Havea v The the King - [2022] NZCA 650

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA395/2020
[2022] NZCA 650

BETWEEN	LUIGI HAVEA Appellant
AND	THE KING Respondent

Hearing:	27 September 2022
Court:	Miller, Brewer and Moore JJ
Counsel:	NTC Batts for Appellant M J Lillico for Respondent
Judgment:	20 December 2022 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe applications for leave to adduce fresh evidence are declined.
CThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Background

On 29 February 2016, Jindarat Prutsiriporn was kidnapped from a car outside her home in Waterview, Auckland. The kidnappers threatened to shoot her and forced her into the boot of another car. Some 22 hours later, she attempted to escape while the car was moving. She opened the boot and fell onto the road. Her head hit the pavement and fractured her skull. She died of her injuries.
Four of those involved pleaded guilty to kidnapping. The appellant, Luigi Havea, and four co-defendants proceeded to trial. The jury found each guilty of kidnapping[1] and manslaughter.[2]
[1]Crimes Act 1961, s 209. Maximum penalty of 14 years’ imprisonment.
[2]Sections 160(2)(d), 171 and 177. Maximum penalty of life imprisonment.
On 18 September 2017, Palmer J sentenced Mr Havea to 10 years and three months’ imprisonment, with a minimum period of imprisonment of five years and one month.[3]
[3]R v Liev [2017] NZHC 2253 at [90].
Some two years and 10 months later, Mr Havea seeks leave to appeal his conviction. He claims that a miscarriage of justice resulted from trial counsel failing to:
(a)properly advise on the importance of giving or calling evidence;
(b)follow instructions to call particular witnesses or call witnesses that otherwise should have been called; and
(c)advance the defence case as instructed.

Leave to appeal out of time

Mr Havea’s proposed appeal is out of time.[4] An extension of time is required.[5] Whether such an extension is granted invariably reduces to the reasons for the delay and the merits of the proposed appeal.[6]
[4]Criminal Procedure Act 2011, s 231(2).
[5]Section 231(3).
[6]Mikus v R [2011] NZCA 298 at [26] citing R v Slavich [2008] NZCA 116 at [14].
Mr Havea has made an affidavit explaining the reasons for the delay. He says that the trial attracted the attention of gang members in prison. During the trial, some paperwork went missing from his cell, including pictures of him wearing a gang patch that did not belong to him. He claims these images angered members of the gang. He says he knew they would seek retribution and he feared for his and his family’s safety.
Mr Havea deposes that his fears were well founded. He says that after his trial his family home was burnt down. He was beaten up three times by gang members. He was stabbed by a gang member using a shank. He says the gang members said he claimed to be a gang member…

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 Havea v The the King

Details

AGLC: Havea v The the King [2022] NZCA 650
Case: [2022] NZCA 650
Decision Date: 20 December 2022 at 12.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Luigi Havea appealed his conviction and sentence for kidnapping and manslaughter, arguing that he was denied a fair trial by his trial counsel's failure to properly advise him on whether to give evidence, to call certain witnesses, and to advance the defence case as instructed. The Court of Appeal held that Havea's application for an extension of time to appeal was granted, but his applications for leave to adduce fresh evidence and to appeal against his conviction were declined. The Court held that Havea's trial counsel had properly advised him on whether to give evidence, and that he had instructed his counsel not to call certain witnesses, including his brother Panepasa. The Court also held that Havea's counsel had advanced the defence case in accordance with his instructions, and that the fresh evidence proposed by Havea's counsel would not have affected the safety of his convictions. The appeal was dismissed, and Havea's convictions and sentence were upheld.

Orders