Fungavaka v R - [2017] NZCA 195

IN THE COURT OF APPEAL OF NEW ZEALAND

CA644/2015
[2017] NZCA 195

BETWEEN	VILIAMI ONE FUNGAVAKA Appellant
AND	THE QUEEN Respondent

Hearing:	9 March 2017
Court:	Winkelmann, Woodhouse and Collins JJ
Counsel:	M I Koya for Appellant M J Lillico for Respondent
Judgment:	22 May 2017 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr Fungavaka was convicted of one charge of murder following a jury trial before Faire J in the High Court at Whangarei. The victim, Ms Georgina Manuel, was struck by Mr Fungavaka’s car two times in quick succession. Mr Fungavaka’s appeal against conviction is based upon the following grounds:
(a)Late notice of detailed evidence given by the pathologist, Dr Glengarry, as to the cause of death prejudiced Mr Fungavaka. While it was not in dispute that injuries arising from the two impacts caused the victim’s death, it was not until Dr Glengarry gave evidence at trial that she clarified that injuries inflicted by either impact would have been fatal.
(b)The Crown laid a single, unparticularised murder charge against Mr Fungavaka. Mr Fungavaka complains that because his car struck the victim twice, there was a risk he was convicted without the jury ever being in agreement that he had the requisite intent at the time of the fatal impact.
(c)Deficient interpretation of evidence during the course of the hearing (Mr Fungavaka has poor English).
(d)The Judge instructed the jury incorrectly in relation to murderous intent.
On each or any of these grounds it is argued for Mr Fungavaka that a miscarriage of justice has occurred.

Background

The Crown case was that on 20 August 2013 Ms Manuel and Mr Fungavaka together drove off from a gathering looking for Ms Manuel’s father. When they found him walking along a road, Ms Manuel got out of the car. An argument broke out between Ms Manuel and Mr Fungavaka when she then refused to get back into the car. While the engine was still running and with the headlights on, Ms Manuel walked in front of the car and gave Mr Fungavaka the fingers, yelling at him to fuck off and leave her alone. The engine of the car revved and the car moved forward into Ms Manuel, hitting her.
Mr Fungavaka continued forward in the car, did a spin or u-turn with the tyres squealing, and came back down the road directly toward where Ms Manuel was lying. The car went over the top of her and Mr Fungavaka drove away.

First ground of appeal: late disclosure of evidence of pathologist

In the formal written statement provided by Dr Glengarry, dated 11 September 2013, the cause of death is recorded as “multiple blunt force injuries due to a motor vehicle collision”. On 1 September 2015 an amended statement for Dr Glengarry was served on the defence, linking particular injuries to each impact. Then on 4 September 2015, during the course of trial, Dr Glengarry gave…

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 Fungavaka v R

Details

AGLC: Fungavaka v R [2017] NZCA 195
Case: [2017] NZCA 195
Decision Date: 22 May 2017 at 10.30 am

CaseChat Overview and Summary

Viliami One Fungavaka appeals against his conviction of murder. The victim, Georgina Manuel, was struck by Mr Fungavaka’s car two times in quick succession. Mr Fungavaka’s appeal against conviction is based on four grounds: the late notice of detailed evidence given by the pathologist as to the cause of death; the Crown laid a single, unparticularised murder charge against Mr Fungavaka; deficient interpretation of evidence during the course of the hearing; and the Judge instructed the jury incorrectly in relation to murderous intent. The Court found that none of these grounds provided a sufficient basis for a miscarriage of justice.

The Court found no prejudice in the late disclosure of the pathologist’s evidence. The initial opinion was sufficient to ground the Crown case that either impact was a sufficient actus reus for the purpose of the murder charge. The Court also found that the charge as formulated was no more than “Mr Fungavaka on the 20th day of August 2013 at Kaitaia murdered Georgina Manuel”, there can be no doubt Mr Fungavaka was fully informed of the particulars of the charge he faced. The Court also found that the deficient interpretation did not impede the proper conduct of the defence. The Judge was correct to conclude that the individual criticisms, and the cumulative effect of those criticisms, did not establish that the interpretation had fallen below the standard set out in Abdula to justify a finding of miscarriage of justice. The Court found no error in the Judge’s direction in relation to the elements of murder.

The appeal against conviction is dismissed.

Orders