Aiono v The Queen - [2013] NZCA 280

IN THE COURT OF APPEAL OF NEW ZEALAND

CA476/2012
[2013] NZCA 280

BETWEEN	SOLOFA AIONO Appellant
AND	THE QUEEN Respondent

Hearing:	12 June 2013
Court:	Randerson, Courtney and Dobson JJ
Counsel:	J J Corby for Appellant M D Downs for Respondent
Judgment:	4 July 2013 at 11:00am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

In May 2012, the appellant (Mr Aiono) was convicted of murder following a jury trial in the High Court at Auckland. He has subsequently appealed against that conviction.
In early February 2009, Mr Aiono had left Auckland for Samoa, to deal with family matters. He left behind his wife (Tausilia) and their young son.
Mr Aiono returned to Auckland earlier than planned on 24 February 2009, because of their son’s ill health. Mr Aiono and Tausilia spent the night of 24 February 2009 in Middlemore Hospital, monitoring their son’s condition. During the night, or very early the next morning, Tausilia told Mr Aiono that she had had sex with a very close friend of his (Mose) during Mr Aiono’s absence in Samoa. Mr and Mrs Aiono discussed the matter later that day, and Mr Aiono was in touch with Mose by text.
At about 7pm that evening, 25 February 2009, Mr Aiono was driven to a residential address in south Auckland by his brother, with the apparent intention of talking to Mose about what had occurred. Mr Aiono’s brother confirmed that he was calm during the journey to the address.
Mr Aiono confronted Mose in the garage at the address. A fight ensued involving Mr Aiono knocking Mose to the ground, in the course of which it appears that Mose hit the back of his head on a concrete path. He was punched further by Mr Aiono and Mr Aiono also stomped on Mose’s head. Mose died very shortly thereafter.
At trial, Mr Aiono admitted the assaults that killed Mose and was therefore prepared to plead to manslaughter. However, he denied murderous intent and in the alternative contended that the partial defence of provocation applied to reduce what would otherwise be murder to manslaughter.[1]
[1]The offending occurred while s 169 of the Crimes Act 1961 was still in force. That section provided for the partial defence of provocation and had been repealed by the time of trial.
A first trial commenced in June 2010 but was aborted during its second week because new, potentially material, evidence became available to counsel. Then a second trial was conducted in late October and early November 2011, at the end of which the jury could not reach a verdict. The third trial was held in May 2012.
Mr Aiono’s appeal against conviction was advanced on five grounds.

First ground of appeal: manner of jury selection

After the jury had been sworn and selected a foreperson, but had not heard the Crown opening, it was sent away until the afternoon adjournment for the trial Judge, Peters J, to hear…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aiono v The Queen

Details

AGLC: Aiono v The Queen [2013] NZCA 280
Case: [2013] NZCA 280
Decision Date: 4 July 2013 at 11:00am

CaseChat Overview and Summary

In the case of Aiono v The Queen, the appellant, Mr Aiono, appealed against his conviction for murder. The appeal was heard by Randerson, Courtney and Dobson JJ. Mr Aiono had been convicted of murder after a jury trial in the High Court at Auckland. He was alleged to have killed a man, Mose, after learning that his wife had been unfaithful with Mose during his absence in Samoa. The appeal against conviction was advanced on five grounds. Firstly, the manner of jury selection. Secondly, the jury being unaware of additional grounds for challenging Mrs Aiono's veracity. Thirdly, the mode of presentation of evidence of a child witness. Fourthly, the manner of inferring whether Mr Aiono appreciated the risk of death from injuries inflicted. And fifthly, the jury direction on provocation.

The court found that there was no material risk of a miscarriage of justice in any of the grounds raised. The appeal against conviction was dismissed. The court held that the trial judge's actions in replacing five jurors did not jeopardise the fairness of the trial. The court also found that the delivery of the judge's caution against self-incrimination in relation to bigamy in the absence of the jury had no material effect on the conduct of an effective defence on Mr Aiono's behalf. The court held that the trial judge's direction on provocation was appropriate and that the judge was explicit that if the jury found the elements of provocation existed, then it was mandatory for them to reduce the conviction from murder to manslaughter. The court found that there was no empirical justification for the concern that the New Zealand public had become irrationally disposed against provocation.

In conclusion, the appeal against conviction was dismissed and Mr Aiono's conviction for murder was upheld.

Orders