R v ZION HIORA KING [2003] NZCA 292 (15 December 2003)

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JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1] In the early hours of 13 July 2002, a robber, armed with a metal bar, broke into the Golden Chance TAB at Napier and robbed Mr Peter Pinfold (who was one of the TAB’s co-owners) ofa little under $4,000.

[2] The appellant has been found guilty by a jury of charges of aggravated burglary and aggravated robbery associated with this incident and he now appeals against conviction.His appeal turns largely on what happened at trial.But this cannot be properly understood without some prior reference to the factual background.

The factual background

[3] The Crown case was that the appellant was the robber and a Ms Lena Ruru had been a party to his offending.

[4] Mr Pinfold shut the TAB at around midnight.It is common ground that shortly after midnight Ms Ruru came to the back of the TAB.Ms Ruru and Mr Pinfold were acquainted and he let her in, and, in the process, opened a security door. At this point a man wearing a balaclava and holding an iron bar ran towards the door.With some assistance from Ms Ruru, Mr Pinfold was able to shut the door and secure it.The robber then forcibly entered the premises through the front door; this notwithstanding a security bar which was across it. Making threats of violence, he demanded money from Mr Pinfold and, having obtained a little under $4,000 from him,left the premises.

[5] A little later in the morning of 13 July Ms Ruru was interviewed by Constable Wendy Wright.In her statement she said that she had gone to the TAB to obtain some cigarettes and had spoken to Mr Pinfold saying that this was what she wanted.She went on to say that he had invited her to the back entrance.From this point she gave a narrative of events which matched broadly the evidence of Mr Pinfold.

[6] Ms Ruru was interviewed again;this time on the afternoon of13 July.

[7] For present purposes the significant part of the interview was in these terms:

WW Right , now a few minutes ago we had a conversation about what happened at the Maraenui TAB last night.Can you just go through for me what happened when you left the Maraenui TAB last night, when Peter locked up the doors.Peter’s the manager.Can you tell me what you did.
LR Well I walked around the back.I didn’t realise someone was at the back and..
WW Okay so you walked out the front of the TAB.
LR Yeah out the front of the TAB.
WW And you said to Peter that you were going to go round to the back door.
LR Round the back, yeah.
WW Okay so which way did you walk round to get round the back.
LR Round by the church way.Going round that way.
WW Through the alleyway.
LR Yeah.
WW And what happened when you got around to the back of the shops.
LR I just saw this fella walking and then he stopped me.
WW What fella.
LR Zion KING.
WW Zion KING.Okay, what was Zion wearing.
LR He was wearing a green jacket, rain jacket, and all I could see was his black shorts.
WW Did he have anything on his head, or on his face, at all.
LR No, he just had it on, just round his head, he had a hood on.
WW He had a hood on.
LR Yeah.
WW Did he have anything across his nose or anything.
LR Yeah just a tied up thing, it was tied up.
WW Okay, how did you know it was Zion KING.
LR The way he was speaking to me.
WW You recognised his voice from the way he was speaking.
LR Yeah.
WWOkay tell me what Zion said to you.
LR He said, he told me to be quiet and told me that he was going to do, go in there and smash his way through.
WW Through, smash his way through where.
LR He was going to smash Peter over anyway.He was going to do a robbery anyway, I knew he was going to do a robbery.
WW What were his exact words to you, do you remember.
LR He said, shut up, be quiet, don’t tell anybody, I’m doing it on my own.
WW Okay.
LR Told me not to tell anybody.
WW When you say he said I’m doing it on my own, what did that make you think he was going to do.
LR He was doing it on his own, doing the job, doing the robbery job on his own.
WW On his own, okay.Did he have anything with him.
LR At that time no, he told me, he said he’s going to go back and get a iron pole, he’d be only a couple of seconds, two minutes at the most.And by the time Peter had opened the door he was already back with the iron pole.
WW Did you knock on the door.
LR Yeah.
WW You did.
LRYeah cause he told me to knock on the door.
WW Who told you to knock on the door.
LR Umm. Peter told me to go round the back and knock on the door.
WW Yeah.
LR And I didn’t realise that umm, he just said wait for me for a couple of minutes, that was Zion, wait for me a couple of minutes and I won’t be long, I’ll be back.By the time Peter had opened up the door and closed it, he was just right behind me.I had no chance of thinking, I was just too scared.
WW Okay, so you came round the back and you saw Zion in the back alleyway.
LR Yeah.
WW And he’s told you to wait a couple of minutes cause he’s going to go away and get an iron bar, is that right.
LR Yeah, yeah.
WW But did you wait.
LR No I knocked on the door anyway.
WW You knocked on the door.
LR Yeah.
WW Which way did Zion go when he said he was going to go and get a bar.
LR He must have went round by the church way, through the alleyway.
WW Through the ...
LR Yeah the walkway.
WW Did you see him go that way.
LR Yeah.
WW You did.
LR Yeah.
WW So you knocked on the door, did you say anything to Peter.
LR No, cause he, by the time he had come back that fella was already back there. Zion was already back there within minutes, within seconds actually.
WW He was back.
LR Yeah, it didn’t take him long.
WW And why didn’t you say anything to Peter.
LR It was just that at the time I thought if I did, well I was too scared.Plus not only that, I didn’t realise, if I had called, we called the cops, I thought he would have stopped but he didn’t.He ran around the front and smashed through the window.So he was actually ready to wait for him, he told me he was waiting for him to get out of the TAB, he was going to smash him.
WW Zion told you he was waiting for Peter and he was going to smash him.
LR Yeah.
WW Did he say why.Did Zion say why he was waiting for Peter.
LR No I don’t know what he was doing it for.He had no reason to do that.
WW Okay, so you went inside and that’s when Zion started to try and come in the back door.
LR Yeah.
WW Yeah, and what did you do inside.
LR I tried to help Peter close the door, and Peter was yelling out to me flick the switch, flick the switch.So I flicked the switch and we didn’t realise that he had come round the front and smashed his way through the window, all we could hear was smash smash with the iron bar.
WW Did that give you a fright.
LR Yeah.

