NZLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand
You are here:  NZLII >> Databases >> Court of Appeal of New Zealand >> 2005 >> [2005] NZCA 200

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

KINGI v R [2005] NZCA 200 (10 August 2005)

Last Updated: 2 September 2005

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORTS OR LAW DIGESTS PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA122/05


THE QUEEN



v



PAUL TAKANA KINGI

Hearing: 20 July 2005

Court: Glazebrook, Randerson and Goddard JJ

Counsel: R B Squire QC and P S Coles for Appellant
E M Thomas for Crown

Judgment: 10 August 2005

JUDGMENT OF THE COURT
A The appeal against conviction is allowed, the conviction set aside and a new trial ordered.
B Not to be published in news media or on the internet or other publicly accessible database until final disposition of trial. Publication in law reports or law digests permitted.
____________________________________________________________________

REASONS

(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
Background facts [4]
The appellant’s submissions on the conviction appeal [9]

Submissions as to the summing up [10]
Submissions as to the application to adduce fresh evidence [18]

The Crown’s submissions on the appeal against conviction [24]

Submissions on summing up [24]
Submissions on the application to adduce fresh evidence [30]

The evidence at trial [32]
The proposed new evidence [44]
The summing up [46]

Directions as to the onus of proof [46]
Use of the phrase "bodily harm" [52]
Use of the phrase "reasonable balance" [53]
Directions as to force [54]

Discussion of conviction appeal [55]

The summing up [55]
The application to adduce fresh evidence [67]

Sentence appeal [74]

Result [75]

Introduction

[1]On 3 March 2005 the appellant, Mr Paul Kingi, was convicted, after a jury trial before MacKenzie J, of the manslaughter of his uncle, Mr Rangiwananga Hawea Kingi (Mr Wananga Kingi). Mr Wananga Kingi died after the appellant struck him with a closed fist on the right side of his jaw, causing Mr Wananga Kingi to fall backwards. The rear of his head struck the concrete floor and he suffered head injuries from which he died two days later.
[2]The appellant was found not guilty on a charge of assault on Mr Reihana Kingi (Mr Wananga Kingi’s son and the appellant’s cousin).
[3]On 7 April 2005 the appellant was sentenced to two and a half years imprisonment. He now appeals against both his conviction and sentence. The appellant also applies to adduce fresh evidence on appeal. The evidence tendered falls into two categories. The first is evidence relating to a family meeting. At that meeting it is alleged that Mr Reihana Kingi, who was a Crown witness, acknowledged that he had not seen the events which led to his father’s death, despite his evidence to the contrary at the preliminary hearing and at trial. The second category is evidence about an experiment which attempted to re-enact the appellant’s blow to the deceased.

Background facts

[4]In early January 2004, a dispute arose over a bull that Mr Wananga Kingi had lent to his nephew, the appellant’s brother, Mr Damien Kingi. The bull had not been returned at the agreed time, despite several requests. On the morning of 6 January, Mr Wananga Kingi visited Mr Damien Kingi to enquire as to the whereabouts of the bull. He spoke with Mr Leslie Rattray, the farmhand. An argument developed and Mr Wananga Kingi assaulted Mr Rattray by punching him. Mr Wananga Kingi located the bull in a nearby paddock and took it back to his property.
[5]That evening the appellant, Mr Rongo Kingi (the appellant’s father), Mr Damien Kingi and Mr Rattray visited Mr Wananga Kingi at his home to discuss the bull and the assault on Mr Rattray. A heated argument commenced in the carport concerning the bull, as well as general family issues. The argument principally involved Mr Rongo Kingi and Mr Wananga Kingi but there was also a verbal confrontation between Mr Damien Kingi and Mr Wananga Kingi, in the course of which Mr Wananga Kingi approached Mr Damien Kingi, stood some three inches in front of him and told Mr Damien Kingi to hit him.
[6]At the time of the latter confrontation, the appellant intervened by getting off the bonnet of the car where he had been sitting, moving towards his uncle and remarking that it was only a bull. Mr Wananga Kingi advanced towards the appellant, told him to keep out of it and that he (Mr Wananga Kingi) was not scared of the appellant. It was at this point that the appellant struck Mr Wananga Kingi with a closed fist, leading to his fall onto the concrete floor and ultimate death. There were different versions given by the various witnesses at trial as to the manner in which he fell. Some witnesses said he just collapsed to the ground, some said he fell backwards and, as indicated below, two witnesses said he flew backwards, his feet leaving the ground.
[7]Mr Wananga Kingi was 60 years old at the time of his death, weighed 92 kilograms and was 178 centimetres tall. The appellant is 36 years old, 189 centimetres in height and weighed approximately 130 kilograms at the time of his uncle’s death. The appellant is a professional K1 fighter. He had fought in a K1 boxing bout in Japan on 31 December 2003, sustaining serious bruising to his legs in that bout. He may still have been suffering from the effects of those injuries on 6 January 2004.
[8]The following issues of fact were not in dispute at trial. First, the appellant did not dispute that he struck his uncle with a single blow. Secondly, he did not dispute that the blow caused his uncle to fall onto the concrete floor where he struck his head. Thirdly, the appellant did not dispute that his uncle died as a result of the head injuries he received when his head hit the concrete floor. The sole issue before the jury was whether the appellant was acting in self defence, in terms of s 48 of the Crimes Act 1961, when he struck his uncle. The appellant claimed that he perceived a movement from his uncle and that he reacted instinctively to meet the threat as he perceived it.

The appellant’s submissions on the conviction appeal

[9]The appeal against conviction is based on two main grounds:
(a) The trial Judge’s summing up in relation to the issue of self defence generally and the use of reasonable force in particular was wrong in law and insufficient in the circumstances of the case; and
(b) Admissible fresh evidence has been discovered which, had it been before the jury, would in all likelihood have resulted in a different verdict on the manslaughter charge.

