On the evening of 4 September 2015 Wharepouri Heke became involved in an altercation with his brother, James Heke (James) over the ongoing care of their elderly mother. Mr Heke took a length of wood and hit James over the head at close range causing serious head injuries.
Following a jury trial in the District Court at Kaikohe, Mr Heke was convicted on one charge of causing grievous bodily harm with intent to cause grievous bodily harm. Judge McDonald imposed a sentence of eight years’ imprisonment.[1] Mr Heke appeals his conviction on the grounds that he was denied a fair trial as result of:
(a)being refused the right to consult and instruct a lawyer at the start of the trial;[2] and
(b)the cumulative effect of various errors during the trial.
[1]R v Heke [2017] NZDC 15920.
[2]New Zealand Bill of Rights Act 1990, ss 24(c) and (f) and 25.
Mr Heke also appeals his sentence on the ground that it is manifestly excessive as a result of the Judge taking too high a starting point.
Mr Heke requires leave to bring his appeal because it was filed slightly out of time. There is no prejudice to the Crown and no objection raised by it. Leave is accordingly granted.
The offending
Mr Heke was 51 years old at the time of the offending and had, for the preceding 20 years or so, lived with and been the primary carer of his elderly mother. He received a benefit for that purpose. Sometime in the month or so preceding the offending Mr Heke’s mother suffered a stroke and was admitted to hospital.
There was disagreement among Mr Heke’s siblings as to Mrs Heke’s ongoing care upon leaving hospital. James and a sister, Pearl Kovalyov (Pearl), proposed that Mrs Heke stay with Pearl while renovations were undertaken to Mrs Heke’s home and that James and his wife then move in with her to provide care. It was unclear from the evidence whether that proposal would see Mr Heke continue to reside at that house or not. Moreover, there was disagreement among other family members as to whether this was the appropriate course. Nevertheless, the proposal was acceptable to hospital staff and Mrs Heke was discharged into Pearl’s care.
Mr Heke had planned to…
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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AGLC
Heke v The Queen [2019] NZCA 256
Case
[2019] NZCA 256
Decision Date
CaseChat Overview and Summary
Wharepouri Heke appeals against his conviction and sentence for causing grievous bodily harm with intent to cause grievous bodily harm. Heke’s appeal against his conviction is based on two grounds: firstly, that he was denied a fair trial because he was not legally represented at trial; and secondly, that the trial was otherwise unfair as a result of a number of errors. The Court of Appeal considers that Heke’s lack of representation was not a result of the refusal of the trial Judge to adjourn the trial but a consequence of Heke’s own actions in dismissing counsel and not engaging counsel privately. The Court of Appeal further finds that the trial was fair despite the errors, as Heke’s account was rejected by the evidence and the assistance of Mr Moroney, who appeared in the capacity of amicus, was effective. The Court of Appeal allows Heke’s appeal against sentence. The Court of Appeal considers that the starting point of 10 years was too high and the discount allowed too low. The Court of Appeal substitutes a sentence of six years and ten months’ imprisonment. The Court of Appeal grants Heke’s application for an extension of time to file the notice of appeal and dismisses the appeal against conviction. The Court of Appeal allows the appeal against sentence. The Court of Appeal quashes the sentence of eight years’ imprisonment and substitutes a sentence of six years and ten months’ imprisonment.