[8] Later during the interview Ms Ruru said that she had seen the appellant’s face.

WW Why, if I was walking in a dark alley and I saw a guy masked up coming towards me, I’d certainly turn around and run away.
LR He wasn’t masked up but he had his raincoat over him and tied up.
WW So you saw his face.
LR Yeah.
WW So you recognised him from his face rather than just his voice like you’ve been telling us.
LR Yeah.
WW So you actually saw his face.
LR No he was masked up but I knew it was him cause the way he was talking to me and, no, I knew it was him.
WW Did you see his face.
LR Yeah.
WW You saw his face.
LR Yeah.
WW But he had the hood round.
LR Yeah.
WW So you saw his face.
LR Yeah.
WW Okay so when you first saw him he didn’t have a ..
LR Yeah he was covered up.
WW He was covered up.
LR Yeah, but I knew it was him cause I saw his face, yeah, saw his face and his voice.Through his voice and his face.
WW What’s distinctive about him.Like whats ...
LR Nothing, nothing really, cause he’s got rid of all his tatts.
WW Has he not got any tatts any more.
LR No, not that I know of.
WW So he hasn’t got tatts on his face.
LR No.
WW Okay,When did he get rid of his tatts.
LR I don’t know, I wouldn’t have a clue.He’s got nothing.

[9] In other parts of the interview Ms Ruru made some further admissions which could be regarded as tantamount to acknowledgments of complicity in the robbery as an accomplice.

[10] The Crown evidence implicating the appellant as the robber was circumstantial but formidable.The Crown also contended that Ms Ruru was a party to the robbery in that she had agreed to facilitate its commission by assisting the appellant to gain entry to the TAB through the back entrance.

The trial

[11] The appellant and Ms Ruru were arraigned in the District Court atNapier on 26 May this year.

[12] After the jury was empanelled, the Judge dealt with the admissibility of the video interview of Ms Ruru.He held that the admissions were inadmissible. The upshot was that the Crown had no evidence against Ms Ruru.Accordingly the Judge discharged her under s347, Crimes Act 1961.

[13] After the opening address to the jury by the prosecutor and an opening statement by defence counsel (who was not Mr Coles), Ms Ruru was called as the first Crown witness.Defence counsel did not challenge the entitlement of the Crown to do this.It is common ground that the prosecutor had earlier advised both the appellant’s then counsel and Ms Ruru’s counsel of his intention to call her as a witness if the admissions were held to be inadmissible.

[14] Ms Ruru did not give evidence in accordance with the account of events given in her video interview and the prosecutor was granted leave to cross-examine her on the statement.

