The Queen v Check

[2009] NZCA 548

IN THE COURT OF APPEAL OF NEW ZEALAND

CA143/2009
[2009] NZCA 548

THE QUEEN

v

KARL UNUKA CHECK

Hearing:28 October 2009

Court:William Young  P, Robertson and Ellen France JJ

Counsel:G J King for Appellant

G J Burston, D R La Hood and J M Webber for Crown

Judgment:20 November 2009 at 3 pm 

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No.

Introduction  [1]

Background  [5]

The factual narrative  [13]

The conviction appeal  [35]

The hearsay evidence  [36]

The evidence in issue  [37]

Gendall J’s ruling  [39]

Submissions  [42]

Discussion  [44]

The voice identification evidence  [55]

The trial Judge’s approach  [59]

Submissions on voice identification  [61]

Discussion  [65]

The mode of evidence  [74]

The relevant evidence  [75]

The Judge’s ruling  [76]

Submissions  [80]

Discussion  [82]

The sentence appeal  [91]

Disposition  [98]

Introduction

[1]        The appellant was convicted after trial of assault and of the murder on 5 May 2007 of two‑year old Jhia Te Tua.  He had earlier pleaded guilty to participation in an organised criminal group.  He was sentenced on 20 February 2009 by Gendall J, the trial judge, to life imprisonment with a minimum period of imprisonment of 15 years: HC WN CRI-2007-083-001608.

[2]        He appeals against his conviction for murder and against the length of the minimum period of imprisonment imposed.

[3]        On the conviction appeal the appellant says there has been a miscarriage of justice because of:

(a)          The admission of hearsay evidence;

(b)         The admission of voice identification evidence; and

(c)The giving of evidence by a key witness by closed circuit television (“CCTV”).

[4]        The sentence appeal is based on the submission that, by comparison with one of the other co-offenders, Ranji Forbes, the appropriate minimum period was 12 and a half years, not 15.

Background

[5]        The events leading to the death of Jhia Te Tua have their background in the escalating tension between the Mongrel Mob and Black Power gangs and other gangs in Wanganui during late 2006 and 2007.  As Gendall J said at [5] in his sentencing remarks, each gang “somehow adopted the stance that its members and leadership had some form of territorial ownership or control over the community or aspects of it”.

[6]        The Crown case against the appellant, a member of the Mongrel Mob gang, was that he was the organiser of a drive-by shooting directed at the house of Joshua Te Tua, Jhia’s father.  Mr Te Tua was a member of the Black Power gang.  The Crown said the appellant directed his “prospect”, Hayden Wallace, to shoot at the Black Power members.  The shooting was carried out as an act of revenge following earlier conflict which included an attack on the appellant’s vehicle by Mr Te Tua and his associates.  That attack took place on the street outside Mr Te Tua’s house.

[7]        The Crown said that the appellant and others returned to the Te Tua house in a convoy of vehicles some time after they had been attacked.  Shots were fired from a rifle at Black Power members at the front of the property.  One of these shots entered the house and killed Jhia as she slept.

[8]        The appellant’s defence was that Mr Wallace, the man who fired the shots, took it upon himself to use the gun and the appellant knew nothing about the gun or its intended use until afterwards.  His case was that he went to the Te Tua house for a fight but nothing more.

[9]        Also convicted of murder after the trial before Gendall J were:

(a)Hayden Wallace, who fired the shot.  Mr Wallace was sentenced to life imprisonment with a minimum period of imprisonment of 15 years;

(b)Ranji Forbes, the driver of the vehicle from which Mr Wallace fired the shot.  Mr Forbes was sentenced to life imprisonment with a minimum period of imprisonment of 12 and a half years.

[10]       The following people pleaded guilty to manslaughter:

(a)James Challis, who was a passenger in the vehicle driven by Mr Forbes.  Mr Challis entered his guilty plea at depositions.  His sentence of seven years imprisonment with a minimum period of imprisonment of four years was upheld by this Court: R v Challis and Box [2008] NZCA 470;

(b)Tyrone Box, who was also in the vehicle driven by Mr Forbes.  Mr Box entered his plea at depositions.  His sentence of seven years imprisonment with a minimum period of imprisonment of four years was upheld by this Court;

(c)Godfrey “Ark” Muraahi, who was travelling in the third of the cars involved in the shooting.  His plea was entered after Mr Wallace had given evidence at trial.  The sentence imposed was 10 and a half  years imprisonment with a minimum period of imprisonment of six years; and

(d) Erueti “Eru” Nahona, who, like Mr Muraahi, was in the third of the cars.  Mr Nahona entered his plea after the Crown closing address.  His sentence was 10 years three months imprisonment with a minimum period of imprisonment of six years.