Submissions as to the summing up

[10]Mr Squire QC, for the appellant, submitted that four aspects of the Judge’s summing up amounted to misdirection and/or insufficient direction of the jury.
[11]First, Mr Squire submitted that the trial judge, MacKenzie J, conveyed to the jury that, unless the appellant believed he was in danger of bodily harm, he was not entitled to use force to defend himself. Mr Squire submitted that, in directing the jury in these terms, the trial Judge overstated the requirements of s 48 of the Crimes Act. He submitted that the availability of the defence of self defence is not confined to situations where bodily injury is threatened or perceived; it is sufficient that an appellant believes that there is a need to defend himself from imminent attack – see R v Kneale [1998] 2 NZLR 169 at 178 and R v Howard (2003) 20 CRNZ 319 at [24].
[12]In Mr Squire’s submission, the appellant’s evidence at trial was that he believed he was about to be struck by the victim, Mr Wananga Kingi. He did not, in evidence, say that he believed he was in danger of bodily harm. Mr Squire submitted that, given the terms of the Judge’s direction, the jury may have concluded that this belief was not a sufficient reason for Mr Paul Kingi legitimately to use force in his own defence in terms of s 48. Mr Squire submitted further that the misdirection was repeated to the jury in answer to a question asked shortly before the jury returned with a verdict. This was made worse by the fact that the Judge did not repeat his discussion of the factual issues and the contentions of the parties on those issues, despite a request by defence counsel that he do so.
[13]Secondly, Mr Squire challenged the way in which the Judge conveyed to the jury the onus of proof on the issue of self defence. Mr Squire noted that it is incumbent on a trial Judge to give a clear direction that, in cases where the evidence discloses a plausible or credible narrative of self defence, an accused must be acquitted unless the prosecution proves, beyond reasonable doubt, that the accused was not acting in self-defence. Mr Squire conceded that MacKenzie J did give such a direction in this case. However, he submitted that the way in which the Judge discussed the cases for the Crown and the defence on the elements of self defence conveyed two things to the jury:
(a) the issue of what the appellant’s belief was as to the circumstances when he struck the deceased was to be determined according to whether the jury found the appellant’s evidence credible and reliable; and
(b) in relation to the issue of whether, in terms of what he believed the circumstances were, the appellant was acting to defend himself, there was an obligation on him to "make out" such a defence.
[14]Mr Squire submitted that the directions on these two critical issues may have conveyed to the jury that the appellant carried the onus of proving that he acted in self defence, or, at the least, left the jury confused about the onus of proof. An earlier general direction as to the onus of proof was not specifically related to the factual issues of this particular case, which increased the possibility that the jury may have been misled or confused.
[15]Thirdly, Mr Squire submitted that the direction as to the issue of reasonable force was a misdirection and/or an insufficient direction in the circumstances of the case. The Judge directed the jury that a "reasonable balance" was required between the threat of bodily harm as the appellant perceived it and the force he used to meet it. The Judge went on to direct the jury that if, measured in those terms, they were satisfied that the force used was excessive, the Crown would have excluded self defence. This direction was given in the context of a discussion of the appellant’s evidence that the blow was an instinctive reaction to his perception that he was about to be hit by the deceased. At trial, it was the appellant’s case that he had used the only means available to him as a defence, namely his hands, and that there was no time for a measured response.
[16]Mr Squire submitted that the words used in s 48 do not exclude the use of force which might not be seen to be in reasonable balance with the perceived threat. He submitted that the issue is whether the force used is reasonable in the circumstances as the appellant believed them to be – see Howard at [26]. He submitted that the introduction into that test of the concept of "reasonable balance" meant that there was a real danger that the jury’s consideration of the issue was focused on the objective balance as between the threat and the response, to the exclusion of their consideration of whether the force used was reasonable in the circumstances as the appellant believed them to be.
[17]Fourthly, Mr Squire submitted that MacKenzie J failed to direct the jury adequately on what was meant by the term "force". He submitted that it was important in the context of the case that the jury understood that the force used by the appellant did not include the unintended consequences of the blow. No such direction was given to the jury.

Submissions as to the application to adduce fresh evidence

[18]With regard to the application to adduce fresh evidence, Mr Squire acknowledged that the Court will normally require evidence to be fresh, in the sense it was not available at trial, and that it be credible and cogent, in the sense it might reasonably have led the jury to a different verdict at trial. However, he submitted that the overriding test is that the introduction of the evidence is in the interests of justice: R v Bain [2004] 1 NZLR 638 at [22].
[19]In relation to the evidence of the family meeting, Mr Squire acknowledged that evidence was called at trial that Mr Reihana Kingi and another Crown witness, Mr Mark Ormsby, a young man who lived with the deceased and his family, had told witnesses that they had not in fact witnessed the relevant events. However, Mr Squire submitted that counsel were not told of the family meeting or that Mr Reihana Kingi had said at the meeting what the deponents claim in their affidavits. The appellant was not present at the meeting. Mr Squire submitted therefore that the evidence of the meeting is fresh evidence because the evidence was not available at trial and could not, with reasonable diligence, have been discovered.
[20]Mr Squire also submitted that this evidence is credible and reliable. He submitted that there is consistency between the deponents and also substantial consistency between the deponents and the witnesses who gave evidence at trial. Mr Squire submitted further that the evidence was highly cogent. In his submission, the credibility of Mr Reihana Kingi, Ms Raiha Wharewhiti (Mr Reihana Kingi’s sister), and Mr Ormsby was critical to the Crown case because, without their evidence, the Crown had no foundation for:
(a) the contention that the appellant had been angered at what Mr Wananga Kingi had said to him and had simply walked across the carport and punched him in the head. The Crown opened their case on this contention and also put it to the appellant in cross-examination. This evidence formed the foundation for the Crown’s submission to the jury that the appellant had not acted in self-defence at all;
(b) the contention that the blow Mr Wananga Kingi was struck caused him to come up off the ground and fly backwards. This was an important aspect of the Crown’s submission to the jury that, if the appellant had acted in self-defence, nonetheless the force he used in striking Mr Wananga Kingi was more than was reasonable in the circumstances.
[21]Although there was evidence tendered at trial to similar effect, this new evidence is of statements made to an assembled group on a solemn occasion, rather than statements made to individuals in more casual circumstances. In addition, unlike the other occasions, the statements at the family meeting were made in the presence of Ms Raiha Wharewhiti, thus, in Mr Squire’s submissions, providing a foundation for cross-examination alleging collusion with her brother with regard to his evidence. Ms Wharewhiti was not cross-examined on the possibility of collusion at trial as Mr Squire considered there was insufficient foundation to do so.
[22]The second category of evidence tendered is evidence of an experiment conducted by various boxing experts and willing participants. The experiment sought to re-enact the appellant’s blow to Mr Wananga Kingi, as described by the Crown witnesses in evidence. Mr Squire submitted that the experiment shows that the result of the appellant’s blow to the deceased, as described by Mr Reihana Kingi and by Ms Raiha Wharewhiti, could not have occurred, given the physical dimensions of the deceased. He submitted, therefore, that the evidence of the experiment is relevant to the material issue of whether the force used was beyond what was reasonable in the circumstances as perceived by the appellant.
[23]Mr Squire submitted that the issue of whether or not the appellant’s blow caused the deceased to be lifted off his feet and to fly backwards was always regarded as a critical issue for the defence. He conceded that the experiment could have been carried out before trial and the evidence of it led at trial, but said that counsel did not then contemplate conducting an experiment such as this. He therefore conceded that it may not be regarded as "fresh" evidence, because it was theoretically available at trial. However, he submitted that this Court may nonetheless admit the evidence if it is in the interests of justice to do so. Mr Squire submitted that it was in the interests of justice to admit the evidence as, if it had been before the jury, it might reasonably have led the jury to return a different verdict in the count of manslaughter, given that the evidence of how the deceased fell after being struck by the appellant was the subject of contradictory evidence at trial.