[15] Initially in her evidence-in-chief Ms Ruru said that after she had spoken to Mr Pinfold at the front door and was on her way to the back entrance, she saw a person.The evidence then went on:-

Who did you see...oh I wasn’t too sure who it was but it was just dark at the time, I could just hear the voice.
Did you know that person...no.
Well what took place between you and that person, was anything said...no.
Well what did that person look like...I couldn’t describe him or her.

[16] Then, after Ms Ruru described the incident in which the robbery took place there was the following exchange:

You told us at first when you saw this person in the alley way, at the back of the shops, you didn’t know whether it was male or female, but having heard the voice inside the TAB are you able to tell us whether it was male or female ....
Yeah oh nah it was male.
Okay are you able to tell us who that person was.
Nah.

At this point the prosecutor sought leave to cross-examine Ms Ruru on her video statement.

[17] In his ruling granting leave to cross-examine Ms Ruru on her statement, the Judge referred to what he described as “reluctant evidence”.He noted that “Ms Ruru has been, in my view, quite difficult insofar as the Crown is concerned and could be described euphemistically as ‘a stranger to the truth’”.We should note, however, that the Judge also indicated:-

It would have been abundantly clear to any close observation of this particular trial that Ms Ruru was always going to be less than helpful in relation to her participation in it if she was called as a witness.
There will be obvious difficulties insofar as the Crown is concerned, but those difficulties arising because they have elected to call Ms Ruru as a witness and now are having to make an application to deem her hostile.
That particular problem is not of any real relevance to the Court’s decision as to whether Ms Ruru should be deemed to be hostile.

[18] Having concluded that Ms Ruru was hostile and that leave to cross-examine her should be granted, the Judge went on to indicate that the cross-examination of the video statement should be confined to what is recorded on the video corresponding to what is referred to in the passage from the interview set out in para [7] above.

[19] When Ms Ruru was cross-examined by the prosecutor after the Judge’s ruling she was taken back to the discussion with Constable Wendy Wright on the afternoon of13 July:-

And you told Constable Wright did you not that the person who smashed his way into the TAB was Zion King...oh well I thought it, at that time I thought it was but I’m just um thinging [sic] that I don’t think it was at the present moment.

Shortly afterwards, and rather confusingly, there was this exchange:-

Do you remember Constable Wright asking you and what happened when you got round to the back of the shops...yeah.
Do you remember replying, I just saw this fella walking and then he stopped me...yeah.
Okay.and the Constable then asked you what fella remember her asking that...yeah I didn’t know at the time who it was.
Well didn’t you reply Zion King...nah cos I didn’t know who it was at the time.

[20] Counsel then played part of the video.Mr Coles (who, as we have indicated,was not counsel at trial) was under the impression that the portion of the video played included the entire passage set out in para [7] hereof.Mr Pike, after consultation with the prosecutor, contended that the true position was that only that part of the interview which we have italicised was played.Mr Coles invited us to call for a report from the trial Judge on the point.For reasons which will become apparent, we think this is unnecessary.

[21] Cross-examination by the prosecutor then continued:-

Well Miss Ruru you told us just before that you hadn’t told Constable Wright that you now agree that you told Constable Wright that the person out the back of the shops was Zion King;you said it didn’t you we just saw it and heard it...yes.
Right and it was him wasn’t it...I don’t know I was just I don’t know.
Well the Constable wasn’t putting you under any pressure there was she...oh I felt like I was under pressure.
You told us before the break that you couldn’t remember what this person was wearing that wasn’t true was it...oh well the video was played at that time but at this time I can’t recall.
Well, wearing a green jacket, rain jacket, black shorts...that’s what I said green and black.
And that’s what Zion was wearing wasn’t he...yeah.
You went on for many, many more minutes didn’t you using Zion’s name...yes.
And you weren’t in any doubt on the 13^th of July who the person was were you...no.
In fact you told Constable Wright that Zion offered you money if you’d get Peter to open up the back door, you told Constable Wright that didn’t you...yes.
Right.you didn’t have any reason to lie about Zion being involved on the 13^th of July last year did you...no.
No and on the 13^th of July last year you were telling the truth weren’t you...yes.

[22] In cross-examination the appellant’s then counsel took Ms Ruru to her narrative of events as set out in her original statement.In cross-examination Ms Ruru claimed that she did not know the person who broke in and asserted it was not Zion King.

