The Queen v John Kaire

[2000] NZCA 192

IN THE COURT OF APPEAL OF NEW ZEALAND CA170/00

THE QUEEN

V

JOHN KAIRE

Coram:	Thomas J Blanchard J Tipping J
Judgment (On the papers):	7 September 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. The appellant, Mr Kaire, was convicted in the District Court at Auckland on charges of aggravated robbery, aggravated assault and unlawfully taking a motor vehicle.  He was sentenced to 9 years imprisonment.  He now appeals against his convictions.

2. The appellant applied for legal aid in respect of this appeal.  The Registrar declined the application after the necessary consultation pursuant to s15 of the Legal Services Act 1991.  The appeal has, therefore, been determined on the basis of written submissions.

3. The offending of which Mr Kaire was convicted involved the armed robbery of the TAB at Pukekohe.  The Crown case was that the offenders, including Mr Kaire, assembled at the Counties Inn, where they parked their car before heading off to the TAB in a stolen vehicle.  An employee noted the registration of the car left parked at the Inn and it was confirmed as Mr Kaire’s car.  In the course of the armed robbery one of the two robbers jumped over the counter and had a struggle with the TAB operator as a result of which the operator was struck in the head.  This robber left a shoe print on a piece of newspaper which had been on the counter as he jumped over it.  After the robbery they returned to the Inn and left in Mr Kaire’s car.  This car was involved in a motor accident which left Mr Kaire in hospital.

4. Mr Kaire submits two main grounds in support of his appeal against conviction.  The first is that the ESR evidence matching the shoe print taken from the newspaper with the shoes worn by Mr Kaire to the hospital should have been ruled inadmissible.  The second is that the evidence of the employees at the Counties Inn is inconsistent with Mr Kaire being involved in the offending.

5. Mr Kaire was granted legal aid to have an independent scientist examine the shoe print on the newspaper.  To this end the scientist was provided with the dust lift taken by the ESR expert and Mr Kaire’s shoes.  The scientist was not provided with the newspaper itself which had been disposed of by the police.  The reason given for this was that the print on the newspaper was not a strong one and it was considered very unlikely that a second dust lift would have been able to be taken from the newspaper.  The trial Judge gave a voir dire ruling that in the circumstances there had been no prejudice to the defence and the ESR evidence was held admissible.  Nothing in Mr Kaire’s submissions has demonstrated that the trial Judge was wrong in his ruling.  Mr Kaire argues that he is a heavy man and that he would have left a strong imprint on the newspaper.  This submission goes to the weight of the evidence and does not itself raise an issue of prejudice to the defence.  Mr Kaire’s submissions also allege some degree of fabrication by the police with respect to the shoe print.  These allegations are not supported by evidence.

6. Evidence was given at trial by two employees of the Counties Inn, Mr Horsfall and Mr Trepass.  Mr Kaire submits that the evidence of these two men is inconsistent with his being involved in the offending.  He says that the evidence of Mr Horsfall establishes that, at the time of the robbery, Mr Kaire’s car was at the Counties Inn, some distance from the TAB and therefore Mr Kaire was not at the scene of the robbery.  There is clearly no merit in this submission.  The evidence does not establish that Mr Kaire himself was at the Counties Inn with his car.  On the contrary, the Crown case, which is supported by the evidence, is that Mr Kaire left his car at the Counties Inn while he went to the TAB in a stolen vehicle and then returned after the robbery to collect his car and make his getaway.  Mr Kaire then submits that the evidence of Mr Trepass is that the man he saw driving Mr Kaire’s car away from the Inn was not wearing a shirt and had a tattoo on his chest.  Mr Kaire does not have a tattoo on his chest and Mr Trepass was not able to positively identify Mr Kaire in Court.  We are, however, satisfied there was sufficient other evidence establishing the identity of Mr Kaire as one of the offenders, particularly the ESR evidence of the shoe print and the magazine found in Mr Kaire’s clothing, matching a weapon used in the robbery.  In these circumstances it can not be said that the verdict was unreasonable or not supported by the evidence.

7. For the reasons given above the appeal against the three convictions is dismissed.