The Crown’s submissions on the appeal against conviction

Submissions on the summing up

[24]With regard to the criticism of the Judge’s reference to an appreciation of "bodily harm", Mr Thomas submitted that this did not amount to a misdirection or an insufficient direction in the context of the case. First, he submitted that it is appropriate that directions to a jury are given in a manner that is consistent with the context in which the issue arises. Here, the Judge was referring to the possible action which the appellant was defending himself against in delivering the blow. Mr Thomas accepted that the appellant did not describe his fear as being a fear of the bodily harm which he could incur if Mr Wananga Kingi did strike him. However, the Crown submitted that a fear of resulting bodily harm is implicit in the fear of being struck. He also submitted that the appellant, as someone who is accustomed to being struck and receiving bodily harm, can, in any event, be distinguished from an ordinary offender. Mr Thomas also submitted that the use of the term "bodily harm" was not the main ground for this Court allowing the appeal in R v Howard. It was the misdirection relating to "spite and anger" which most concerned the Court in that case.
[25]With respect to the allegation that the Judge’s directions lessened or shifted the burden of proof in relation to self defence, Mr Thomas submitted that, when looked at as a whole, the summing up properly dealt with the onus of proof. He submitted that, although the Judge directed the jury that they needed to reach some decision as to whether or not they found the appellant’s evidence credible and reliable, that comment was made in the context of directing the jury that they needed to assess the circumstances as the appellant perceived them to be. Further, Mr Thomas observed that the Judge had twice stressed the need to consider all of the evidence from all of the witnesses in assessing this question.
[26]In response to Mr Squire’s submission about the words "made out or not", Mr Thomas submitted that these words were used in the context of discussing whether or not the appellant was acting in defence of himself. They were not used in the context of discussing whether or not the defence itself was made out, or in the context of a discussion or direction relating to the onus of proof. Mr Thomas conceded that the words were nevertheless unfortunate. He submitted, however, that, when looked at in the context of the summing up as a whole, the jury must have understood that the Crown had the onus of proof. Mr Thomas referred to a number of points in the summing up where the Judge discussed the onus of proof. Specifically:
(a) The Judge gave the standard directions on the burden and standard of proof;
(b) He discussed the effect of the appellant giving evidence and how that affects the burden of proof;
(c) He explained the requirement for the Crown to prove the absence of self defence;
(d) He discussed the elements of self defence generally;
(e) He discussed the elements of the charge which needed to be proved by the Crown;
(f) He reiterated that the Crown needed to prove that the appellant was not acting in self defence in relation to the second count in the indictment.
[27]With respect to the Judge’s use of the term "reasonable balance", Mr Thomas submitted that this must be considered in the context of the direction which was being given at the time and the summing up as a whole. When taken as a whole, he submitted that the direction would have made it clear to the jury that they were required to look at the force adopted objectively in the circumstances as they were perceived by the appellant.
[28]As to the Judge’s failure to define "force", and, in particular, point out that it did not include the unintended consequences of the blow, Mr Thomas submitted that no such specific direction was required. He submitted that it was obvious from the way the case was run and from the summing up that the examination for this purpose was limited to the blow that was struck. In Mr Thomas’ submission, the Judge, in summing up, directed the jury’s attention to the force of the blow and the injuries suffered as a direct consequence of the blow itself, rather than the consequences that followed from the fall.
[29]In relation to all of the alleged failures as to how the Judge directed the jury on self defence, Mr Thomas submitted that these are matters of some subtlety. Any potential effect of any misdirection needs, in his submission, to be weighed against the circumstances of the case. Further, Mr Thomas submitted that it is significant that no issue was taken with the summing up by experienced defence counsel at the time, other than in relation to the question subsequently asked by the jury.

Submissions on the application to adduce fresh evidence

[30]With regard to the appellant’s application for the admission of "fresh" evidence of the family meeting, Mr Thomas submitted, first, that the evidence is not fresh. He noted that, at trial, the appellant and his counsel were aware that Mr Reihana Kingi was alleged to have told others that he had not witnessed the events leading to his uncle’s death. Mr Thomas submitted, secondly, that the evidence is not cogent, in the sense that, if given along with the other evidence at trial, it was unlikely that it would have led the jury to return a different verdict. He noted that the "fresh" evidence goes to the credibility of Mr Reihana Kingi, Ms Raiha Wharewhiti and Mr Ormsby, specifically to their assertion that Mr Kingi’s punch lifted the deceased off the ground. Mr Thomas submitted that whether or not the blow was sufficient to lift the deceased off his feet is unlikely to have influenced the jury’s finding that the force used was excessive, given the evidence of the Crown pathologist, Dr Sage, that the victim’s fall was a propelled fall.
[31]In relation to the evidence of the experiment, Mr Thomas submitted that this is neither fresh nor cogent evidence. The evidence is not fresh, he submitted, because it was available at the time of trial and deals with issues that were always at the centre of the defence’s case. Further, in Mr Thomas’ submission, the evidence is not cogent because identifying the exact degree of force that was employed would not have assisted the jury. He also submitted that the evidence is not cogent in the sense that it is based upon assumptions too far removed from the events in question to be of assistance. For example, the experiment assumed that the force used by the person playing the role of the appellant was the same or similar to the amount of force in fact used by the appellant. It also assumed that the apparatus used (a steel jaw) was able to replicate the sensation that the deceased felt when he was hit. Finally, the experiment assumed that the effect on the person playing the role of the deceased was the same as the effect was in fact on the deceased.