[23] There was no re-examination by the prosecutor nor any questions from the Judge.

[24] The next morning, the events of the first day of the trial were reported in the local paper in this way:-

Accused turns star witness
In a bizarre twist yesterday a Napier woman accused of aggravated robbery walked from the dock and straight into the witness box to give evidence for the Crown.
Jurors in the Napier District Court trial looked puzzled as Lena Ruru, 31, who only hours earlier pleaded not guilty to aggravated robbery and burglary took the stand.
Earlier, the Crown alleged Ruru had conspired with Zion King, 42, unemployed – who is also charged with aggravated robbery and burglary – to rob Maraenui’s Golden Chance TAB about midnight on July 13 last year.
Ruru was at the TAB at the time King allegedly smashed through a glass door with a metal pipe and robbed TAB owner Charles Pinfold of $3800.
Crown prosecutor Russell Collins said Ruru’s role was to trick Mr Pinfold into opening a back door giving King access to the casino.
Ruru claimed she was not part of any robbery conspiracy and had gone to the back entrance to meet Mr Pinfold for sexual favours in exchange for cigarettes.
Ruru’s new role yesterday followed Judge Richard Watson’s decision to rule a video taped interview she gave to police inadmissible after an application by defence lawyer Nigel Hewat.
The decision effectively crippled the Crown’s case against her and she was discharged.
Mr Collins then summoned a reluctant Ruru to give evidence against King.
She said she left the casino at midnight through the front entrance and walked to the back to meet Mr Pinfold where she saw a man.
She initially denied knowing who the man was but later confirmed it was King.
Defence lawyer Phillip Jensen told the jury King could not have been involved in the robbery because he was at a 50^th birthday party at the time it occurred.
The trial is expected to finish tomorrow.

Defence counsel did not invite the Judge to declare a mistrial.

[25] The appellant did not give evidence but advanced a defence of alibi.In support of this defence he called Mr Johnny Taumoko who told the jury that at the time of the robbery the appellant had been at a party with him.

[26] In his summing up, the trial Judge referred to the evidence of Ms Ruru:-

... When she began giving her evidence it became apparent that she was deliberately not cooperating with the Crown Prosecutor who had called her and was clearly reluctant to answer truthfully the questions that he had put to her. You will recall there was an application made to me and I declared her to be what we call a hostile witness and I gave the Crown Prosecutor permission to cross-examine her on a video statement that she had previously made to Constable Wright in connection with this case.
You will recall that during the course of her evidence you were shown part of that video statement which had recorded what she had told Constable Wright.And those matters about what she had told Constable Wright were covered by defence counsel, Mr Jensen, in his final address to you and I do not want to reiterate those again other than to say you will recall that when she was giving her evidence in chief she did say that on the 13^th of July last year when she was being interviewed by Constable Wright, “You were telling the truth weren’t you”, to which she said “yes”.
Subsequently of course she was cross examined and referred to earlier written statements that she had given to Constable Wright and that evidence was also read to you by Mr Jensen as part of his concerns about her evidence and again it is probably fair for me to just go back to you where she said towards the end of that cross-examination in answer to a question as to whether she knew the person at the back of the TAB was “do you know who that person was?”“No”.“Are you telling us the truth about that?”“Yes”.“Are you telling us the truth?”“Yes”.
It will of course be up to you to decide what part or parts of her evidence you will accept or reject.In assessing whether you regard her as being in part a truthful or reliable witness, you are entitled to take into account that she has said different things in her evidence before you and different things in her statement.How much weight you put on that and what part or part of her evidence you accept is entirely a matter for you as a jury so it is going to be for you to determine how you regard Lena Ruru as a witness, whether you regard her as reliable, whether you can accept all or any part of her evidence or whether you simply just put her evidence to one side and you are entitled to adopt any one of those three courses.But of course I must caution you in relation to her evidence because of what we know clearly are conflicts in what she has said on oath in this Court.
The Crown in its final address to you did say in relation to her evidence however, that you should look carefully at what happened that particular night, how it happened and then consider addressing this matter by way of using your simple common sense as to where she was and why she was possibly there, and whether you can draw appropriate conclusions that she did know Zion King.
Counsel for the defence simply says not so.If you accept that she was at the back of the TAB as she seems to have been, then she could well have been there for reasons of buying cigarettes with possibly sexual favours as was mentioned.But whatever, it is suggested by defence counsel that her evidence may be regarded by you as to unreliable as you would just simply want to put it to one side.
If you were to accept her evidence that the person she did identify at the scene was Zion King, then the law does require me to warn you of a special need for care before relying on identification evidence as a basis of conviction. The reason for that is that it has been shown it is quite possible for a witness in fact to be mistaken as to an identification, bearing in mind that sometimes we may all make mistakes in thinking that we recognise people, even those who we know well.That is not to say you cannot necessarily rely on identification evidence, of course you may, but you need to be careful in deciding whether that evidence is good enough to be relied on.So can I suggest to you that you think about the circumstances under which Lena Ruru and in part Peter Pinfold saw the person at the time and consider for instance how long did each of those people have the person under observation, at what distance, the lighting.Was there anything physically impeding observation?Had that person seen the witness before?If that person knew the witness, how well?Was there anything about the situation which would cause that particular person to take a particular note about anything in relation to a witness?

