Cunha v Police - [2016] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000315 [2016] NZHC 2878

BETWEEN
DANIEL MOIANO CUNHA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 November 2016

Appearances:

C Wright for Appellant
M Hammer for Respondent

Judgment:

30 November 2016

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 30 November 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CUNHA v NEW ZEALAND POLICE [2016] NZHC 2878 [30 November 2016]

[1] Mr Cunha faced two charges in the District Court. He was charged that on

8 June 2015 he did an indecent act on J, a young person then aged 12 years. Secondly, he was charged that on a date unknown between 5 August 2012 and 31
March 2013 he did an indecent act on B, a young person then aged 13 years.

[2] Following a Judge alone trial, Judge Field found Mr Cunha guilty on both charges in a decision delivered on 27 July 2016.1 On 9 September 2016, Judge Field sentenced Mr Cunha to two years two months imprisonment.2 Mr Cunha appeals against conviction. He alleges that in relation to each charge the Judge erred in a manner in which he assessed the evidence to an extent that a miscarriage of justice
has occurred.3 In this context a miscarriage of justice will occur when any error has

created a real risk that the outcome of the trial was affected.4

The first charge

[3] J’s family were members of a gymnasium facility in Auckland that provided members with a wide range of sporting and recreational facilities. J and other members of his family regularly took advantage of the facilities that the gymnasium offered.

The evidence

[4] The first charge was laid as a result of an incident that occurred on the afternoon of 8 June 2015. J’s evidence-in-chief was placed before the Judge in the form of an evidential interview recorded on videotape on 30 July 2015. He also gave oral evidence at the trial. J said that on the afternoon of 30 July 2015 he and his mother attended the gymnasium. During the course of the afternoon, J went into the toilet area of the facility. He said that he had earlier noted a male person “lurking around” in the toilet and this had caught his eye. He said that all of the conventional toilet cubicles were occupied or out of order. For that reason he entered a toilet
cubicle designed for use by persons with physical disabilities.

1      New Zealand Police v Cunha [2016] NZDC 20333.
2      New Zealand Police v Cunha [2016] NZDC 17584.
3      Criminal Procedure Act 2011, s 232(2)(b).
4      Section 232(4)(a).

[5] J said that the man whom he had observed earlier lurking in the area of the toilets then followed him into the cubicle and locked the door. J’s evidence as to what then occurred is captured in the following passage from his evidential interview:

I went in…

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 Cunha v Police

Details

AGLC: Cunha v Police [2016] NZHC 2878
Case: [2016] NZHC 2878
Decision Date: 30 November 2016

CaseChat Overview and Summary

Daniel Moiano Cunha appeals against his convictions for two charges of committing indecent acts on two young persons, J and B, at a gymnasium in Auckland. The High Court heard the appeal against conviction on 28 November 2016. The court found that Mr Cunha's appeal against conviction could not succeed and dismissed the appeal. The court found that the District Court Judge had not erred in concluding that Mr Cunha was guilty of the charges. The court found that the Judge was entitled to place weight on the complainants' evidence and that he had not erred in rejecting Mr Cunha's version of events. The court also found that the Judge was entitled to take into account the fact that Mr Cunha had engaged in similar conduct with another young boy in the toilet area of the same gymnasium two and a half years later.

Orders