[11]       A number of others pleaded guilty to participation in an organised criminal group.  Richard Puohotaua (a passenger in the third car) was acquitted of murder and manslaughter at trial but convicted of participation in an organised criminal group. 

[12]       For completeness we note that the appellant had earlier pleaded guilty to murder but was granted leave to vacate that plea:  R v Check HC WN CRI 2007-083-001608 9 June 2008 (Ronald Young J).

The factual narrative

[13]       On 5 May 2007 the appellant, Ark Muraahi and Eru Nahona accompanied at least by Hayden Wallace became involved in a confrontation with some Black Power members at a rugby league game in Wanganui.  The evidence was that the appellant, who was wearing his Mongrel Mob patch at the game, got into his Nissan Safari truck and chased Mr Te Tua and another Black Power member, Rawhiri Hosay, around the grounds of a school near the rugby league ground.  The Crown’s case was that this was the beginning of the escalation of violent behaviour that day for which the appellant was responsible. 

[14]       The hearsay statements of Patrick Williams to which we will return fit into the narrative at this point.  Mr Williams knew the appellant but he said that he was not part of the gang lifestyle.  Mr Williams described events at the appellant’s house and then at the Mongrel Mob “pad” shortly after the league game.  Essentially, Mr Williams said that Hayden Wallace, the appellant’s prospect, was being aggressive to Mr Williams but backed down when Mr Williams challenged him.  Mr Williams said that Karl Check then beat up Mr Wallace. 

[15]       After these events the evidence was that the appellant, Mr Wallace, Mr Muraahi and Mr Nahona drove to Castlecliff in the appellant’s truck.  The Crown case was that they were seeking trouble and looking to continue the conflict that had taken place at the league game. 

[16]       The evidence was that the appellant and the others pulled up outside a house on Puriri Street, Castlecliff, not far away from the Te Tua house (173 Puriri Street) at which the drive-by shooting took place.  Mr Nahona got out of the vehicle and asked where the “niggers” (a term used to describe members of the Black Power) were.  An occupant of that house rang the Te Tua house to let them know what had happened.  As a result of this phone call there was a gathering of Black Power members at 173 Puriri Street. 

[17]       At around 8 pm, the appellant was involved in an assault at Akatea Street in Castlecliff.  The evidence was that several Mongrel Mob members forced themselves into the house and attacked a person thought to be a Black Power member.  This incident gave rise to the assault charge against the appellant.

[18]       The appellant and his associates then went to the nearby Castlecliff Hotel, known as the “Pig Pen”.  They drank alcohol and smoked cannabis.

[19]       The evidence from one of the anonymous witnesses, P132, was that at the Pig Pen the appellant was in an angry and frustrated mood.  The Crown witness, Shane Roberts, who was another of the appellant’s prospects said that the appellant told him he had smashed over someone who had opened the door at Akatea Street wearing a blue scarf.  Another witness described the appellant as behaving aggressively and that he said outside the Pig Pen that “I need to go to a party, I want to go and beat someone up, kill him, punch him”. 

[20]       The appellant and Mr Wallace and a number of others then left the Pig Pen.  They were in a convoy of three vehicles: the appellant’s Nissan Safari truck, Ranji Forbes’ grey Mitsubishi Galant and Richard Puohotaua’s white Ford Falcon. 

[21]       They drove along Puriri Street and passed 173 Puriri Street where Mr Te Tua and his Black Power associates were waiting.  As they drove past they were subject to an attack by numerous Black Power members and associates.  Bricks, bottles and metal bars were used to attack the cars.  A brick smashed the windscreen of the appellant’s truck and lodged in the windscreen directly in front him. 

[22]       At this point, Shane Roberts was driving the appellant’s vehicle.  Hayden Wallace was sitting in the back.  The evidence of Mr Roberts was that Hayden Wallace said he would make the Black Power pay.  The appellant then smashed his fists onto the dashboard and told Mr Wallace “not to preach something that he couldn’t do”. 

[23]       From Puriri Street, Mr Roberts drove the appellant and Mr Wallace to Hackett Street.  The Crown case was that this was where the organised criminal group formed and the plan to carry out a drive-by shooting was formulated.  At this point, a vehicle owned and driven by Noel Broughton arrived at Hackett Street.  Mr Broughton was also prospecting for the appellant.  Mr Broughton’s vehicle, a Nissan Primera sedan, was the one in which the appellant rode during the drive-by shooting.  The Crown case was that the appellant having had his own vehicle damaged got his prospect Mr Broughton and his car as a replacement. 