The grounds of appeal

[27] For the appellant, Mr Coles advanced the following broad arguments:-

1. The Crown should not have been permitted to call Ms Ruru as a witness.

2. The Judge should have required Ms Ruru to receive legal advice prior to giving evidence.

3. The Judge should not have permitted Ms Ruru to be cross-examined on her video interview.

4. Defence counsel made a radical mistake in not seeking a mistrial after it became apparent that Ms Ruru would be called as a Crown witness and again after the newspaper report appeared in the local paper.

5. The Judge’s treatment in his summing up of the evidence of Ms Ruru was inadequate.

[28] Mr Coles sought to rely on the cumulative effect of the matters about which he complained.

[29] We agree that it is the cumulative effect that matters but that each of his arguments requires separate consideration.

The appellant’s first contention:The Crown should not have been permitted to call Ms Ruru as a witness

[30] It is well-established that the Crown ought not to call a witness known to be hostile simply for the purpose of creating a situation in which a declaration of hostility can be made and an otherwise inadmissible prior statement made by the witness can be put before the Jury, see for instance R v O’Brien (2000) 18 CRNZ 610.Mr Coles sought to invoke this principle in support of his argument that the Crown ought not to have been permitted to call Ms Ruru as a witness.

[31] We see this argument as misconceived.

[32] The O’Brien principle is of application where the hostile witness can be expected simply to repudiate the prior statement on which the Crown relies.Mr Coles provided no evidential basis for the contention that the prosecutor ought to have known that Ms Ruru was going to renege on the account of events which she had given to the police.In saying this we are conscious of the remarks made by the Judge in his ruling giving leave to cross-examine Ms Ruru which we have set out in para [17] above.It is, however, important to note that the prosecutor was not seeking to extract from Ms Ruru admissions as to her own complicity in the offending. Rather, he was seeking to obtain from her acknowledgments which supported the Crown theory that the actual robber was the appellant.We note that there was nothing in the evidence which Ms Ruru gave on the voir dire in relation to the admissibility of her statement to suggest that she was denying the truth of what she had told Constable Wright when interviewed.

[33] In any event, in her responses to questions from the prosecutor, Ms Ruru eventually accepted that the relevant part of her video interview was accurate.By embracing it in this way, she rendered the relevant content admissible. The impact of that evidence was much reduced given what she said in cross-examination, but that goes to weight and not admissibility

[34] Mr Coles pointed to Ms Ruru’s intellectual limitations and the evolution of her statements and suggested that these meant that she was in special need of protection.Indeed, running through much of the submissions made by Mr Coles was the argument that Ms Ruru’s rights had been breached and that this provided the appellant with a legitimate basis for challenging his conviction.As will be apparent, we are unimpressed by this line of argument.More particularly,however, we are of the view that whatever Ms Ruru’s intellectual limitations or other mental health difficulties may have been, they were not such as to disqualify her as a witness.Nor do we see any element of unfairness in requiring her (as a witness to a serious robbery) to give evidence about that robbery.

The appellant’s second contention:The Judge should have required Ms Ruru to receive legal advice prior to giving evidence

[35] Mr Coles argued that the Judge ought to have ensured that Ms Ruru had access to independent legal advice once it became apparent that the Crown intended to call her as a witness.This contention seems to have been based on the risk of self-incrimination which Ms Ruru faced and was also explicitly put forward in reliance on s25(d) New Zealand Bill of Rights Act 1990.

