THE QUEEN v JOHN LEE KAIRE [2000] NZCA 202 (14 September 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca170/00

THE QUEEN

V

JOHN LEE KAIRE

Coram:	Thomas J Blanchard J Tipping J
Judgment (On the papers):	14 September 2000

judgment of the court DELIVERED BY TIPPING j

[1] The appellant, Mr Kaire, was convicted in the District Court at Auckland of charges of; aggravated robbery, aggravated assault and unlawfully taking a motor vehicle. Mr Kaire was sentenced to 9 years imprisonment in respect of this offending. He now appeals against these convictions and the sentence.

[2] The appellant applied for legal aid in respect of this appeal. The Registrar declined the application after the necessary consultation with three Judges of this Court pursuant to s15 Legal Services Act 1991. The appeal was, therefore, determined on the basis of written submissions.

[3] The offending with which Mr Kaire was convicted involved the armed robbery of the TAB at Pukekohe. The Crown case was that the offenders, including Mr Kaire rendezvoused 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 is 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 that had been on the counter as he jumped over it. After the robbery they then returned to the Inn and left in Mr Kaire's car. This car and its occupants was then involved in 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 convinced us 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. It seems clear to us that the strength of a shoe imprint will not necessarily be directly related to the weight of the person making the print, but more likely the force of the connection. In any case 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. We find these allegations to be wholly unsupported by evidence.

[6] Evidence was given at trial by two employee's of the Counties Inn, Mr Horsfall and Mr Trepass. Mr Kaire submits that the evidence of these two men is inconsistent with him being involved in the offending. Mr Kaire points out that the evidence of Mr Horsfall establishes 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. However, we are satisfied there was sufficient other evidence establishing the identity of Mr Kaire as the offender, 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 against the weight of evidence.

[7] Mr Kaire also made a separate appeal against sentence. The submissions did not disclose any substantive grounds for the appeal. In any case we are satisfied that the sentence of 9 years is entirely appropriate for the offending.

[8] For the reasons given the appeals against both conviction and sentence are dismissed.