[24]       The evidence of the Crown witness, Wiremu Karamaina, was that he was sitting in Mr Forbes’ Mitsubishi when the appellant approached it and gave the order, through the driver’s window, to Mr Wallace who was sitting in the passenger’s seat to “shoot them in the head”.  Mr Karamaina had met Karl Check through rugby league.  He knew Hayden Wallace and others involved in the shooting. 

[25]       Mr Roberts said that when Mr Forbes drove off in his Mitsubishi he saw the appellant standing in the middle of the road.  The Crown closed its case on the basis that in the middle of the road is exactly where one would have expected the appellant to have been standing if he had just been giving the order to Mr Wallace through the driver’s window of the Mitsubishi. 

[26]       There is no evidence of any weapons being taken in the convoy to Puriri Street other than the .303 rifle used in the shooting.  The evidence of Mr Roberts was that on the way to the shooting he said “... we’re going back over there and we haven’t got any weapons”.  He said that Mr Muraahi said from the rear of the vehicle “Nah don’t worry about it, the lead car will do it, Hayden will do it”.  In cross-examination by counsel for Mr Muraahi, he accepted he could not be sure who had said this but that it was one of the back seat passengers.

[27]       As the convoy proceeded across Wanganui, it stopped at an address close to the Gonville TAB approximately 300 metres from the location at which the attack was to occur.  Gendall J took the view that this was likely to have been a pre‑arranged place: at [15] of the sentencing remarks.  There was evidence that the appellant got out of his motor vehicle and approached a car in which Messrs Muraahi and Nahona were seated.  After the final re-grouping of the cars near that TAB, they proceeded to the Castlecliff area and from a point of about one hundred metres from Mr Te Tua’s home Hayden Wallace prepared the weapon so as to be able to fire it.

[28]       What happened next is described by Gendall J in his sentencing remarks at [16] as follows:

As the convoy travelled down Puriri Street and close to the home of the Black Power member, the lead car turned off its headlights and engine and coasted towards its intended target.  Whilst still moving and approaching the target, Mr Wallace discharged the .303 rifle with a shot that went through a fence and into a neighbouring property.  Fortuitously, no one was struck with that bullet.  Thereafter, Ranji Forbes stopped the car and Hayden Wallace discharged two further rounds from the rifle at members of the Black Power who were outside the home and gathered on the front lawn metres from where the shots were fired awaiting the anticipated enemies.  Both shots missed those persons, one lodging in a fence post in a driveway of the property of a Black Power member.  Another penetrated a wooden pallet, then the front window of the home and a sofa upon which the infant Jhia Te Tua ... was sleeping, passed completely through her chest killing her instantly.

[29]       After the shooting, the evidence of Mr Roberts was that when he arrived back at the Mongrel Mob pad the appellant was already there.  He was on the couch receiving a “bit of a growling” from his mother who was more or less “sort of” yelling at him. 

[30]       Mr Roberts also said that when Hayden Wallace arrived back at the pad the appellant was standing out on the balcony.  He was giving Hayden Wallace the “big sign” meaning the Mongrel Mob sign.  Mr Wallace walked up to him saying, “Did you see me?  Did you see me?”

[31]       It is at this part of the narrative that the disputed evidence of Mr Roberts, the voice identification evidence, fits in.  Mr Roberts’ evidence was that he had been inside the pad with the appellant and others but had walked outside.  He then heard the appellant saying to Mr Wallace, “Did you get one?”  There was no reply and then he heard the appellant say, “Did we get one?”

[32]       Other evidence of what occurred at the Mongrel Mob pad supported the Crown case that the appellant had control over Hayden Wallace, his prospect.  The evidence of Shane Roberts was that when the appellant was asked by his partner’s brother why no one was minding his house, he replied “Take Hayden over there”.  Hayden Wallace was then taken over to the house by the appellant’s partner’s brother.

[33]       Further evidence of Mr Roberts was that the appellant’s father, Royden Check, was heard to say to the appellant “You ... did it.  You should have used your head”.  The appellant’s response was “They’re bad, they’re, I hate those ... niggers, they’ve been beating me up all my life”.  It was the appellant who summoned Hayden Wallace to come and see him the day after the shooting.  The appellant suggested that Mr Wallace should receive his patch for the “time” he would do if he handed himself in.  It was the appellant who Mr Wallace was with when he presented himself at the police station on 10 May 2007.

[34]       Mr Wallace gave evidence at trial.  He said he was not in the convoy and was not involved in the shooting.  He was cross-examined on a prior statement (made on oath for the purposes of his application to vacate his guilty plea) to the effect that he had been asked to use the gun but refused.  He had said he was not told or given an order he was just asked to use the gun.  Mr Wallace in cross-examination said that this occurred not on the day of the shooting, but on the following day, when he had visited the house where the gun had been left and had been asked by the occupant “I’ve got a gun here, do you want to use it?”

