Yad-Elohim v The King - [2024] NZSC 168

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 73/2024
SC 74/2024
[2024] NZSC 168

BETWEEN	GABRIEL HIKARI YAD-ELOHIM Applicant
AND	THE KING Respondent

Court:	Ellen France, Kós and Miller JJ
Counsel:	J Y Yi for Applicant M J Lillico for Respondent
Judgment:	6 December 2024

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed, without prejudice to Mr Yad‑Elohim’s right to seek leave to appeal after the Court of Appeal has considered any recall application.

____________________________________________________________________

REASONS

Mr Yad-Elohim seeks leave to appeal his conviction for murdering Michael Mulholland on 26 September 2017. His defence was insanity.
On 1 May 2023 the Court of Appeal dismissed his conviction appeal.[1] On 4 June 2024 it declined to extend time for appealing the sentence of life imprisonment with a minimum period of 13 years.[2] He no longer pursues an application for leave to appeal his sentence.
[1]Yad-Elohim v R [2023] NZCA 136 (Goddard, Woolford and Fitzgerald JJ) [CA conviction judgment].
[2]Yad-Elohim v R [2024] NZCA 206 (Wylie, Lang and Campbell JJ) [CA sentence judgment].
The proposed appeal is brought on the ground that a substantial miscarriage of justice may have occurred because the defence had insufficient time to prepare in the face of new information about Mr Yad-Elohim’s Korean origins and his delusion that he was a Japanese anime character.
Briefly, Mr Yad-Elohim had gone to Mr Mulholland’s apartment with an acquaintance, Ms Uru, to buy drugs. She evidently knew Mr Mulholland but he did not. She told him to wait downstairs while she completed the transaction. She did not visit the apartment but left via a balcony, taking Mr Yad-Elohim’s money. She had planned to do that all along. After a time he became suspicious and went to the apartment, where he confronted Mr Mulholland and then attacked him. The killing was brutal; Mr Mulholland was kicked and stomped on over a period of seven minutes.
Mr Yad-Elohim is a person with mental health conditions. He has a diagnosis of schizophrenia. At the time he was experiencing psychosis. It was common ground at his trial, which was held in July/August 2018, that he had a disease of the mind.[3] The Crown must have persuaded the jury that he was not insane at the time but rather acted as he did because a drug deal had gone wrong.
[3]See R v Yad-Elohim [2018] NZHC 2494 (van Bohemen J) at [6] and [41].
Mr Yad-Elohim was twice found fit to stand trial.[4] He told a series of health assessors that he was Japanese and his name was Yuuki Watanabe. During trial a Korean lawyer contacted defence counsel to advise him that Mr Yad‑Elohim is in fact Korean. (He was born in South Korea and was formerly named Jung Hoon Song. He adopted the Hebrew name Gabriel Yad-Elohim in 2012). An agreed statement of facts to that effect was produced.
[4]See R v Yad-Elohim [2018] NZHC 1785.
Six days before trial…

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.

Keep reading for free

Create a free CaseChat account to read Yad-Elohim v The King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZSC 168
Decision Date: 6 December 2024

CaseChat Overview and Summary

Gabriel Hikare Yad-Elohim has applied to the Supreme Court for leave to appeal against his conviction for the murder of Michael Mulholland, who was killed on 26 September 2017. His defence was insanity, a submission which was accepted at trial but rejected by the jury. The Court of Appeal dismissed his appeal against conviction in May 2023 and declined to extend the time for appealing his sentence in June 2024. The application for leave to appeal is based on the claim that a substantial miscarriage of justice may have occurred because the defence did not have sufficient time to prepare for trial in light of new information about Yad-Elohim’s Korean origins and his delusion that he was a Japanese anime character.

The primary issue before the Court was whether Yad-Elohim should be granted leave to appeal to the Supreme Court or whether the matter should be remitted to the Court of Appeal. The Court had to determine whether the new evidence was significant and credible enough to justify a substantive miscarriage of justice. The Court had to consider the reasons why the new evidence had not been presented to the Court of Appeal and assess its impact on the other evidence led at trial and on appeal. The Court also needed to determine whether the application for leave to appeal was made in a timely manner.

The Court held that the application for leave to appeal was out of time and that no explanation had been offered for the delay. Nevertheless, the Court considered the merits of the application. The new evidence was significant and credible, but its impact on the other evidence was difficult to gauge on a leave application. The reasons why the new evidence had not been presented to the Court of Appeal were unclear. For these reasons, the Court concluded that Yad-Elohim should seek recall of the Court of Appeal’s decision. The application for leave to appeal to the Supreme Court was dismissed, without prejudice to his right to seek leave to appeal after the Court of Appeal has considered any recall application.

Orders