Hei v The Queen - [2021] NZSC 48

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: DISTRICT COURT ORDER IN [2019] NZDC 8372 PROHIBITING PUBLICATION OF THE NATIONALITY AND COUNTRY OF RESIDENCE OF MS H UNDER S 205 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 95/2020
[2021] NZSC 48

BETWEEN	PIHI HEI Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	M E Goodwin and C M Chester‑Cronin for Applicant M J Lillico and A D H Colley for Respondent
Judgment:	24 May 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant was convicted after trial of sexual offending in relation to two complainants and of one charge of stupefying the complainant, Ms F.[1] He was sentenced to a term of 16 years’ imprisonment with a minimum period of nine years’ imprisonment.[2] He appealed unsuccessfully to the Court of Appeal against conviction and now seeks leave to appeal to this Court against conviction.[3]

Background

[1]He was acquitted of one of the charges.

[2]R v Hei [2019] NZDC 14139 (Judge Ingram).

[3]Hei v R [2020] NZCA 464 (Gilbert, Thomas and Dunningham JJ) [CA judgment]. The Court of Appeal allowed the applicant’s appeal against sentence in part.

At the time of the incidents giving rise to the charges, the applicant operated an accommodation business (the Retreat) in a fairly remote coastal area. The complainants, foreign nationals in their 20s at the time, were each employed by the applicant, who was in his late 50s at the time of the offending against Ms H, to work at the business.
The complainant Ms H arrived at the Retreat in the latter half of 2013. She said that after she had been at work for a couple of weeks or so, she was indecently assaulted and raped over the course of an evening. She said that she was raped again the next day. She left the Retreat that same day.
Ms F arrived in New Zealand to take up her employment in late August 2017. She was met on her arrival by the applicant. On their journey to the Retreat, they stayed the night at a motel the applicant had booked for them. Ms F said that after indecently assaulting her in the room, he forced her to have oral sex, and then raped her. They continued their journey to the Retreat the next day. Ms F said she was sexually assaulted regularly (including by rape) over the next ten days or so. She also described an incident when the applicant forced her to drink a large quantity of wine (approximately 10 glasses), after which she lost consciousness. This gave rise to the charge of stupefaction. When she awoke, she contacted her insurance company who advised her to go to a hospital. She left the Retreat soon…

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 Hei v The Queen

Details

AGLC: Hei v The Queen [2021] NZSC 48
Case: [2021] NZSC 48
Decision Date: 24 May 2021

CaseChat Overview and Summary

The applicant, Pihi Hei, sought leave to appeal to the Supreme Court of New Zealand against his convictions for multiple counts of sexual offending against two complainants, as well as one charge of stupefying one of the complainants. Hei was sentenced to 16 years' imprisonment with a non-parole period of nine years. The applicant had previously appealed to the Court of Appeal against his convictions and sentences, with the Court of Appeal allowing the appeal against sentence in part. Hei's application for leave to appeal to the Supreme Court was dismissed.

The legal issues in the case centred on whether the Crown's reference to Rohypnol during the closing arguments created an illegitimate prejudice due to the absence of any evidence that the drug was administered to the complainant. Additionally, Hei argued that the trial judge was incorrect to indicate that the evidence of a third party related to character rather than propensity, and that this misdirection led to a substantial miscarriage of justice.

The Supreme Court found that the evidence of the third party, Mr Cornes, was relevant to the issue of consent and the applicant's state of mind. The Court of Appeal had already ruled that the evidence was admissible, and the Supreme Court found no indication of a miscarriage of justice in that ruling. Regarding the use of the term 'character' instead of 'propensity', the Supreme Court found that the trial judge's directions on the use of propensity evidence were sufficient, and the misdirection did not give rise to a question of general or public importance.

The application for leave to appeal was dismissed.

Orders