[36] It is unusual (although certainly not unknown) for Judges to advise witnesses to take legal advice before giving evidence.Was there anything about the facts of this case which would have warranted the Judge giving her such advice?

[37] Ms Ruru had been legally advised up to the point when the Judge discharged her under s347.Her counsel had been aware, prior to the admissibility argument, that the Crown intended to call her as a witness if her admissions were ruled inadmissible.

[38] Given that the s347 discharge operated as an acquittal, she was not exposed to criminal prosecution in relation to the robbery itself if she gave evidence in accordance with the statement she had given to the police.

[39] The risk that she might face prosecution for perjury if she were to give evidence which was not consistent with what she had previously said (a risk also relied on by Mr Coles) is similar to the risk which all witnesses face.Indeed, if anything, the risk was somewhat less than normal as it is difficult to see how the police could have relied on her video interview in a perjury prosecution given the Judge’s ruling as to its inadmissibility.

[40] Mr Coles contended that, by giving evidence, Ms Ruru exposed herself to the prospect of being prosecuted for attempting to defeat the course of justice in relation to the first statement she made to the police.This may be so,although this argument is extremely theoretical.When Ms Ruru’s made her exculpatory statement to Constable Wright her primary purpose was, presumably, to avoid prosecution rather than to defeat the course of justice. The members of this Court have never heard of a case in which a person in the position of Ms Ruru has been prosecuted for attempting to defeat the course of justice in relation to an initial exculpatory statement.Further, risks of the sort identified by Mr Coles are likely to be present in any case where a witness who was initially uncooperative with the police later gives evidence implicating the accused.The collective experience of the members of the Court is that it is not customary for a self-incrimination warning to be given to such a witness.

[41] In those circumstances, the risk of prosecution in relation to the first statement which Ms Ruru made to the police was so remote that we regard it as not warranting a warning.Further, even if, contrary to our view, a warning was appropriate, it is trite that the failure to give such a warning is of no avail to an accused, see for instance Cross on Evidence, New Zealand Edition, para 10.16.

[42] So, to the extent to which the appellant’s contention rests on the risk of self-incrimination by Ms Ruru, we see it as unsound.

[43] Equally unsound was the reliance Mr Coles placed on s25(d) New Zealand Bill of Rights Act.That section provides:-

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
...
(d)The right not to be compelled to be a witness or to confess guilt:

At the time she gave evidence Ms Ruru was not charged with an offence.The section, therefore, had no application to her.

The appellant’s third contention: The Judge should not have permitted Ms Ruru to be cross-examined on her video interview

[44] In support of this argument Mr Coles made two points:-

1. Ms Ruru was not hostile; and

2. It was contrary to principle to allow Ms Ruru to be cross-examined on her video interview given that the Judge had ruled it inadmissible.

[45] Mr Coles sought to persuade us that the ruling granting leave to the prosecutor to cross-examine Ms Ruru was wrong as she had not, to that point, displayed hostility.

[46] We disagree.In her initial statement to the police Ms Ruru did not mention seeing a man in the vicinity of the TAB.In her evidence-in-chief she initially sought to leave open the possibility that the person outside was female.Overall, her evidence was so radically different from what she told Constable Wright on the video interview as to render the conclusion that she was hostile practically inevitable.The Judge was perfectly entitled to conclude, as he did, that Ms Ruru was lying and those lies were, in context, sufficient evidence of hostility for him to grant leave to cross-examine.

[47] Mr Coles’ second point was that there was an inconsistency between the Judge ruling inadmissible the statement made by Ms Ruru but then permitting her to be cross-examined on it.

[48] The challenge to the admissibility of the interview was based on s23(1)(b), New Zealand Bill of Rights Act 1990.Constable Wright had said in evidence that, before the interview began, Ms Ruru had been given the standard caution and advised of her entitlements under the New Zealand Bill of Rights Act.Ms Ruru (who is 31) would appear to be a little slow and the interviewing police officer recognised this.She claimed that she gave Ms Ruru the sort of explanation of her rights that she would normally give to a child under 17.The Judge had some reservations about this.In light of these reservations and what was recorded once the video interview commenced, he was not satisfied that the interviewing officer had both brought home to Ms Ruru, in terms she could understand, just what her rights were and given her a fair opportunity to exercise those rights.There is no suggestion in the judgment that the statement was itself unreliable.

