R v Stroobant [2016] NZHC 2977 (9 December 2016)

Last Updated: 3 August 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-090-349 [2016] NZHC 2977

THE QUEEN

v

JADEN LEE STROOBANT

Hearing:	9 December 2016
Appearances:	J Murdoch for Crown E P Priest and S Gray for Defendant
Judgment:	9 December 2016

JUDGMENT OF LANG J

[on outstanding pre-trial issues]

This judgment was delivered by me on 9 December 2016 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

R v JADEN LEE STROOBANT [2016] NZHC 2977 [9 December 2016]

[1] The purpose of this judgment is to record decisions reached at the hearing today. I am grateful to counsel for the assistance they have provided in resolving many of the outstanding issues.

Application to lead hearsay evidence

[2] The Crown proposes to have one witness, Constable Robinson, give evidence about the CCTV footage collected from a variety of locations in and around the West City Mall. The defence consents to the application but objects to any attempt by Constable Robinson to identify a person depicted in CCTV footage as being Mr Stroobant.

[3] This issue was largely decided in the judgment I delivered on 23 November 2016.¹ The Crown is entitled to draw the attention of the jury to the person whom it contends is Mr Stroobant. The prosecutor can also advise the jury that the Crown contends that this person was carrying a bulky item in his pocket. It will then be for the jury to decide whether or not the person depicted in the film footage is Mr Stroobant and, if so, whether he is carrying an item in his pocket as the Crown alleges.

Evidence of Mr Miller

[4] Counsel for Mr Stroobant contend that Mr Miller should not be permitted to give the following evidence:

The soles of the Nike shoes were also compared with possible prints within certain photographs contained in a police photograph booklet, also part of item 41001. The booklet contained photographs of possible prints on the body of Ms Tian, taken by the Police Photographer.

Photographs numbered 11, 13, 15, 17 and 19 all displayed possible shoe prints created by apparent bruising on Ms Tian’s face. In my opinion, due to limited detail and a lack of clarity in the prints, there is insufficient information for meaningful comparison. This represents a neutral conclusion.

[5] Ms Priest submits that the evidence has no probative value but significant unfair prejudicial effect.

¹ R v Stroobant [2016] NZHC 2813.

[6] I disagree. Although the evidence is neutral, it does not exclude the possibility that the bruising on the face of the deceased was caused by a blow or blows inflicted by a shoe. This is relevant because the Crown contends that the blood of the deceased was found on Mr Stroobant’s shoe, and he also acknowledged to at least one other person that he had stomped on the face or head of the deceased. For that reason Mr Miller may give the evidence.

Defence witnesses who give evidence via AVL

[7] As I advised counsel during the hearing, the first step in this process is that the Court must approve or authorise a witness giving evidence by AVL from overseas. The Crown does not object to any defence expert witness giving evidence by AVL from overseas. For that reason counsel for Mr Stroobant should file an application as soon as possible, marked for my attention, seeking authorisation for their witness or witnesses to give evidence by AVL from overseas if necessary. I will then grant the application on the papers.

[8] Counsel will then need to liaise with the Court Registry (Che McKenzie) regarding the location of the witness and the probable date on which he or she will be giving evidence. Mr McKenzie will then provide an estimate of the likely cost, and counsel will need to obtain approval for that expenditure from Legal Aid.

[9] The Court has never encountered difficulty with the Legal Services Agency regarding the cost of AVL attendances because they obviate the need for witnesses to travel to New Zealand to give evidence. Should counsel experience any difficulty, they should contact the Criminal Caseflow Manager, Mr John Richardson, who will be able to provide assistance in dealing with the Agency. It is essential, however, that the Court has at least two weeks notice of any proposed AVL link.

Disclosure of briefing papers created after 20 January 2016

[10] Ms Murdoch is to file a memorandum marked for my attention no later than Wednesday 14 December 2016 to address the issue of whether these should be disclosed to the defence and, if so, in what form.

Autopsy photographs

[11] For reasons given during the hearing, I direct that photographs 14, 18 and 25 are not to form part of the autopsy photographs presented to the jury.

[12] Photographs 151, 153, 155, 157 and 159 may be included within the booklet because the pathologist wishes to speak to these when he gives evidence.

Other photographs

[13] Counsel are to liaise over the next week to reach agreement regarding the photographs to be placed before the jury. As I indicated in Court, these should be limited to photographs that Crown and defence witnesses are likely to refer to when giving evidence. Photographs that are unlikely to be referred to in evidence should not be included.

Next event

[14] Counsel are to file a joint memorandum no later than 3 pm on Friday 27 January 2017 advising whether there are any further issues to be determined before trial. The memorandum should indicate whether those issues can be dealt with at 9.30 am on the morning of the first day of the trial or whether a separate hearing will be necessary. Should a separate hearing be necessary, I will conduct it on Tuesday 31 January 2017 at 10 am.




Lang J

Solicitors:

Crown Solicitor, Auckland