The conviction appeal

[35]       We deal with each of the three grounds of appeal in turn.

The hearsay evidence

[36]       The challenged hearsay evidence consists of three statements made to the police by Patrick Williams during May 2007.  (There was another statement but it was not in evidence at trial because it was not relevant.)  Mr Williams died before depositions. 

The evidence in issue

[37]       Mr Williams’ third statement was to the effect that after the league game on 5 May he went to the appellant’s house and then to the Mongrel Mob pad which is close by.  There was something of a confrontation between Mr Williams and Hayden Wallace.  Mr Williams said Hayden Wallace was behaving aggressively towards him.  Mr Williams challenged Mr Wallace and Mr Wallace backed down.  This was in the presence of the appellant and other Mongrel Mob members.  Mr Williams says that the appellant then beat up Mr Wallace.  The Crown used this evidence to show that Hayden Wallace had lost face and was eager to redeem himself in the appellant’s eyes.

[38]       The first two of Mr Williams’ four statements were incomplete and unsigned until the making of the third statement.  When the third statement was made Mr Williams explained that the earlier statements were incomplete because he had to stop them to go to work.  He also said that he made no mention in the first statement of the events at the gang pad later in the day because he had not wanted to get involved. 

Gendall J’s ruling

[39]       Gendall J dealt with the admission of the hearsay evidence in ruling no. 8 of 4 September 2008.  The Judge considered under s 18 of the Evidence Act 2006 (“the Evidence Act”) that Mr Williams was clearly unavailable and that the circumstances relating to the statements provided reasonable assurance that the statements were reliable.  The Judge identified those circumstances as being (at [7]):

(a)The statements were made to police officers;

(b)They were signed as true;

(c)They were made during inquiries into a serious crime;

(d)The third statement explains the incomplete nature of the first statement;

(e)Mr Williams was not a member of the gang;

(f)Mr Williams was not involved in the events in respect of which charges were laid; and

(g)He had no reason to make false statements, to be untruthful or to invent facts.

[40]       The Judge noted Mr Williams had convictions (between 1995 and 1998 for aggravated robbery, theft and burglary for which non-custodial penalties were imposed).  He directed these convictions were to go to the jury if the defendants so wished (the defendants chose not to request admission of the convictions).

[41] The Judge further considered that the evidence itself did not have an overly prejudicial effect with any prejudice coming rather from the inferences the Crown intended to invite the jury to draw from the statements. Finally, Gendall J noted that the statements are “first-hand” hearsay in that the deceased witness had personal knowledge of the information given: at [12].

Submissions

[42]       Mr King for the appellant submits that the circumstances of the statements do not provide reasonable assurance this evidence is reliable.  The submission is that the statements were self-serving in that they denied any assault by Mr Williams on Mr Wallace.  Further, it is submitted that the statements are inconsistent in that the incident with Mr Wallace is not mentioned until the third statement indicating that Mr Williams lied in earlier statements.  It is also submitted that Mr Williams’ convictions meant he was not someone who could be relied upon.  Finally, the appellant submits that the evidence was prejudicial in its allegation of a severe assault by him on Mr Wallace and because it indicated a strong chain of command headed by the appellant.  As the evidence did not prove anything at issue in the case except through speculation, the probative value was low and did not outweigh the prejudice. 

[43]       The Crown submits the Judge was correct to find that the requirements of the hearsay provisions in the Evidence Act were met.  In addition, it is submitted that the admission of Mr Williams’ statements caused no illegitimate prejudice to the appellant.  The statements were peripheral to the case against Karl Check and evidence of him punching a prospect who later accompanied him voluntarily on the drive-by would have had very little impact on the jury issues.  The Crown also submits that cross-examination of Mr Williams would not have made any relevant difference.

Discussion

[44]       Section 18 of the Evidence Act relevantly provides that a hearsay statement is admissible if “the circumstances relating to the statement provide reasonable assurance that the statement is reliable” (s 18(1)(a)) and the maker of the statement is unavailable as a witness (s 18(1)(b)(i)).  A person who is dead is unavailable:  s 16(2)(a).

[45]       “Circumstances” for these purposes are defined in s 16(1) as including:

(a)         the nature of the statement; and

(b)         the contents of the statement; and

(c)          the circumstances that relate to the making of the statement; and

(d)         any circumstances that relate to the veracity of the person; and

(e)any circumstances that relate to the accuracy of the observation of the person.

[46]       Section 8 of the Evidence Act is also relevant.  That section provides that evidence must be excluded if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding. 

