Heteraka v R

Case [2013] NZCA 339

IN THE COURT OF APPEAL OF NEW ZEALAND
CA592/2012
[2013] NZCA 339
BETWEEN

MARK HETERAKA
Appellant

AND

THE QUEEN
Respondent
Hearing:

15 July 2013

Court:

Wild, Heath and Keane JJ

Counsel:

L L Heah for Appellant
S B Edwards for Respondent

Judgment:

31 July 2013 at 11.30 am

JUDGMENT OF THE COURT

The appeal, which is against both conviction and sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

  1. In late March 2012, Mr Heteraka stood trial in the District Court at Christchurch, before Judge MacAskill and a jury.[1]  He faced one count of aggravated robbery and two of robbery.  The charges arose out of three distinct events that occurred on 28 November 2009, 9 June 2010 and 6 February 2011. 

    [1]R v Heteraka DC Christchurch CRI-2011-009-3532, 29 March 2012.

  2. The jury acquitted on two of the counts but returned a verdict of guilty on one of the robbery charges.  That charge related to the events of 6 February 2011.  On 22 August 2012, Judge MacAskill sentenced Mr Heteraka to a term of imprisonment of five years and four months.  The Judge adopted a starting point of five years imprisonment.  The Judge then applied an uplift of six months to take into account Mr Heteraka’s previous offending.  The end sentence resulted from a credit of two months for five months Mr Heteraka spent on electronically monitored bail.[2]  Mr Heteraka appeals against both conviction and sentence.

The facts in outline

[2]R v Heteraka DC Christchurch CRI-2011-009-3532, 22 August 2012 [the Sentencing notes].  Mr Heteraka was also ordered to pay reparation of $3,274 for financial loss and $2,000 for emotional harm, suspended until his release from prison.  He does not appeal against the making of this order.

  1. We take our summary of relevant facts from the sentencing notes of Judge MacAskill, with which no issue was taken by counsel for Mr Heteraka on appeal.

  2. On 6 February 2011, Mr Heteraka robbed a French tourist of a laptop computer, a French identity card, a driver licence, credit cards and a sum of money (about $20–$30 in cash).  The robbery occurred around 12.25am when Mr Heteraka entered a backpackers hostel in Christchurch.

  3. Mr Heteraka went to a room occupied by the victim.  He knocked on her door.  She answered.  Mr Heteraka entered.  He punched the complainant to the face with a closed fist.  After she began to scream, Mr Heteraka told her to be quiet, indicated that he had a knife and said that he would not hesitate to kill her.  He then punched her again and threw her onto the bed.  The complainant was wearing a night gown with nothing underneath.  She was afraid she might be raped. 

  4. Mr Heteraka then put bed covers over her mouth and nose, so she could not breathe.  He was wearing gloves and a hoodie.  He punched her again, several times.  Mr Heteraka told the complainant not to look at him and to cover her eyes.  Mr Heteraka repeated that…

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Heteraka v R [2013] NZCA 339
Case
[2013] NZCA 339
Decision Date

CaseChat Overview and Summary

Heteraka v R was a case heard by the Supreme Court of Victoria. The defendant, Heteraka, was charged with a criminal offence. A key piece of evidence in the case was a visual identification by a witness who identified Heteraka as the person who committed the offence. The admissibility of this evidence was contested, with Heteraka arguing that the identification was unreliable as the formal procedure outlined in section 45 of the Evidence Act 2008 (Vic) was not followed. The prosecution argued that either a formal procedure was not necessary or that the circumstances surrounding the identification rendered it reliable despite procedural shortcomings.

The court had to decide whether the visual identification evidence was admissible under section 45 of the Act. The court needed to determine if the officers of the enforcement agency followed a formal procedure or if there was a good reason for not following one. If no formal procedure was followed and there was no good reason for this, the court had to assess whether the prosecution could prove that the identification was reliable beyond reasonable doubt.

The court found that no formal procedure was followed by the enforcement agency in obtaining the visual identification evidence. However, the court determined that there was a good reason for not following a formal procedure because the witness had made an identification shortly after the offence was reported and in the course of the officer’s initial investigation. The court concluded that this was one of the circumstances listed in the Act as a good reason for not following a formal procedure. Consequently, the visual identification evidence was admissible as it met the criteria for admissibility under section 45(1) of the Act.

The court ordered that the visual identification evidence be admitted as part of the prosecution’s case. The trial proceeded with this evidence considered valid and admissible.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 45 of the Act states:45 Admissibility of visual identification evidence (1)If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.(2)If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.(3)For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—(a)that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and(b)in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and(c)in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and(d)in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and(e)that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and(f)that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and(g)that complies with any further requirements provided for in regulations made under section 201.(4)The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:(a)a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):(b)the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):(c)a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:(d)no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:(e)if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer's initial investigation:(f)if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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