Henare v Police - [2018] NZHC 65

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2017-441-46 [2018] NZHC 65

MICHAEL CAMPBELL HENARE

v

NEW ZEALAND POLICE

Hearing: 7 February 2018

Appearances:

S Jefferson for Appellant
M Mitchell for Crown

Judgment:

7 February 2018

ORAL JUDGMENT OF CHURCHMAN J

[1] This is an appeal by Michael Campbell Henare. Mr Henare was found guilty of burglary of a residential garage in Napier at a Judge alone trial before Judge A J Adeane at the Napier District Court on 5 September 2017.1 The charge was brought under s 231(1)(a) of the Crimes Act 1961. He was later sentenced to eight months of home detention with six months’ post-detention conditions and ordered to pay reparation of $2188.2

[2] Mr Henare now appeals his conviction on the basis that there was insufficient evidence to establish his guilt beyond reasonable doubt. Counsel for Mr Henare,

1 R v Henare [2017] NZDC 29004.
2 R v Henare [2017] NZDC 26514.

HENARE v NEW ZEALAND POLICE [2018] NZHC 65 [7 February 2018]

Mr Jefferson, submits that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.

[3] The Crown represented by Ms Mitchell opposes the appeal on the basis that faced with an incomplete alibi, DNA evidence placing Mr Henare at the scene during the relevant time period the burglary occurred and the absence of any plausible alternative explanation for his DNA being found on a cigarette butt located at the scene of the burglary, the conclusion of the District Court Judge was properly available to him on the evidence.

[4] By way of factual background the appellant, having recently returned from Australia, presented to mental health services with his mother on 4 May 2015. He was assessed and sent home only to return on 6 May 2015 when he was admitted to the crisis respite facility Te Whare Aronui in Hastings.

[5] The records of Te Whare Aronui show a note at 2.45pm on 7 May 2015 that the appellant had been out of the unit twice in the morning and that his health had deteriorated such that he was then placed under constant surveillance.

[6] On 8 May, the appellant attended a meeting with his family at the Napier Health Centre. As Ms Mitchell has noted in her oral submissions it is not clear exactly which family members attended the meeting neither is it clear who, if anyone, accompanied Mr Henare to and from the meeting. Te Whare Aronui’s notes record his return at 3pm on 8 May 2015. His condition further deteriorated. A compulsory inpatient treatment order was made and he was admitted to the mental health inpatient service, remaining in hospital until 27 May 2015.

[7] The complainant’s garage was burgled sometime between 4.30pm on Thursday

7 May 2015 and 2.20pm on Saturday 9 May 2015. The appellant’s DNA was on a cigarette butt located in the garage.

District Court decision

[8]…

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 Henare v Police

Details

AGLC: Henare v Police [2018] NZHC 65
Case: [2018] NZHC 65
Decision Date: 7 February 2018

CaseChat Overview and Summary

Michael Campbell Henare appeals his conviction for burglary of a residential garage in Napier, which was determined by Judge A J Adeane in a Judge alone trial at the Napier District Court. The appeal focuses on the sufficiency of evidence to establish guilt beyond reasonable doubt. The Crown argues that the evidence was sufficient, while the appellant contends there was insufficient evidence to establish his guilt. The central legal issue is whether the District Court Judge erred in assessing the evidence, resulting in a miscarriage of justice.

The High Court found that the appellant’s alibi was incomplete, as there were gaps in the records of his movements and he was not under constant surveillance during the relevant time. The court accepted that the DNA evidence, which showed a significant statistical likelihood that the DNA on a cigarette butt found at the scene originated from the appellant, was strong evidence of his presence at the scene. The High Court concluded that the appellant's election not to give evidence did not prejudice his case. Ultimately, the High Court found no error in the District Court's assessment of the evidence.

The appeal was dismissed, affirming the conviction and sentence imposed by the District Court. The High Court found that the combination of the incomplete alibi and the DNA evidence was sufficient to support the appellant's conviction for burglary.

Orders