[47]       The Judge has properly considered the relevant factors in terms of the Evidence Act.  In terms of the circumstances listed in s 16 we also note that the key statements were made on 15 May and 20 May 2007, ie, ten days and fifteen days after the events they described.  Further, no threats or inducements were made to Mr Williams.  The only possible motive to lie suggested by Mr King was bravado but the sequential nature of the disclosure does not fit well with that possible motive.  Indeed, the sequence of disclosure is rather more consistent with Mr Williams’ explanation he was reluctant to become involved.  After all, he was talking about people he knew quite well and, indeed, he said he and the appellant are cousins.  It is difficult to see how the statements can be seen as self-serving given Mr Williams had no self-interest.

[48]       Mr King’s submission that the statements are inherently unreliable because there is no other evidence supporting them and his associated submission that the evidence is unfairly prejudicial can be considered in the context of the s 8 inquiry (cf:  R v Shortland [2007] NZCA 37 at [43]).

[49]       As to the first point, we agree with the Crown submissions that there is nothing inherently unreliable in Mr Williams’ statements.  Indeed, the statements are consistent with the general narrative and sequence of events of the day.  Other witnesses’ evidence confirmed that narrative.  Individual aspects of his statements were also confirmed by other evidence.  In this category, for example, is Mr Williams’ description of Hayden Wallace and what he was wearing that day.  Similarly, Mr Williams’ description of the appellant’s clothing was confirmed by other witnesses.  In addition, there was evidence from police officers that Mr Wallace had two scratches on his right temple when he was seen on 8 May 2007 and a black eye on 10 May 2007 consistently with Mr Williams’ evidence he had been beaten up.

[50]       In terms of prejudice, the first point to note is that the evidence was significant to the case against Mr Wallace and properly admissible for that reason.  It could not in reality be excluded because of the alleged prejudice to the appellant.  The most that could occur is severance, but any prejudice to the appellant fell far short of supporting that step.

[51]       It is prejudicial for a jury to hear that a person charged with murder has been violent.  The possible impact in this trial is however much reduced for the following reasons:

(a)The appellant is a patched gang member and that was known to the jury;

(b)The appellant was not alleged himself to have used violence in the killing; and

(c)The main focus of the evidence related to Hayden Wallace.

[52]       Further, in terms of the balancing exercise, there was probative value in the case against the appellant in that it added to the pool of evidence establishing the relationships between the various participants.

[53]       Finally, the extent of any prejudice also has to be considered against the fact that Gendall J gave a warning to the jury about this evidence.  There is, appropriately,  no challenge to the terms of His Honour’s direction which reiterated the need for the jury to keep in mind the inability of the defence to cross-examine or test Mr Williams’ evidence.

[54]       The evidence was admissible under s 18, it was probative and no question of unfair prejudice arises in terms of s 8.

The voice identification evidence

[55]       The Crown led evidence from Shane Roberts that at the party after the shooting, Mr Roberts heard the appellant say to Mr Wallace, “Did you get one?” and again, “Did we get one?”  Mr Roberts gave evidence in return for immunity from prosecution.

[56]       It was not disputed that Mr Roberts could not see the appellant when these words were said.  Mr Roberts stepped outside the pad because he was unhappy with the celebratory atmosphere.  He said he had gone a short way out of the door to the pad and was standing by a woodpile at the bottom of the steps leading up to the doorway. 

[57]       He said that he heard these words a “couple of minutes, one or two minutes”, after he had gone out to the door.  He said he had just got to the bottom of the steps and was standing to the side.

[58]       Mr Roberts was examined by counsel for the appellant and this exchange took place:

Q            And what do you think you heard when you were out there?

AI did hear Richie [Puohotaua] was still sieg heiling it, Karl [the appellant] was saying “Hayden, did you get one?” I didn’t hear no other reply, then I heard Karl go, “Hayden, did we get one?”

Mr Roberts acknowledged that there were a group of people inside the pad.  There was a party atmosphere and drinking and music.  It was suggested to Mr Roberts that the appellant never said the words attributed to him.  Mr Roberts disagreed.  He was also asked whether it might have been possible that someone else was saying these things.  His response is as follows:

A            Possible, but I disagree, I know what I heard and whose voice.

QOver the music and the yahooing and all that carry on from inside?

AYes, there’s only Richie sieg heiling it and Karl’s voice speaking.

The trial Judge’s approach

[59]       In his ruling on this matter, on 1 December 2008 (no. 19) Gendall J took the view that the time at which the identification was made was when Mr Roberts heard the appellant’s voice.  Alternatively, the identification was made at the latest when he made his statement in June 2007 to the police saying he heard the appellant ask those questions.  On either approach the Evidence Act did not apply to the identification.  Section 206 of the Act provides that the sections dealing with identification do not apply in relation to identifications made before the commencement of those sections.  The sections came into force on 1 August 2007.  However, the Crown was content to proceed in any case on the basis that it could meet the requirement in s 46 of the Evidence Act that the circumstances in which the identification was made have produced a reliable identification. 

