Harmer v The Queen - [2016] NZHC 2155

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-19 [2016] NZHC 2155

BETWEEN
ELFENDER-LEE HARMER

Appellant

AND

THE QUEEN Respondent

CRI-2016-441-20

BETWEEN LEO DAVIS WINITANA Appellant

ANDTHE QUEEN Respondent

Hearing: 30 August 2016

Counsel:

W Hawkins for Mr Harmer M J Phelps for Mr Winitana J E Reilly for Respondent

Judgment:

13 September 2016

JUDGMENT OF CLIFFORD J

Introduction

[1] Following a Judge alone trial in the District Court before Judge Adeane the appellants, Leo Winitana and Elfender-Lee Harmer, were convicted on one charge each of aggravated burglary and two charges each of assault with a weapon. Messrs
Winitana and Harmer now appeal their convictions.1

1 R v Winitana and anor [2016] NZDC 10182.

HARMER v THE QUEEN [2016] NZHC 2155 [13 September 2016]

[2] In appealing his conviction, Mr Winitana says Judge Adeane was wrong to admit a hearsay statement from a complainant who, after the incident in question, had moved to Australia. A miscarriage of justice resulted.

[3] In appealing his conviction, Mr Harmer also says the Judge was wrong to admit that hearsay statement. In addition he says:

(a) His conviction under s 66(1) of the Crimes Act 1961 as a party to aggravated burglary and assault with a weapon was not available on the evidence.

(b)It is not open for this Court on appeal to substitute a conviction on those charges as a party under s 66(2). Even if it was, there was an insufficient evidential basis for finding Mr Harmer guilty of aggravated burglary, and assault with a weapon, as opposed to simply burglary and assault.

[4] I will deal with each of those grounds of appeal in turn. In doing so, I will consider relevant aspects of the evidence and the Judge’s ruling and verdicts. By way of context, I first provide the following overview.

Overview

[5] Mr Tawhai, Mr Winitana and Mr Harmer were, or had been, members or prospects of the Mongrel Mob. They were all known to each other. On the evening of 29 June 2015 Mr Tawhai was asleep with his partner, Suzanne Hapuku-Te-Nahu, in their home at Flaxmere where they lived with their two children. There is no dispute that, in the early hours of the morning, Mr Tawhai and then Ms Hapuku- Te-Nahu were woken when Messrs Winitana and Harmer arrived at the window of their bedroom. Mr Tawhai spoke to them through that open window. At one point, Ms Hapuku-Te-Nahu heard him say, “no”. Almost immediately after that, Mr Winitana smashed through the front door and entered their bedroom. A fracas ensued.

[6] The Crown said that, during that fracas, Mr Winitana had a weapon, a spade. He struck both Mr Tawhai and Ms Hapuku-Te-Nahu with that weapon. Hence the charges of aggravated burglary and assault with a weapon.

[7] At some point Ms Hapuku-Te-Nahu left the bedroom, went to the lounge across the hall, called the police, and then returned.

[8] Shortly after that Mr Winitana, together with Mr Harmer who had by then also…

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 Harmer v The Queen

Details

AGLC: Harmer v The Queen [2016] NZHC 2155
Case: [2016] NZHC 2155
Decision Date: 13 September 2016

CaseChat Overview and Summary

The appellants, Elfender-Lee Harmer and Leo Winitana, were convicted in the District Court of aggravated burglary and assault with a weapon. The convictions were appealed to the High Court. Harmer argued that his conviction as a party to the offending was not available on the evidence and, even if it was, there was insufficient evidence to find him guilty of aggravated burglary and assault with a weapon, as opposed to simply burglary and assault. Winitana argued that the Judge was wrong to admit a hearsay statement from a complainant who, after the incident in question, had moved to Australia and was unavailable as a witness. The court considered whether the Judge had erred in admitting the hearsay statement and, if so, whether the error had caused a miscarriage of justice. The court concluded that the Judge had erred in failing to determine whether the complainant was unavailable as a witness. However, given the unchallenged evidence from the other complainant, the error did not cause a miscarriage of justice. The court also considered whether Harmer's conviction as a party to the offending was available on the evidence. The court concluded that the evidence did not establish actual assistance, abetting, encouraging, incitement, counselling, or procuring. Rather, the evidence was of presence only. However, the court found that the presence of Harmer at the scene, together with the words he was heard to say, allowed for the inference that he and Winitana went to the scene together for the purpose of confronting the complainant and, if necessary, unlawfully entering his house to do that. Accordingly, the court allowed Harmer's appeal against his convictions for aggravated burglary and assault with a weapon and substituted convictions for burglary and assault, as a party to Winitana's actions. The court also directed that further submissions on sentence be filed.

Orders