The evidence at trial

[32]It is worth, at this point, discussing the evidence given in court by Mr Ormsby, Mr Reihana Kingi and Ms Raiha Wharewhiti in more detail. We note that all three of these witnesses gave evidence about the events leading to Mr Wananga Kingi’s death. Mr Ormsby and Mr Reihana Kingi said that they were observing the events from Mr Kingi’s bedroom through a gap in the curtain. It is common ground that they would have been able to see the events, had they been looking through the window. Ms Raiha Wharewhiti said that she had, at the relevant time, been on the steps of the carport where the events took place.
[33]All three witnesses painted the appellant as the aggressor. Mr Reihana Kingi and Ms Raiha Wharewhiti also said that, after their father was hit, his feet left the floor and he was propelled backwards. For example, Mr Reihana Kingi’s evidence was:
Yes, Dad was just standg there like this (arms out, palms out) and then Paul sd "you’re fucking crap"
Where was Paul when he sd that? Leaning on the hood of his car witness his arms crossd
What happened then when Paul sd that? And then he just got up 3 or 4 steps and whack
When u say "and whack", what did you see? (pause – witness distressed) dad’s head just came flyg back and his feet came off the ground
Just need to go back a step You sd Paul walkd forward? Yep What did you see him do? He just walkd up left hand right there (indics clenchd left fist coming up and from the left then indicates -)
What pnt on yourself face did you indic? Rnd here
The chin and cheek area? Yep
On the rt hand side of your face? Yeh
And when it hit there what happened? His head sort of flew up liftd up so his feet came off the ground so his head was sort of takg the rest of his body back and it hit the concrete
[34]Ms Raiha Wharewhiti’s evidence was as follows:
Who ws standg ? paul, dad ws standg approximately 3 and a half mtrs, 3 metrs away from paul, he turnd to paul and sd come on im not afraid of u paul, at that stage paul ws walkg towards dad and dad ws standg feet apart, hands, palms open, hands open just standg through lkg at paul
With HIS HONOUR lve can I ask the witness to stand up and describe ? ... witness dems, his feet wr paralell
But apart us sd ? ... but apart but he ws in that position
Arms down elbows to waist hands out at slight angle palms upwards ? ... witness demos
Can u tell us whereabouts u wr at this point ? ... either on one of the steps or at the bottom of the steps
Tell us now wht happened then yr fath is in that positn ? ... paul walkd up to him and hit him
Hit who ? ... hit my dad, I just, dads hd went back, I just don’t know anor word to describe it except flew, he ddnt just fall, he came up off the ground and fell back
[35]Mr Ormsby’s evidence was as follows:
What happened then pls just take it slowly? Well um I think abt that time they were talkg abt the bull and Paul Kingi butted in and Wananga just sd to him keep out of it boy and Paul just sd what the efficient you wanna go too you old blah blah blah
Did he say what the efficient? Yeh
Or did he use the word? What the fuck you wanna go too
What happened then? And then he just got up off the car and walkd twds Wananga and Wananga was just – he just turnd round and sd you really think Im scared of you boy
Yes? And Wananga said I’m not scared of you and um yeh Paul was just walkg twds him like he had basketballs under his arms
Yes? And um Wananga sd if you wanna hit me and it makes you feel better do it so he just foldd his arms like that (across chest)
Who did? Wananga and Paul just up and hit him wi his left arm
Describ the hit for us? It was like a roundhouse blow to the rt hand side of his jaw
What happened then? Um Wananga just – it was him he just hit the deck knockd out cold
You say he hit the deck physically what actually happened – describ it to us? Well, shall I stand up cn I stand up
Perhaps just tell us in words first? Well Paul hit Wananga
Yes? And then I just seen Wananga his eyes close and he went straight back like that bang hit his head on the concrete
The movement you just did are u indicatg that he fell straight back? Straight back didn’t stumble or anything just straight back
And where were his arms what if anything were his arms doing when he went back? Wanangas he had them folded (across chest)
[36]As indicated above, there was evidence called at trial that Mr Reihana Kingi and Mr Ormsby had said at various times that they had not in fact seen the incident at all. When cross-examined about this evidence they denied that they had said what was alleged and said that they had seen what had happened. One of the witnesses who said that she had been told by Mr Reihana Kingi that he had not seen the incident was Ms Ransfield, the appellant’s sister Her evidence was that Mr Reihana Kingi had approached her at church. She said:
Wht ws the nxt contact u hd with reihana in any specific sense aft his fathrs death do you recall ? ... it ws the Sunday aft uncle hd been buried
Just tell the jury what happened and what u recall in relation to yourself contact with reihana tht day ? ... I ws seatd in the second pue in our sacrament rm at church reihana cm and sat nxt to me and I expressed how sorry I ws of the events that hd happened and he sd to me tht it ws ok that its an event that will bring [our] familys closr and I askd him if he sw what happened and he sd no cousin I ddnt and I sd so u ddnt see what happened to cous I ddnt it all happened so fast
[37]In cross-examination, Ms Ransfield was asked what made her ask Mr Reihana Kingi if he had seen the events in question. She answered that she did not know. She denied being mistaken or having misconstrued Mr Reihana Kingi’s answer. We remark that Ms Ransfield’s evidence does not necessarily throw doubt on whether Mr Reihana Kingi was watching from the window. However, it does throw doubt, if accepted, on his evidence as to the events leading to his father’s death.
[38]The other evidence on this topic at trial came from one of Mr Reihana Kingi’s sisters, Ms Aroha Horomona, who gave evidence by video link from Perth. Her evidence was that Mr Reihana Kingi had lived with her in Perth for a period in August 2004. While he was there, she had asked him one day to tell her about her father’s death. He told her that he had not seen the incident. Later, however, when she asked him to confirm what he had told her, he said that he had seen the incident. Her evidence was:
Tell us abt wht reihana sd to u aft u askd him for his versions of the events ? ... he hd a seizure that morning he ws recovg that even, told me he ws lyg down in his bedrm and that mark told hm that uncle rongo and [inaud] wr thr and that they wr argug with dad, he lkd out the wi to see whr e.body ws and then layd back down, ltr on he hrd a scream, mark told him that pual hd hit dad and he got off the bed put sm clothes on and went outside, when mark told him that he hit dad he thort nothing of it, he just sd he got up got dressd and went outside
Dd he say a.thing abt what happened when he went outside ? ... he sd when he got out the dr he went out through to stop dad from retaliating and paul hit him
Now a couple of weeks aft that discussn u hd witness him dd u have a further discussn wi reihana abt these sm events ? ... yes
And just tell us how that discussn cam abt ? ... my sistr pania cam up from bencubbin, and we wr talkg abt what happened wi dad and i sd to hr reihana told me, we wr talkg abt it and tania sd or i sd to tania reihana told me he ddnt see the punch, and the she lkd at me and questiond wht i sd and i calld reihana in and i sd to him reihana u told me u ddnt see the punch and then he sd no i dd and his story ws different from wht i hd initially been told