[60]       In terms of s 46, the Judge said he was “satisfied by a wide margin” that the prosecution had proved the circumstances of the voice identification enabled a reliable identification to be produced.  The Judge’s reasons were as follows:

(a)Mr Roberts was familiar with the appellant and knew his voice;

(b)Mr Roberts was involved with the appellant as his prospect and as a driver of his car;

(c)Mr Roberts had spoken extensively to the appellant on the day in question and had been speaking to him face to face shortly before the relevant utterances;

(d)There was no significant temporal gap between Mr Roberts seeing and hearing the appellant speak inside the house and hearing the appellant continue to speak when Mr Roberts went outside; and

(e)Mr Roberts was in reasonably close proximity to the appellant when he heard the words and made the identification.

Submissions on voice identification

[61]       The appellant submits that the identification was made at trial and so the Evidence Act provisions apply.  Alternatively, it is submitted that the common law rules on voice identification were “much the same” with a heavy caution against their admissibility. 

[62]       In submitting that the circumstances could not produce a reliable identification, the appellant says there were more indicators of unreliability than the matters considered by the Judge.  The appellant relies on the fact that Mr Roberts had been drinking and had smoked three joints; there were a number of people inside the house; a party atmosphere and background noise; Mr Roberts agreed that it was possible that someone else had made the remark; and it was a highly charged atmosphere in the course of which Mr Roberts agreed the appellant had been annoyed at Mr Wallace because a child had been killed.

[63]       The Crown says the Evidence Act does not apply.  That is because the voice identification (if that is what it was) was made at the time Mr Roberts heard the appellant, namely, 5 May 2007 or at the latest, when Mr Roberts made his statement to the police in June 2007.  In either case, the Evidence Act provisions relating to identification were not in force.

[64]       In any event, the Crown says that it had proved on the balance of probabilities that the identification was reliable.

Discussion

[65]       As we have noted, where a voice identification is made after 1 August 2007, the admissibility of the voice identification evidence is governed by s 46 of the Evidence Act:  s 206 of the Evidence Act.  Section 46 states that:

Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.

[66]       “Voice identification evidence” is defined in s 4(1) of the Evidence Act as:

[E]vidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who was connected with an act constituting direct or circumstantial evidence of the commission of an offence.

[67]       For visual identification the focus in terms of “making” the identification is on the formal procedures set out in the Act:  s 45.  The reason s 45 does not apply to pre-commencement identifications is that the requirements of s 45 differ from the identification procedures previously considered best practice.  Parliament did not want to rule evidence from such identification procedures to be inadmissible, provided the procedures had been undertaken in accordance with best practice at the time:  R v Peato [2009] NZCA 333 at [19]. No similar formal procedures are provided for in relation to voice identification.

[68]       When the identification was “made” is not critical here and we do not decide the point.  It is unnecessary to do so because, as we have seen, the Judge has ultimately applied s 46.  The Judge has properly considered the relevant factors whether in terms of the common law or under the Evidence Act.  The Judge did so after hearing from Mr Roberts on the voir dire.  In cross-examination at the voir dire Mr Roberts accepted that earlier in the evening he had been smoking cannabis and that he had been drinking but only a small amount.  He accepted that there were a bunch of people inside the pad, a party atmosphere, music and a group of men talking and shouting and yahooing.  He agreed that the appellant does not have a lisp or anything unusual about his voice.  He also said that he could hear a number of voices from inside.  As we have noted, he accepted it was possible that someone else may have said those things but he did not agree that was so. 

[69]       To questions from the Court during the voir dire, Mr Roberts said that he was talking to the appellant inside the pad, that he heard the appellant say, “Did we get one?” one or two minutes after he got outside, and that he would have just got to the bottom of the steps.  When asked by the Judge whether he heard others talking or making noises, and if so, whether he could tell who they were, Mr Roberts said, “No Your Honour, I could just hear Richie and Karl talking”.

[70]       The critical factors are Mr Roberts’ knowledge of the appellant (he had known him for about 15 years and had been his occasional driver in the months preceding the 5 May shooting) and the lack of any temporal gap between Mr Roberts talking with the appellant and when he said he heard the words in issue.  The situation was similar to, as Gendall J said, that where a person is present when another is speaking and then retires to an adjacent room while continuing to hear the same person speaking.  In terms of the reliability of the evidence, there is some merit in the Crown submission that recognition is relevant to reliability in this context:  R v Edmonds [2009] NZCA 303.

