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…

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 The Queen v Check

Details

AGLC: The Queen v Check [2009] NZCA 548
Case: [2009] NZCA 548
Decision Date: 20 November 2009

CaseChat Overview and Summary

The case of The Queen v Karl Check, heard by the New Zealand Court of Appeal, involves the conviction and sentencing of Karl Check for the murder of Jhia Te Tua, a two-year-old child. The appeal against conviction and sentence was dismissed. The appeal against conviction was based on the alleged admission of hearsay evidence, voice identification evidence, and the giving of evidence by a key witness via closed-circuit television (CCTV). The sentence appeal was based on the claim that the appropriate minimum period of imprisonment was 12 and a half years, not 15, in comparison with one of the co-offenders, Ranji Forbes.

The court held that the hearsay evidence was admissible under the Evidence Act, and it did not unfairly prejudice the appellant. The voice identification evidence was also found to be reliable, and the court held that the Evidence Act provisions on identification did not apply. Regarding the mode of evidence, the court found that it was appropriate for the key witness to give evidence by CCTV due to the fear of intimidation. Lastly, the court held that the appellant's sentence was appropriate, considering his role in the offence and the need for general and personal deterrence.

Orders