[49] We are prepared to accept, for the purposes of this case, that where a statement made by an accused person to the police is held to be inadmissible, the Crown may not generally use that statement to cross-examine the accused should he or she later give evidence.The authorities on this issue (which should not be regarded as completely settled) are reviewed in R v Paparahi (1993) 10 CRNZ 293.There is no point in us discussing this question in any detail because, by the time Ms Ruru was cross-examined on her statement, she was no longer a defendant.

[50] In advancing the argument that the Judge ought not to have permitted Ms Ruru to be cross-examined on her video statement, Mr Coles was again invoking on behalf of the appellant a complaint that Ms Ruru’s rights under the New Zealand Bill of Rights Act had been infringed. But we are satisfied that it is not open to the appellant in this case to complain that Ms Ruru’s entitlement under the New Zealand Bill of Rights Act had been infringed, see R v Bruhns (1994) 11 CRNZ 656 and R v Wilson [1994] 3 NZLR 257.He simply does not have standing to do so.

[51] In any event we are not persuaded that the Judge breached Ms Ruru’s entitlements under the New Zealand Bill of Rights Act when he permitted her to be cross-examined on the statement.To the extent that her rights under the New Zealand Bill of Rights Act had been breached when she was interviewed, the dismissal of the charges of aggravated robbery and aggravated burglary which she faced as a result of what she said seems to us to be an entirely adequate response.With the dismissal of those charges, she was no longer in peril of criminal prosecution (at least in substance).Her position in reality was simply that of a witness.We do not see Ms Ruru’s entitlements under the New Zealand Bill of Rights Act (and any associated breach of them by the police) as extending to providing her with an immunity from cross-examination.

The appellant’s fourth contention:Defence counsel made a radical mistake in that he did not seek a mistrial after it became apparent that Ms Ruru would be called as a Crown witness and again after the newspaper report appeared in the local paper

[52] This contention was in two parts.In the course of the hearing before us Mr Coles abandoned the first leg of this argument (ie the contention that defence counsel should have sought a mistrial once it became apparent that Ms Ruru would be called as a Crown witness).He did, however, contend that a mistrial should have been sought after the newspaper article appeared.

[53] The newspaper article was unfortunate in that it did reveal to such jurors as may have read it what had happened in Court at a time when the jury was excluded.It served to explain to such jurors just why the charges against Ms Ruru had been dismissed.There is also some element (albeit comparatively slight) of editorial comment in the article, the description of Ms Ruru as a “star” witness and the reference to her being “reluctant”.

[54] How significant was all of this?

[55] That the Crown had originally contended that Ms Ruru was a party to the offending would have been perfectly obvious to the jury (given that she had been arraigned in their presence).That she had been discharged by the Judge was likewise obvious to the jurors (and conceivably the reasons for this may have been explained to the jury).Whether the jury would have been able to infer from what they saw and heard in Court that this was associated with a statement she had made being ruled inadmissible is debatable (and this may, in part, depend upon how much of Ms Ruru’s video interview was played to the jury). In that context, the article’s prejudicial effect (if it had any) was limited to this consideration: jurors who learnt that Ms Ruru had admitted her guilt may, for this reason, have attached more weight to her identification of the appellant as the robber.Given, however, that it was obvious to the jury that Ms Ruru knew the appellant and that the jury was also aware that she had been initially charged as a party to the offence, such additional prejudicial effect as may have been caused by the article, if any, was very limited.

[56] As for the editorial comments, the description of Ms Ruru as a “star” witness was ludicrous given her see-saw performance in the witness box whereas the comment that she was “reluctant”, was plainly correct.We see neither comment as having been likely to affect the way in which the jury approached the case against the appellant.

[57] The prejudice, if any, associated with publication of the article was comparatively limited.There are a number of possible reasons why trial counsel may have properly taken the view that a mistrial would not advance the appellant’s cause.Perhaps counsel took the view that Ms Ruru’s performance in the witness box had been so lamentable that it might have been counter-productive for the appellant to obtain a mistrial, particularly if he thought that Ms Ruru might give evidence at the retrial in accordance with her video interview statement.Perhaps, in any event, enough had been said in the presence of the jury as to why Ms Ruru had been discharged for counsel to have recognised that there had been no prejudicial effect associated with the publication of the article.In the absence of detailed enquiry (which could only be at the suit of the appellant) into counsel’s reasons for not seeking a mistrial, it would not be right for us to conclude that counsel had made a radical mistake in not seeking such an order.

