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