Enoka v The Queen - [2017] NZHC 8

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH` REGISTRY

CRI-2015-009-001603 [2017] NZHC 8

ALBERT CHARLES ENOKA

v

THE QUEEN

Hearing: 5 December 2016

Appearances:

M Zarifeh for the Crown
A J D Bamford for the Defendant

Judgment:

16 January 2017

JUDGMENT OF NATION J

[1] Mr Enoka seeks leave from the Court to withdraw his guilty plea to a charge of kidnapping.

Background

[2] Mr Enoka was charged, together with Mr Lindsay Francis, with various offences relating to an alleged kidnapping, burglary and violent behaviour arising out of events which began on 15 February 2015. The general nature of the allegations he faced was set out in a judgment of Dunningham J on a s 101 application as to the admissibility of certain identification evidence. The background is reproduced
below:1

[3] The summary of facts alleges that the defendant, Mr Enoka, is president of the Christchurch chapter of the Rebels gang and his co- defendant, Mr Francis, is a prospect for that gang. On 15 February 2015, Mr

1 R v Enoka [2016] NZHC 47.

ENOKA v R [2017] NZHC 8 [16 January 2017]

Enoka’s partner, Ann Johnston, went to Kibblewhite Street to visit Simon Kovacs. Ms Neho, Mr Kovacs’ partner, and another flatmate were also at the address.

[4] When Ms Johnston telephoned Mr Enoka mid-morning, he was angry that she was not at home and he thought she was with another man. He arranged to pick her up on the corner of Kibblewhite and Union Streets. He allegedly arrived with Mr Francis and another male. He grabbed Ms Johnston, punched her in the face, called her a slut and threw her inside the car. Ms Neho who had accompanied Ms Johnston to the meeting point was then asked by Mr Enoka and Mr Francis where the house was that she had come from and to take them there. When he arrived at the house, he pointed his knife at Mr Kovacs saying “have you been fucking my missus. What’s she doing here?”

[5] Mr Enoka is then alleged to have walked up to Mr Kovacs, held the knife against his throat and punched him twice in the mouth with a closed fist, giving Mr Kovacs broken teeth and a fractured jaw. He then asked who else was present in the house and dragged Mr Kovacs into the room where another flatmate, Kyle Morgan, was and threatened to stab the pair, again asking “who was fuckin his missus”. Mr Enoka is then alleged to have told Mr Kovacs and Mr Morgan that “you’re paying for having her here” and he began ransacking the house.

[6] Mr Francis then told Mr Kovacs and Mr Morgan that they were lucky because Mr Enoka had done worse things to others, saying he had seen Enoka chop people’s fingers off and worse. After making further threats, the defendants eventually left the property taking Ms Neho, and Mr Kovacs’ Chihuahua dog with them. They went to an unknown address where they stayed the…

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 Enoka v The Queen

Details

AGLC: Enoka v The Queen [2017] NZHC 8
Case: [2017] NZHC 8
Decision Date: 16 January 2017

CaseChat Overview and Summary

The defendant, Albert Charles Enoka, applied for leave to withdraw his guilty plea to the charge of kidnapping. The application followed a lengthy criminal proceeding in which Mr Enoka and his co-defendant, Lindsay Trevor Francis, were charged with various offences arising from an incident on 15 February 2015. The Court had to decide whether Mr Enoka’s guilty plea was entered with a full understanding of the nature and consequences of the plea and whether, in the interests of justice, the plea should be withdrawn. The Court found the application should be dismissed.

In reaching its decision, the Court considered Mr Enoka’s affidavit, submissions from his counsel, and the evidence of his former counsel, Mr Shamy. The Court found that, on 31 May 2016, Mr Enoka had made a considered decision to plead guilty to the charges after a lengthy discussion with Mr Shamy. The Court found it was misleading for Mr Enoka to suggest that he only had a brief discussion with Mr Shamy before he entered his guilty pleas on 3 June 2016. The Court found that Mr Enoka had been fully informed as to the relevant issues, the strength of the Crown case against him, and the consequences of a guilty plea. It was not in the interests of justice to permit Mr Enoka to withdraw his guilty plea.

Orders