[58] Prior to the hearing of the appeal the appellant’s trial counsel was asked, via a letter from Mr Coles, why he did not seek a mistrial.Trial counsel did swear an affidavit but in that affidavit he did not specifically address the question why he did not seek a mistrial.Counsel for the appellant did not seek to cross-examine trial counsel on his affidavit.

[59] As well, it is perfectly apparent from what we have said that an application to the Judge for an order directing a mistrial would, in all probability, not have succeeded.

The appellant’s fifth contention:The Judge’s treatment in his summing up of the evidence of Ms Ruru was inadequate

[60] Mr Coles made a number of complaints about the way in which the Judge summed up with reference to Ms Ruru.

[61] He referred to the Judge’s comment:-

When she began giving her evidence it became apparent that she was deliberately not cooperating with the Crown prosecutor who had called her and was clearly reluctant to answer truthfully the questions that he had put to her.

That comment was plainly open to the Judge given the way in which Ms Ruru initially gave evidence.

[62] Mr Coles complained that the Judge did not direct the jury in terms of s12C of the Evidence Act 1908, to the effect that Ms Ruru may have had a purpose of her own to serve in giving evidence and that her evidence should, accordingly, be approached with special caution.We see no basis for criticising the Judge for not giving such a direction.Indeed, had such a direction been given, it would, most likely, have put into the mind of the jury the idea that Ms Ruru’s reluctance to give evidence may have been associated with fear of the appellant.The Judge did, of course, caution the jury in relation to Ms Ruru’s evidence given the inconsistency in what she said in Court.

[63] Finally, Mr Coles complained that the Judge’s warning as to identification was inadequate to the occasion given that the part of the video transcript which he maintained was played to Ms Ruru and which she adopted as being correct referred to a voice identification.For present purposes we are prepared to assume that Mr Coles is right as to which portion of the video was played.Mr Coles also noted that in parts of the video which were not played Ms Ruru referred to having seen the appellant’s face and indicated that his tattoos had been removed.At the time of the robbery the appellant did have tattoos on his face.Clearly if the case had turned on Ms Ruru’s identification of the appellant as the robber, there were difficulties with her evidence which could have been exploited in cross-examination and, depending on the extent to which this happened, would have required a careful direction which was considerably more elaborate than that provided by the Judge.

[64] Section 344D, Crimes Act 1961 provides:-

344DJury to be warned where principal evidence relates to identification
(1) Where in any proceedings before a jury the case against the accused depends wholly or substantially on the correctness of one or more visual identifications of him, the Judge shall warn the jury of the special need for caution before finding the accused guilty in reliance on the correctness of any such identification.
(2)The warning need not be in any particular words but shall—
(a)Include the reason for the warning; and
(b)Alert the jury to the possibility that a mistaken witness may be convincing; and
(c)Where there is more than one identification witness, advert to the possibility that all of them may be mistaken.

[65] Although referable specific only to “visual” identification the section plainly applies, and no doubt with added force, to identification of voices.But it is nonetheless far from clear that the section was applicable even in spirit to Ms Ruru’s identification of the appellant as the Crown case does not seem to us to have depended “wholly or substantially” on Ms Ruru’s evidence.We suspect that the Judge gave the warning out of an abundance of caution.

[66] It should be noted that the Judge’s direction did in fact satisfy the strict requirements of s344D albeit that it was not as full as would have been appropriate if Ms Ruru’s identification had been a more significant factor in the case.We also note that the defence case as advanced through cross-examination was not that Ms Ruru had honestly but mistakenly identified the appellant as a robber but rather that the appellant was not the robber, a proposition which she accepted in cross-examination.

[67] Accordingly, in all the circumstances, a full identification warning of the sort contended for by Mr Coles would have been disproportionate to the occasion.

Disposition

[68] As will be apparent from what we have said, we see nothing of substance in any of the points made by Mr Coles.As well, we do not regard their cumulative effect as being of any moment.

[69] The appeal is accordingly dismissed.

Solicitors:

Peter S Coles, Palmerston North, for Appellant

Crown Law Office, Wellington

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Court of Appeal of New Zealand

R v ZION HIORA KING [2003] NZCA 292 (15 December 2003)