The Queen v Kingi

[2008] NZCA 195

IN THE COURT OF APPEAL OF NEW ZEALAND

CA11/2008
[2008] NZCA 195

THE QUEEN

v

PAUL TAKANA KINGI

Hearing:23 June 2008

Court:Ellen France, Gendall and Ronald Young JJ

Counsel:K E Becker for Applicant

S B Edwards for Crown

Judgment:30 June 2008 at 2.30pm 

JUDGMENT OF THE COURT

Application for extension of time to appeal conviction refused.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       Fifteen years after his conviction for assault with intent to injure, Mr Kingi applies for an extension of time to appeal his conviction (s 388(2) Crimes Act 1961).  In support of the application Mr Kingi says:

(i)There is new evidence which supports his claim that he was acting in self-defence;

(ii)The proposed appeal has a real likelihood of success;

(iii)The new evidence in support of the appeal could not reasonably have been obtained any earlier.

Background

[2]       Mr Kingi was a doorman at a nightclub in Palmerston North in March 1993.  He finished work at about 3am and was having something to eat at the rear of the premises when he heard a confrontation at the front door.  He went to investigate.  He saw his brother in a fight with another man.  A group of Polynesian men were said to be threatening Mr Kingi and the other doorman.

[3]       The evidence of the complainant, Mr Reid, and that of Mr Kingi differs as to what then happened.  The complainant said that he was part of a group of around 50 people watching a fight between the doormen, including Mr Kingi, and the group of Polynesian men.  After Mr Kingi knocked down one of the Polynesian group, the complainant said he caught Mr Kingi’s eye. 

[4]       Mr Kingi came over to him, punched the complainant to the ground and kicked him two times in the face.  Mr Kingi’s evidence was that during the fight the complainant had approached him with a swinging arm.  He said that in self-defence he had knocked the complainant to the ground and kicked him twice in the head to keep the complainant from attacking him again.

[5]       Mr Kingi called as witnesses at trial, his brother Damian Kingi, a Massey University student who had been present at the scene Simon Erickson, another of the doormen who was involved in the fight Paul Shailer, a medical practitioner who described the injuries received by Mr Kingi Dr Paul Munro, and his mother Eleanor Kingi.

[6]       After conviction Mr Kingi was sentenced to seven months’ imprisonment, confirmed on appeal (CA383/93 11 November 1993).

[7]       In R v Lee [2006] 3 NZLR 42 at [100] – [107] this Court confirmed the approach to applications for extension of time to appeal convictions identified in R v Knight [1998] 1 NZLR 583 (CA). In Knight this Court said (at p 587):

The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed.

[8]       In Lee this Court stressed that the relevant factors include:

[99]     … the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

[9]       We consider, firstly, the new evidence tendered by the applicant.  As to the approach to “new” evidence, this Court in R v Bain [2004] 1 NZLR 638 said:

[22]     An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

…

[26]     It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.

[10]     Mr Kingi has filed four affidavits from Mr Paul Shailer, Shaun Grant, Eleanor Kingi and Uso Ali’i Ma’mea containing what is said to be new evidence. 

[11]     Part of the applicant’s complaint is that the police did not sufficiently investigate his claim that he was acting in self-defence when he struck the complainant that night.  Mr Grant, who was a constable in 1993, interviewed Mr Kingi after the complaint of assault.  Mr Grant says that to the best of his knowledge the police did not investigate Mr Kingi’s allegation that he was set upon by a group of Polynesian men that night.  Mrs Kingi, in her affidavit, says the men her son claimed were responsible for assaulting him and his brother had never been charged with any criminal offence.

[12]     The evidence at trial from both the Crown and the applicant confirmed that there was a confrontation between the group of Polynesian men and the doormen from the nightclub and others.  Indeed, the complainant’s evidence confirmed that this was so.  The complainant said he was a bystander who was attacked by Mr Kingi.  The applicant suggested at trial that the complainant was one of the group that attacked him.  Mr Shailer at trial said he did not think Mr Reid was associating with the Polynesian men.  None of the affidavits, however, suggested that the complainant was a member of the Polynesian group.  The evidence of Mr Grant and Mrs Kingi is therefore not relevant.  It is also not new evidence.  Both witnesses gave evidence at trial and could have been asked the very questions they now address in their affidavits.

[13]     Mr Shailer in his affidavit complains that he was about to tell the jury what the complainant was doing immediately before Mr Kingi hit him, but was stopped from doing so.  He says that he would have said that he told the complainant not to get involved, but the complainant “continued to advance waving his arms at Mr Kingi”.

[14]     The evidence at trial records Mr Shailer as saying the following:

I saw someone I recognised which was Tim Reid, he was just standing there a spectator I thought.  I said something to him like to move out of the way, he then confronted Paul with his two hands up like to tell him to stop, not to proceed.  (Demonstrates with hands held up).  Mr Reid con[f]ronted Paul with his hands raised like to be mediator to try and stop it maybe.  Paul struck him on the side of the head.  I recognised Timothy Reid as I knew of him, we weren’t actually acquaintances but I know of him and had seen him play rugby league before.  I said something to the complainant.  OBJECTION Mr Vanderkolk.  The angle that Mr Reid approached the accused was from the side.  We were facing to go towards the guy being kicked by the metre and he came across on the side to try and stop it or I don’t know.  He came across.  He wasn’t standing too far away from us and he moved up from Paul’s left, and he came up with both hands up.  It didn’t look to me in a threatening manner but it was like he wanted to say a few words or what ever.

[15]     It is clear from this evidence that Mr Shailer did tell the jury what the complainant was doing immediately before Mr Kingi struck him.  The information in Mr Shailer’s affidavit is therefore not new, it was already before the jury.

[16]     Finally, Mr Mamea’s affidavit.  Mr Mamea was not a witness at trial.  He said that he knew Mr Kingi and was outside the nightclub on the night of the fight.  His evidence is essentially a general description of a number of people wanting to fight Mr Kingi that night and he says Mr Kingi “just gave each of them or a couple of them enough so that they knew who they were dealing with and it was enough to stop them”.  This evidence has no obvious relevance to the facts of this case or to the application itself given its generality.  Nor was any reason given why this evidence could not have been called at trial.

[17]     There is nothing in the affidavit evidence which advances the applicant’s case.  At trial, the question for the jury was whether the Crown could disprove self‑defence.  There was a dispute between what the complainant said happened and Mr Kingi’s version.  If the jury accepted what the complainant said and rejected what Mr Kingi said a conviction was inevitable.  However, even if the jury accepted Mr Kingi’s version of events they could have concluded that Mr Kingi’s response to the complainant’s actions was hardly a use of reasonable force in the circumstances (s 48 Crimes Act). 

[18]     In summary, whether the police did or did not investigate who the Polynesian men were is hardly relevant.  The question for the jury was the applicability of self‑defence in relation to Mr Kingi’s actions with respect to the complainant.  The applicant has not suggested any reason why he could not have called Mr Mamea to give evidence as a witness at trial.  The other “new” evidence from the deponents is not new given they were witnesses called at trial.

[19]     Finally, there is no evidence as to why the applicant waited 15 years to bring this application. 

[20]     In the circumstances, therefore, the application is refused.

Solicitors:
Crown Law Office, Wellington