Apart from those 2 occans u told us abt, hv u had any further discussns with reihana abt these mttrs ? ... um, yes i hv
R those discussns wi reihana aft he returnd from giv evid at this trial is it ? ... no
[39]Ms Horomona was cross-examined about her close personal relationship with the appellant and her contact with Ms Ransfield and the appellant before giving evidence. There was also evidence from the appellant’s son, Mr Rongo Kingi, that Mr Ormsby had told him that he had not seen the events in the carport either. This conversation allegedly took place one night in the week of Mr Wananga Kingi’s funeral when Mr Rongo Kingi stayed the night and shared Mr Ormbsy’s bedroom.
[40]The evidence of Mr Reihana Kingi and his sister as to the effect of the blow can be seen as being corroborated to some extent by the evidence of the Crown pathologist, Dr Sage, as to the force of the blow and the nature of the victim’s fall. His opinion was that the fall must have been a propelled fall, as against a mere collapse or a fall backwards. His evidence was:
Now the? One more thing Less obvious but importantly, there are 2 indicatns that as well as havg effects of direct injury there are signs of acceleratn, deceleratn change seen as a characteristic pattern of tiny pinpoint haemorrhages in part of his brain stem and as one of the forms of bleedg within the head whi he manifests
Can u perhaps explain what an acceleratn deceleratn injury means? The problem when people are in motion is not so much that youre going quickly but that you slow down too quickly and when that happens the brain can move in relation to other parts of itself and in relation to its covg membranes Those tearing and stretchg forces will tear small nerve trunks and the small blood vessels whi accompany them so that we see the pinpoint haemorrhages as flags indicatg that nerve trunk tearing has occurrd Betw the brain surface and the overlyg membrane there are tiny veins called bridging veins that cross the space If the brain moves in reln to that membrane you can tear those veins and bleed into that space
We see signs of both of those changes in Mr Kingi
Now the constallation of combination of head injuries, both external to the rear of the head but more importantly internally – in yr experience wi head injuries, what sort of causes wd you expect to lead to that constellation? I think there are 3 things to consider First, is this the sort of injury you mt see in s/one who has merely collapsd and hit their head on the ground? While that mt well cause the scalp bruisg, it would be very rare for it to explain the fractures and extremely rare for it to giv the brain injuries that we see The 2nd possibility is that rath than collapsg in a heap s/one and falln b/wds like a tree and struck the back of their head on the ground Again, the pattern of injuries is such that yes this could have occurred, but the presence of the acceleratn deceleratn injuries as well as the others suggs that theres more movement force than would simply occur by a fall such as I describd The phrase that then goes wi the most likely explanation is that of a propelled fall so that as well as comg back and hittg his head he’s almost certainly movd across the ground at the same time
To put that in a practical context, when u say hes almost certainly movd across the grnd at the same time, what would that man in refce to a person’s feet and how they would move? Wi a propelled fall, that infers that the feet hav movd as well as the head you’ve been sent sprawling
[41]In cross-examination, Dr Sage made some further comments on the nature of the fall. He said:
At present the state of play, if you like, in pathology interpretation is that the acceleratn deceleratn injuries whi I describd do not happen or at least are extremely rare in a fall from a standing height but require an addnl element of propulsn and that is the reason that I have preferred the view that this is a propelled fall not just a fall from a standing height ...
[42]As the force of the blow Dr Sage had this to say:
Yes, Dr, Im not sugg to you that the blow was trivial all Im sugg to you is that bec of the differences as to how individuals bruise it is difficult to form any firm conclusions as to the force of the blow simply by lkg at the fact that bruisg has occurrd – would you agree wi that? Thats true to an extent The fine classificn of levls of force is clearly not possible because of individual variation but where as in this case there is a splitting or tearing wound as well as extensive bruisg then there is a safe inference that this resultd from a forceful blow
Well, I was going to come to that beca its a sep issue but once agn do you agree witness the proposn that like bruisg the extent to whi an individual is susceptible to havg a split of the skin arisg from a blunt instrument blow will vary again from individual to individual? Certainly
So again subject to the caveat that Im not suggestg this was a trivial blow those 2 factors make it difficult to draw any firm conclusions as to the force of the blow that was delivrd in this case do you ag wi that? Its certainly difficult to e.g. set up a scale of 1 to 10 and place it on that scale, but I believe its safe to use say a scale of 3, trivial forceful or extremely forceful and determine that this is a forceful blow
[43]The appellant’s evidence at trial on the events leading to Mr Wananga Kingi’s death was as follows:
Now I think bef we finished for the lunc break we go to the point whr u told us that yr uncle hd mvd towards u tht u thort he wld stop but that he ddnt and he mvbd to a point which ws abt 18 inches away from u ? ... yes
And I think u told us how his hands and his arms wr and what his attitude ws as he confrontd u in that way tell us what happened next ? ... when he got that distance away abt 18 inches I caught a sharp mvment from the rt side out of the crnr of my eye and from thr it ws I just reactd to that mvment
When he mvd from the position that u thort he ws going to stop up close to u to the point whr u sd he ws 18 inches away wht dd u think ws going to happen ? ... I thort that he ws going to do s.ething from thr point I [thought] he was going to stop when he cm closr to me I thort he ws going to do s.thing
And then u say u saw out thr crnr of u eye ? ... from his rt side I caught a sharp mvment
What sort of a mvment ws it what dd I signify to u ? ... it ws a mvment that just md me react
And how dd u react ? ... I don’t know, I just punchd out
Dd u do a.thing else ? ... I mvd my head slightly to the rt
To yr rt ? ... yes
Why dd u do that ? ... just from the traing anthing from the rt a.thing from the lft tht I have hd u cn tell that s.thing is cmg from that directn
Wht ws the point of mvg yr head ? ... I thort I ws going to get hit in the head, to protect my head I movd
How quickly dd all this hppn ? ... seconds
Do u know now r u able to think back and clearly record how u threw the blow ? ... no
U accept that u in fact struck yourself uncle ? ... yes
Wht happened nxt in trms of wht u saw or perceived in these events u told us abt how u struck out, those r my words, how u mvd yr head to the rt and the evasiv way u told us abt what then nxt happened what ws yr next perceptn of s.thing occurg ? ... I ws just standg thr sort of in a little bit of shock
Dd u see what happened to yr uncle ? ... um, no he just fell back