[71]       Mr King makes something of what he says is the inconsistency between the “Did we get one?” comment and the fact the appellant by then knew that a two-year old child had been killed and had expressed annoyance about Mr Wallace, telling Mr Roberts to wait until “Hayden” got there.  The Crown points out that, in re‑examination, Mr Roberts clarified what he meant, namely that the appellant was disgusted with Mr Roberts for raising the matter with him and told him to wait until Hayden arrived.  There is also force in the Crown submission that what Mr Roberts said he heard was consistent with the notion that this was the first time after the shooting at which the “patchie” was meeting his prospect.

[72]       Finally, we note that whether or not an identification warning was needed, the Judge did direct the jury about the dangers of voice identification evidence.  Not surprisingly, no issue is taken with the terms of the direction which were comprehensive.

[73]       For these reasons, which are essentially those given by Gendall J, we consider that the evidence was properly admissible.  No issues in relation to s 8 of the Evidence Act arise.

The mode of evidence

[74]       Wiremu Karamaina gave evidence for the Crown in exchange for immunity from prosecution. 

The relevant evidence

[75]       Mr Karamaina’s evidence was that the appellant specifically ordered Hayden Wallace to shoot at the Black Power members before the convoy set off.  He also said that before the gun was given to Mr Wallace he saw someone he could not identify holding the gun whilst standing in close proximity to the appellant, suggesting that the appellant must have known about the gun.  Neither of these points was corroborated by Mr Roberts.  Mr Karamaina gave his evidence by CCTV from an undisclosed location, as did Mr Roberts.  A number of other witnesses also  gave their evidence by CCTV. 

The Judge’s ruling

[76]       Gendall J directed that evidence be given by CCTV in ruling no. 5 on 3 September 2008.  The application was considered by the Judge under ss 103 and 105 of the Evidence Act.  The Crown applied for the order that Mr Roberts and Mr Karamaina give evidence by CCTV on the basis that the witnesses feared intimidation: section 103(3)(d).  The Judge also considered s 103(3)(f),(g) and (h) which respectively relate to the nature of the proceeding, the nature of the evidence and the relationship of the witnesses to the parties.

[77]       Gendall J accepted the evidence of Senior Sergeant David Kirby, a police officer based in Wanganui, on gang intimidation and reprisal.  The Judge cited R v Kahui HC AK CRI-2006-057-1135 10 July 2007 at [15] for the proposition that the fairness of the proceeding to which he must have regard under s 103(4)(a)(i) included fairness not only to the defendant but also to the community and to the complainant.  (See also R v Simi [2008] NZCA 515 at [28].) The Judge cited R v L [1993] 4 SCR 419 (SCC) for the view that his focus must be on the most effective measure for obtaining the best evidence.

[78]       The Judge did not accept defence counsel’s submission that a person’s demeanour would assist the jury in determining credibility.  The Judge referred to R v Munro [2008] 2 NZLR 87 at [73] – [84] (CA) for expressions of doubt over demeanour as an aid to credibility. In any case, Gendall J observed that the jury would be able to both see and hear the witnesses if evidence was given by CCTV.

[79]       In the end, the Judge considered that the interests of justice and a fair trial process for all concerned required that Mr Roberts and Mr Karamaina give their evidence by CCTV from a location away from the courtroom.  Any prejudice to the defendants could be met by direction under s 123 of the Evidence Act explaining that the jury must not draw any adverse inference because evidence is given in an alternative way.  Such a direction was included as part of the summing up.

Submissions

[80]       The appellant argues that Mr Karamaina was so crucial a witness that the jury had to be able to see and assess him for itself.  It was his evidence that separated out the appellant from others in his vehicle and others in the criminal organisation.  Mr King also submits that Mr Karamaina as well as having a psychiatric disorder (schizophrenia) was demonstrably unreliable having given inconsistent accounts and evidence that conflicted with that of Mr Roberts.  He submits this made it more important that Mr Karamaina be exposed to the “salutary environment” of the courtroom in giving his evidence.  Any risk of intimidation could have been managed, it is submitted, by closing the court to members of the public or the use of screens.  Mr King said the defendants had said they could leave the courtroom and watch by CCTV.

[81]       The Crown says that given the possibility of interference and dissuasion, and the possibility Mr Karamaina’s fear of intimidation, both of which the Judge found were real, there were ample relevant reasons for the Judge’s direction.

Discussion

[82]       Section 103 of the Evidence Act provides that a Judge may direct that a witness is to give his or her evidence and be cross-examined in the “ordinary way” or in an “alternative way” as provided in s 105.

[83]       The “ordinary way” for a witness in the present case to give evidence is relevantly defined in s 83 of the Act as “orally” in a courtroom in the presence of the judge and jury, the defendants, counsel, and members of the public.

