Fifita v Police - [2021] NZHC 1031

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000118

[2021] NZHC 1031

BETWEEN
NELSON FIFITA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 May 2021

Appearances:

P Masani for Appellant

OS Klinkum for Respondent

Judgment:

10 May 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 10 May 2021 at 3.00pm

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland To: P Masani, Auckland

FIFITA v NZ POLICE [2021] NZHC 1031 [10 May 2021]

Introduction

[1] Nelson Fifita was charged with two charges of assault with intent to injure.1 After a judge-alone trial on 15 January 2020 before Judge J M Jelas, he was convicted of both charges.2 He now appeals those convictions on the basis Judge Jelas drew unreasonable inferences that led to her dismissing Mr Fifita’s evidence, and finding that he was guilty beyond a reasonable doubt.

The evidence at trial

[2] Mr Fifita and the victim had been in a relationship for two to three years. In early October 2018, they discovered that the victim was pregnant with their first child. The charges related to two alleged incidents of violence that took place on the evening/early hours of the morning of 9 and 10 October 2018.

The first incident

[3] Mr Fifita’s narrative was as follows. On the evening of 9 October 2018, he told the victim that he was going out. She became angry, and wanted him to stay at home, although Mr Fifita said that he would not call it an argument. There was no violence. He said that it was common for him to go out without his partner, and she got mad with him that night about it, but he just left.

[4] The victim’s narrative was that she and Mr Fifita had argued about Mr Fifita going out without her that evening. During the argument, she said he pushed her hard, causing her to land on the ground. Once on the ground, he punched her at least once and kicked her twice. Neighbours heard the arguing and came to intervene (though evidently did not witness anything; they were not called to give evidence). Mr Fifita left the address, as did the victim, who walked to a friend’s house to call her mother.

The second incident

[5] There was no dispute that the victim left Mr Fifita’s house and made her way to her mother’s home. In the early hours of the morning of 10 October 2018, Mr Fifita

1 Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2 Police v Fifita [2020] NZDC 11774.

and the victim texted each other. Mr Fifita wanted to visit the victim to apologise. He came to her mother’s house at about 3:30 am. Both the victim and her mother were awake. The unchallenged evidence was that Mr Fifita and the victim were “lovey- dovey” towards each other.

[6] Mr Fifita said that the reason for his apology was for going out at night…

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.

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Details

Case: [2021] NZHC 1031
Decision Date: 10 May 2021

CaseChat Overview and Summary

Nelson Fifita, the appellant, was convicted of two counts of assault with intent to injure following a trial by Judge Jelas in the District Court. Fifita now appeals against his convictions, arguing that Judge Jelas erred in drawing unreasonable inferences that led to her dismissing his evidence and finding him guilty beyond a reasonable doubt. The primary legal issue before the High Court was whether the District Court Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred.

The High Court held that the appeal must be dismissed. The Court found that the District Court Judge's credibility assessment of the appellant and the victim was open to her on the evidence before her. The Judge's reasoning for rejecting the appellant's evidence was sufficiently clear and detailed, and there was no error in the Judge's approach to the credibility issue. The High Court also found that the Judge's inference that the appellant's visit to the victim's mother's house was to apologise for the earlier assault was proper based on the evidence before her. The Court further held that the fact that the victim did not initially call the Police did not necessarily undermine her credibility, as there are many reasons why a victim of domestic violence might not immediately go to the Police. Therefore, the appeal was dismissed, and the convictions were upheld.

No specific orders were made by the Court beyond dismissing the appeal.

Orders