The proposed new evidence

[44]The first category of proposed new evidence is that relating to the family meeting. The family meeting in question took place at Mr Wananga Kingi’s home, after his body had been returned from Wellington but before it was taken to the marae. There were speakers from each side of the family and there was evidence that such a meeting is customary in Maoridom after a tragedy. A number of affidavits were filed by witnesses whom we understand come from both sides of the family. Some said that Mr Reihana Kingi, when describing the events on the day of his father’s death, did not mention seeing the appellant deliver the fatal blow. Others said that Mr Reihana Kingi had said positively that he did not see what happened.
[45]The second category of proposed new evidence is that relating to the experiment designed to replicate the circumstances leading to Mr Wananga Kingi’s death. The experiment involved the design of a vest apparatus that had a false steel jaw jutting from it. The vest was fitted to a 92 kilogram man who was hit by a fighter allegedly of equal strength to the appellant. The object of the experiment was to test whether a blow could lift a 92 kilogram man off the ground. The outcome of the experiment was that, despite a number of powerful blows administered, this did not occur. Affidavits were filed describing the experiment and proffering opinions on a number of related matters.

The summing up

Directions as to the onus of proof

[46]Near the beginning of the summing up, the Judge gave a standard direction as to the onus of proof. It was couched in general terms and not directed to the specific facts of this particular case:
[6] It has been emphasised to you by counsel, and rightly so, that a vital feature of a trial is that it is for the Crown to prove guilt. An accused person is deemed to be innocent unless and until the Crown does prove guilt. That onus is on the Crown at all stages of the trial. It does not shift. It is for the Crown to prove the essential elements of the charge which it brings against the accused. There is no onus on an accused person in any trial to prove that he or she is innocent.
[47]The Judge gave the standard tripartite direction as to the effect of the defence evidence. In the circumstances, given the importance of the appellant’s evidence to the self-defence issue, we consider that it should ideally have been stressed that this direction applied to the appellant’s evidence as well as to other defence witnesses but, in our view, the jury would have understood this to be the case.
[48]The Judge then explained to the jury the three factors it had to consider on the issue of self defence. He said:
[25] (a) First, you have to decide what the accused believed the circumstances were at the time. That is to be considered from his point of view. It is a subjective test. What did he believe was happening at the time? What did he think was the threat of bodily harm which he was facing? You assess that by taking into account all of the evidence.
(b) Second, bearing in mind what the accused believed was happening at the time, was he acting to defend himself from the harm that was threatening him? Again, that it to be considered from his point of view. Did he believe that he was in danger of bodily harm, and that he was using force to defend himself against that danger? Again, you assess that by taking into account all of the evidence. If you are satisfied beyond reasonable doubt that he did not believe he was in that sort of danger, then you need go no further. If that is the view that you come to, then the Crown will have satisfied you that self defence is not a reasonable possibility. If, however, you think that it is at least a reasonable possibility that he did not believe that he was in danger of bodily harm, and that he intended to act in self defence against that danger, then you go to the third step.
(c) And the third step is this. Was the force the accused used reasonable, given what he believed was happening at the time? Here it is an objective test. Whether he thought the force used was reasonable is not the point. The question is whether you think it was reasonable, given what he believed was happening at the time. That is because the law does not give people a blank cheque to use as much force as they like, even if they are defending themselves. Obviously enough, these things happen in the heat of the moment, and you cannot expect a person in that situation to weigh up the degree of force in a very exact and measured way. Nevertheless, there must be a reasonable balance between the threat as the accused believed it to be, and the force used to meet it. If you are satisfied that the type or amount of force used was excessive, given what the accused believed at that time, then his actions will not be justified and the Crown will have excluded self defence. If you are not satisfied beyond reasonable doubt that the force was excessive, the Crown will not have excluded self defence, and you should acquit the accused. [Emphasis added]
[49]In relation to the onus of proof, in the context of self defence, the Judge said this:
Whether the accused was acting in self defence is the central issue in this case. Although self defence is referred to as a "defence", it is not for the accused to prove that he was acting in self defence. If the issue of self defence is raised by any of the evidence, it is for the Crown to prove, beyond reasonable doubt, that the accused was not acting in self defence. If the Crown does not exclude that as a reasonable possibility, then the accused should be acquitted.
[50]The Judge then went on to relate the legal directions to the facts. He went through each element in turn.
[30] I deal first with the manslaughter charge. So the first elements is what did the accused believe the circumstances were at the time he struck Wananga Kingi. It is, as I have said, a subjective test of what he believed not what you might believe or what objectively a reasonable person might believe. So in assessing that you will need to take into account his evidence of what he believed at the time. But in assessing that, you will need as I said, to consider all of the evidence so that you will need to consider what other witnesses have said about events in the carport, and about the background to those events, to assist you in assessing his evidence as to his belief and forming in your minds, a conclusion as to what his belief was. Now I do not intend to summarise the evidence for you. You have heard addresses from counsel which have highlighted the evidence which they say is relevant and in which they have highlighted what they suggest you might conclude from that evidence and you have heard what they have to say about how they suggest you might assess the credibility and reliability of the evidence to which they have referred. As I have said you are the judges of fact, not me so I will leave you to consider the points which they have made about the evidence without comment from me and I will confine myself to raising with you the matters, the principal matters, which the Crown and the defence say may assist you in reaching a conclusion but without examining in detail the evidence in support of those. So you must form a view guided by the submissions that you heard from counsel as to the evidence which those who saw the events have given as to what you consider the circumstances were in the carport at the time when Paul struck the blow to Wananga for the purposes of assessing what Paul believed the circumstances were at that time and you are asked by counsel to consider these various events of what happened up to that time; that is the time at which the blow was struck. Mr Holt took you through the evidence of all people who saw or said they saw the events and Mr Squire similarly discussed that evidence. You must form your own views about that and you must do so for the purpose of assessing Paul’s evidence as to the circumstances as he believed them to be at the time. You need to consider whether you find that evidence credible and reliable. [Emphasis added]
[31] The second aspect of self defence is, bearing in mind what Paul believed, wasn’t acting to defend himself from threatened harm. The Crown invite you to consider a number of matters in support of the Crown’s contention that he was not so acting. The Crown points to the circumstance that there were four people who visited and only one, Wananga, who was visited and might be, if one can put it at way, on the other side. The Crown refers to Paul’s prowess in boxing and the sport of K1. The Crown refers to his training, the fact the Crown says that he was trained to block and counter and to be defensive. The Crown refers to Wananga’s age as a relevant matter that you might take into account. The Crown says that of all of those present in the carport Paul was the only person to throw a punch. The Crown invites you to consider the strength of the blow. That issue is most relevant to the third question which is whether the force was reasonable but it is relevant to whether the defence that the accused was acting in defence of himself is made out or not. The Crown also refers to the statements which the accused is said to have made afterwards. As I have said, you will have to reach a conclusion of whether you believe those statements were made or not. There was the statement the Crown says which the accused made to the constable on the night of the 6th of January and there were the statements which were said to have been made at the family meeting and the other statements to the family members. I emphasise that you must take those into account only if you find that those were made. The Crown invites you to conclude that in those statements Paul did not say that he was acting in self defence and the Crown relies upon that. The Crown refers to the position in the carport where Paul and Wananga were when the punch was thrown. We have heard a good deal of evidence about that and you have heard what both counsel have said to you on that issue and I do not, as I have said, propose to analyse it in detail. Essentially the Crown says that Paul and Wananga were further into the carport than the defence says and the Crown says that this indicates that Paul was advancing towards Wananga at the time and the Crown says also that Paul did not retire. [Emphasis added]
[32] The defence says that Wananga was being aggressive in the events of that day both earlier in the day at the cowshed in the incident with Les Rattray and in the carport that evening. Paul says that he advanced towards him and that he did not stop. He says that he did not have an opportunity to retire. The defence submits that it was Paul who was being placatory and not aggressive in the incident. Those are matters again upon which you will need to consider the evidence and decide which evidence you accept in forming a view. The defence says that Paul was suffering the effects of his fight in Japan, that he had an extra vulnerability because of that. Again you must assess that. The defence says that Wananga was, despite his age, a man who was fit for his age, he was in good physical shape and had been a boxer in his youth. The defence says that he was a person from whom Paul might properly consider was a threat to him. The defence says that Paul saw a movement from Wananga out of the corner of his eye to which he reacted. The defence says that he reacted in a defensive way by turning his head away and that he also reacted by punching. You will need to consider the evidence of all witnesses who saw those events to assist you to assess that evidence and as I have said, I do not propose to repeat all of the matters which counsel have raised with you in that regard. The defence says that Paul’s position was that he feared that he was about to be hit by Wananga. It says that he reacted instinctively. It says that there was not time for a measured reaction and that the extent of his reaction must be judged with that in mind. The defence said that it was a fluid situation, that you must bear in mind when assessing his reaction. The defence says that this was not an attack on Wananga, it was a single blow from Paul’s non-dominant left hand. The defence refers to the extent of the injuries. It points out that the injuries inflicted by the blow itself were confined to bruising and the cut of which you have heard. Again, that is relevant to the question of whether the force was reasonable but it is also relevant to the question of whether Paul was defending himself. [Emphasis added]
[33] The third issue is was the force reasonable, again reminding you that that is a question for you. What you think was reasonable? Again I will refer only very generally to the points which the Crown and the defence have made about it as both counsel have very ably put those arguments to you.
[34] The Crown refers in particular to Dr Sage’s evidence. The evidence he says of a propelled fall. The defence also points you to Dr Sage’s evidence answer says that although the blow was not trivial, Dr Sage was unable to place it precisely in the scale of forcefulness and submits to you that the blow was not excessive. The Crown also refers to the location of the body, that is the position where Wananga’s body came to rest after the fall. It says that that evidence indicates that there must have been considerable force imparted to lift Wananga off his feet and to send him to the position where he ultimately lay. So the Crown invites you to conclude that the force used was not reasonable.
[35] The defence says that it would be surprising if the force was as great as the Crown says, that there was no more injury than in fact occurred. That is, the defence says the limited injuries which were inflicted by the blow itself do not support the Crown’s contention that the force was as great as the Crown says. Again, I do no more than remind you of those arguments. The defence also submits to you that Paul had no time to do anything else. This was not a time for fine judgments, he reacted with the only weapon which he had which was his hand and the force imposed was reasonable when considered in that light.
[51]The Crown submitted that the onus of proof was also discussed when the Judge gave directions on the second count in the indictment, that of the alleged assault on Mr Reihana Kingi. That was not the case. The Judge had this to say:
[37] The second count, the count of assault on Reihana, I can cover very briefly. The Crown says that Paul lashed out at Reihana when he came onto the scene and that caused him to stumble back onto the steps and the Crown invites you to conclude that Paul was not acting in defence against a threat of harm and that the force that he used was not reasonable to that end.