[84]       The “alternative ways” of giving evidence in s 105 include the witness giving evidence from an appropriate place outside the courtroom:  s 105(a)(ii).

[85]       Section 103(3) goes on to provide that a direction that a witness give evidence in an alternative way may be made on the grounds of the witness’s fear of intimidation:  s 103(3)(d).  Section 104(4) states that in making such directions, the Judge 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

(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.

[86]       There was plainly a basis for the Judge’s directions in this respect.  Mr King emphasises the impact of what he describes as the “solemn environment” in the courtroom.  However, the Act makes provision for evidence to be given outside of that environment and there was a basis for doing so here.  Further, as Mr Burston says for the Crown, the witness was still subject to his oath to tell the truth.

[87]       While not a ground of appeal, Mr King makes something in this context of what he says are inconsistencies between the evidence of Mr Roberts and Mr Karamaina over a critical issue for Karl Check, namely, whether or not Mr Check gave the order to Hayden Wallace to “shoot them in the head”.  He also points to Mr Karamaina’s mental health issues including his auditory hallucinations.

[88]       These matters were all matters for the jury.  Further, as Mr Burston points out, on Mr Roberts’ account it was open to the jury to conclude that there was no inconsistency between Mr Roberts and Mr Karamaina’s accounts.  That is because, at the time Mr Karamaina says he heard the appellant give the order to shoot, Mr Roberts had gone inside his partner’s house.  When he returned, it was to see the appellant in the middle of the road consistently with where he would have been on Mr Karamaina’s account. 

[89]       As to Mr Karamaina’s mental health, the Judge heard evidence on this on a voir dire.  Evidence at the voir dire was given first from Lance Rowe who had acted for Mr Karamaina.  Mr Karamaina’s statements to Mr Rowe consistently referred to hearing Karl Check tell Hayden Wallace to “shoot them in the head”.  Mr Rowe said he had not had any concerns about Mr Karamaina’s mental health.  The Judge also heard expert evidence from Dr Ceri Evans, a forensic psychiatrist.   Dr Evans said that clinical testing of Mr Karamaina had not revealed any major cognitive defects; his intelligence level was in the normal range; his memory functioning was within normal limits and no major clinical disorder of memory was present.  Mr Karamaina was cross‑examined at trial about his mental health including the fact he said he heard voices and about the extent to which he kept up his medication so these matters were all squarely put before the jury.

[90]       Finally, we note that Mr Karamaina’s evidence was consistent with the general narrative and was coherent.  His evidence about the giving of the order was obviously important but there was other, supporting, evidence about the relationship between the appellant and Hayden Wallace, namely, that the latter was Karl Check’s  prospect, about Mr Check’s increasing agitation throughout the day, and about his desire for revenge.

The sentence appeal

[91] In sentencing the appellant, Gendall J said he was satisfied that the appellant was an active party in the offending “and indeed the prime mover and instigator”: at [62]. The Judge also said he was satisfied that the appellant was “the prime mover having been bent on seeking revenge and retribution against members of the Black Power group”: at [63].

[92] Gendall J did not accept that the appellant’s remorse arose out of what he did but rather was regret “that the wrong victim was killed and [the appellant was] caught and convicted” and was “self-serving”: at [79].

[93]       The appeal against sentence is brought on the basis that the appellant should have been sentenced to a minimum period of imprisonment of 12 and a half years like Ranji Forbes on the basis of genuine remorse.

[94]       However, at the hearing, Mr King properly accepted on the basis of R v Hessell [2009] NZCA 450 that there was little point in arguing that a further discrete allowance should have been given for remorse. We add only that it was open to the Judge to reject the appellant’s claims of remorse. There were limited references to remorse in the pre-sentence report, namely:

Karl Check stated he is very remorseful for what happened that night and became visibly upset during the interview.  He expressed empathy towards the victim and victim’s family. 

[95]       The Judge’s finding as to the appellant’s role was also plainly open to him.  On that basis, the appellant’s culpability equated with that of Hayden Wallace who fired the gun rather than with Mr Forbes.  The minimum period of imprisonment imposed on Mr Wallace was, as we have noted, 15 years. 

[96]       The circumstances attaching to Mr Forbes are far too different to support a disparity argument.  Mr Forbes drove the vehicle carrying Mr Wallace and knew that it was intended to discharge the rifle.  He was also on bail at the time of the offending.  However, Mr Forbes was aged 20 at the time, showed some acknowledgement of responsibility in his interview with the police (he accepted he was the driver of a vehicle) as well as being remorseful.

[97]       We are satisfied no question of disparity arises.  Given the appellant’s role and the need for general as well as personal deterrence for this offending, there is no basis for challenging the length of the minimum period of imprisonment imposed.

Disposition

[98]       For these reasons, the appeals against conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington