| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA592/2012 [2013] NZCA 339 |
| BETWEEN | MARK HETERAKA |
| AND | THE QUEEN |
| Hearing: | 15 July 2013 |
Court: | Wild, Heath and Keane JJ |
Counsel: | L L Heah for Appellant |
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
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.
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.
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.
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.
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.
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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- AGLC
- Heteraka v R [2013] NZCA 339
- Case
- [2013] NZCA 339
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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