Use of the phrase "bodily harm"

[52]The Judge used the phrase "bodily harm" when referring to the circumstances as the appellant believed them to be – see [25] (a) and (b) of the summing up reproduced at [48] above.

Use of the phrase "reasonable balance"

[53]The Judge used the phrase "reasonable balance" in the context of discussing the "third step" the jury must consider when considering the issue of self defence - see [25] (c) of the summing up reproduced at [48] above. He explained that the jury must consider whether the force that the appellant used was reasonable, given what he believed was happening at the time. He went on to say a little further in the paragraph: "[n]evertheless, there must be a reasonable balance between the threat as the appellant believed it to be, and the force used to meet it."

Directions as to force

[54]MacKenzie J did not give a specific direction as to the meaning of force, except in the context of explaining the elements of the defence of self defence. When MacKenzie J discussed the relevant force, he, however, referred on a number of occasions to the appellant’s single blow to Mr Wananga Kingi.

Discussion of conviction appeal

The summing up

[55]We deal first with the onus of proof. There is no doubt, as pointed out by the Crown, that the judge gave numerous directions on the onus of proof, both generally and specifically in relation to self-defence, and all were in conventional and correct terms. The appellant’s complaint is that, when discussing the facts and relating those facts to the legal directions, the Judge did not repeat the onus of proof directions. He merely set out the competing contentions of the Crown and the defence, with the risk that the jury were left with the impression that it was a matter of choosing between those two versions of events. In particular, the Judge did not give directions, in the context of his factual discussion, on what the jury were to do if they were unsure as to whether the Crown had disproved any of the essential elements of the defence.
[56]More importantly, however, in the course of giving the directions on the factual matters and the contentions of the parties, the appellant contends that the Judge misdirected the jury as to the onus of proof. The first comment complained of was at the end of [30] of the summing up (reproduced at [50] above), where the Judge said that the jury needs to consider whether they found the evidence of the appellant "credible and reliable" as to the circumstances as he believed them to be. Mr Squire submitted that this did not help the jury on what they were to do if they were unsure on any aspect of the appellant’s evidence.
[57]In addition, there was, in Mr Squire’s submission a clear misdirection in [31] of the summing up (reproduced at [50] above). This was the Judge’s comment that the strength of the blow administered by the appellant "is relevant to whether the defence that the accused was acting in defence of himself is made out or not." In his submission, this comment squarely and wrongly put the onus on the appellant to prove that he was acting in self defence.
[58]We note that there was a further comment in [32] of the summing up (reproduced at [50] above) that could have suggested to the jury that its task was to choose between the evidence of the defence and the evidence of the Crown. The jury were told, when discussing the Crown and defence contentions as to whether the appellant advanced towards Mr Wananga Kingi or not, that they were required to consider the evidence and "decide which evidence you accept in forming a view".
[59]It is always preferable for a judge to direct a jury on the law in a manner that relates to the facts of the case. Directions on the law are easier to understand if they are related to the actual decisions the jury needs to make. In this case, MacKenzie J, as well as giving clear general directions on the law relating to self defence, did relate those directions to the facts of the case and the contentions of the parties, except as regards the directions on the onus of proof. The directions on onus were not repeated or alluded to when the Judge was discussing the facts. In particular, the jury were not told what to do, in the context of the discussion of the facts, if they were unsure as to any aspect of the appellant’s evidence. As a counsel of perfection this should have been done.
[60]More significantly, however, there was a clear misdirection on onus in [31] of the summing up. There were also the other remarks highlighted above which could have suggested to the jury that their task was to make a simple choice between the Crown and defence contentions. Although the summing up must be looked at as a whole and therefore the misdirections looked at in the context of the very clear repeated directions on the onus of proof, both generally and as regards the defence of self-defence, we consider that there is still a significant risk that the jury misunderstood where the onus lay, particularly as the misdirection occurred during a discussion of the factual issues the jury had to decide. The misdirection was on a major issue. Self-defence was a central part of the case and, indeed, the only issue at trial. In our view, the misdirection led to a material risk of a miscarriage of justice. This ground of appeal must therefore succeed.
[61]We can deal with the remaining issues relatively briefly. Mr Squire relied on the cases of Kneale and Howard in support of his contention that it was a misdirection for the Judge to use the phrase "bodily harm" to describe the possible threat that the appellant was purportedly defending himself against. In Kneale at 178 this Court said:
The section permits persons to act so as to prevent offences occurring. It does not explicitly require the person acting to be in fear of bodily harm. All that is required is that the person acting believes that either they or another need defending from imminent danger. This is a broader proposition than the infliction of actual bodily harm. The defence is available in a wide variety of situations and is not limited to situations where there is a danger of death or serious bodily harm. The seriousness of the threat or attack is relevant at the point of determining the reasonableness of the response. The section lays down no more than that a person may use reasonable force where it is believed necessary to do so. That is, there must be some perceived danger to their safety from which they need to protect themselves.
[62]In Howard at [24], this Court said:
[24] Mr Lithgow emphasised two aspects of the general statement of the law which he said amounted to misdirections and mentioned a third as giving rise to concern. The first was the emphasis in the first and second parts of the direction to "bodily harm" and to related references to "harm" and "danger". As this Court said in R v Kneale [1998] 2 NZLR 169; (1997) 15 CRNZ 392 at p 178; p 401, self-defence is in principle available as a defence to assaults where bodily harm may not be threatened. The Judge begins by referring to "attack" alone or perhaps attack as an alternative to bodily harm. But that reference – singular or alternative – disappears later in the direction with the sole emphasis being on bodily harm. It is true that in terms of her defence and her own evidence the appellant may well have feared bodily harm, but she may also simply have been trying to avoid any kind of assault.
[63]There may be some cases where it is important to avoid the use of the term bodily harm but, in our view, in most cases the distinction between fear of bodily harm and fear of attack or danger will be a distinction without a difference. We accept the Crown’s submission that the fear of being hit, especially on the head, implicitly includes a fear of incurring bodily harm. It is therefore not significant that the Judge used the phrase bodily harm and that the appellant did not say in his evidence that he feared bodily harm. He did say that he thought his uncle was going to hit him on the head.
[64]The next issue was the use of the phrase "reasonable balance". In Howard this Court cautioned that the phrase might be misleading. At [26] of Howard, this Court said:
‘such force as ... it is reasonable to use’ may include force which is not in reasonable balance with the believed threat, if for instance the accused has no real choice of means, other than a means which might be seen in the normal course as way out of balance with the threat. We are not saying, to return to a matter mentioned earlier (para 9), that the particular type of force actually used must be the only one available, but the imminence of the believed threat may leave no moment for deliberation over the choice of means.
[65]In our view, these comments in Howard were not meant to suggest that the use of the phrase "reasonable balance" is not an appropriate direction. We accept the Crown submission that the main reason that the conviction was set aside in Howard was the suggestion in the summing up that someone who is feeling spiteful and angry cannot be acting in self defence. The point made in Howard is that what is a reasonable balance will depend both on the circumstances as the accused believed them to be and on the perceived threat. The question of balance is not to be assessed in the abstract and divorced from the perceived facts. When looked at as a whole, the standard direction the Judge used in [25] (c) made that clear. There may be circumstances where more is required but this was not one of them.
[66]As to Mr Squire’s last point on the question of force, we consider that the Judge made it clear (albeit implicitly rather than expressly) that the relevant force in this case was the appellant’s single blow to Mr Wananga Kingi, rather than the unintended consequences of that blow. The consequences of the blow were in any event important in this case to assess the force of the blow – see Dr Sage’s evidence, discussed at [40] - [42] above.

The application to adduce fresh evidence

[67]The normal rule is that, to be admitted, any new evidence must be fresh. This is to serve the public interest in the finality of jury verdicts. There will, however, be rare cases where evidence may be admitted even if not fresh. In Bain, this Court discussed the test for the admission of new evidence in the following terms:
[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.
[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s 389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.
[24] If further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.
[68]If the new evidence sought to be adduced on appeal was known to an appellant or his or her counsel before trial, it is unlikely in our view ever to be in the interests of justice that it be admitted, subject of course to allegations of trial counsel incompetence or failure to follow instructions being made out. To admit evidence on appeal that was known to exist before the trial would be effectively to allow a re-run of the trial on a different basis. As said in Bain, our system of justice requires that an accused puts up his or her best case at trial. On the other hand, where the evidence was not known to the appellant or his or her counsel before trial but could, with due diligence, have been discovered, the Court may be more likely to allow its admission in the interests of justice, perhaps depending on the ease with which the evidence could have been discovered. Obviously, as noted in Bain, the stronger the evidence is from an appellant’s point of view and the more it potentially challenges the Crown case at trial, the more likely it is to be in the interests of justice that it be admitted. We remark that evidence that directly challenges the veracity of the evidence of Crown witnesses at trial may be more likely to meet these criteria than evidence that merely bolsters the defence case. We reiterate, however, that cases where evidence that is not fresh is nevertheless admitted will be rare.
[69]We now examine the proposed new evidence in this case. Turning first to the evidence of what Mr Reihana Kingi said at the family meeting, the Crown did not assert that it is not sufficiently credible to be admitted. It did say, however, that the evidence is not fresh. The Crown accepted that the existence of the evidence was not known to the appellant or his counsel at the time of trial. The question is whether it would have been available at trial with the exercise of due diligence. The Crown submitted that it would have been. Mr Squire submitted that it would not have been. He submitted that the appellant and his counsel were, at the time of trial, not aware of the family meeting and they had no reason to suspect that such a meeting had taken place or that Mr Reihana Kingi had said at the meeting what the deponents claim in their affidavits.
[70]We accept the Crown submission that it would have been a straightforward enquiry for counsel to determine whether Mr Reihana Kingi had told other family members that he had not in fact seen the events, given that the appellant’s counsel were aware of other evidence to this effect. We recognise that, in a family situation, there can be difficulties in interviewing potential witnesses, but, even taking this into account, we consider that the evidence would, with reasonable diligence, have been available at trial. The position may have been different if there had been no other evidence that Mr Reihana Kingi had said that he had not seen the events in question. It is doubtful whether counsel should be obliged to assume that witnesses have lied at depositions in making their inquiries before trial.
[71]It is true that the evidence of the family meeting, if it had been led at trial and accepted by the jury, would have had a major effect on the credibility of Mr Reihana Kingi and, as a consequence, on that of Mr Ormsby and, to a lesser but still significant extent, on that of Ms Wharewhiti. It is also true, as pointed out by the Crown, that there was other evidence at trial that Mr Reihana Kingi had said that he had not witnessed the events leading to his father’s death. We, however, accept Mr Squire’s submission that the evidence of the family meeting on such a solemn occasion would clearly have had more weight. In addition, our impression from reading the transcript was that those witnesses who gave evidence at trial as to Mr Reihana’s alleged statements that he had not seen the events in question were challenged reasonably successfully by the Crown in cross-examination. We also accept Mr Squire’s submission that the evidence of the meeting, given Ms Wharewhiti’s presence at it, would have allowed more scope for challenging her evidence.
[72]The evidence of Mr Reihana Kingi, and that of his sister and Mr Ormsby, was obviously vital to the Crown’s contention that the appellant had been the aggressor and that he had not been acting in response to a perceived threat at all. It is less clear to us, in the light of Dr Sage’s evidence as to a propelled fall, whether the evidence was so vital to the question of whether the level of force used was unreasonable. It was, however, nonetheless of significance to the resolution of that question as it was evidence from witnesses who had allegedly seen the events in question rather than evidence from an expert who had not. We do not, however, have to decide whether the evidence would have come within the rare category of evidence that should be admitted despite it not being fresh, as the evidence will of course be able to be called at any retrial.
[73]Turning now to the evidence relating to the experiment, this is clearly not fresh evidence. Nor do we consider it to be evidence that would come within the rare category of evidence that should nonetheless be admitted. At best it is evidence that may have bolstered the defence case. It is not evidence that relates to the events in question but merely to a later reconstruction of those events. In addition, the affidavits are essentially presented as expert evidence from witnesses who profess expertise in boxing. Much of the evidence presented in those affidavits does not appear to be within the deponent’s area of expertise and therefore would be inadmissible in any event. Further, the evidence of the experiment itself (even if admissible) is not, in our view, sufficiently cogent or reliable. The experiment was devised to test whether it was possible that the appellant’s blow caused Mr Wananga Kingi to be lifted off the ground. We consider it would be almost impossible exactly to replicate the incident and therefore the evidence would have been of little significance in the context of the case.

Sentence appeal

[74]Given our conclusion on the conviction appeal, it is not necessary to deal with the sentence appeal and we make no comment on it.

Result

[75]For the reasons set out at [55] - [60] above, the appeal against conviction is allowed, the conviction set aside and a retrial ordered.

Solicitors:
Peter S Coles, Palmerston North, for Appellant
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2005/200.html