Hikaka-Beattie v The King

[2023] NZCA 480

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA310/2023
 [2023] NZCA 480

BETWEEN	SHAYDEN COLE HIKAKA-BEATTIE Applicant
AND	THE KING Respondent

Court:	Cooper P, Palmer and Jagose JJ
Counsel:	O S Winter for Applicant S R Lamb for Respondent
Judgment: (On the papers)	4 October 2023 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Jagose J)

1. After judge-alone trial before Judge Northwood in the District Court at Palmerston North on 23 August 2022,[1] Shayden Hikaka-Beattie was convicted of using a firearm against an enforcement officer (x 2),[2] kidnapping,[3] failing to stop (x 2),[4] and dangerous driving (x 2).[5]  The Judge imposed concurrent sentences, capped by six years and three months’ imprisonment for the firearm offences.[6]  Grice J dismissed Mr Hikaka-Beattie’s appeal against his convictions.[7]

   [1]R v Hikaka-Beattie [2022] NZDC 16242 [District Court conviction decision].

   [2]Crimes Act 1961, s 198A(1).

   [3]Section 209.

   [4]Land Transport Act 1998, ss 52A(1)(a)(ii), (5), (6) and 114(2).

   [5]Section 35(1)(b).

   [6]R v Hikaka-Beattie [2023] NZDC 3208 at [50]–[51].

   [7]Hikaka-Beattie v R [2023] NZHC 985 [High Court conviction appeal] at [97].

2. Mr Hikaka-Beattie now seeks leave to bring a second appeal against his convictions, effectively only against the firearm convictions.  Mr Winter would argue on appeal that the evidence did not establish beyond reasonable doubt the object presented by Mr Hikaka-Beattie was a firearm.  Accordingly, those convictions amount to a miscarriage of justice justifying his second appeal.

3. We may not grant leave for a second appeal unless satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[8]  An appeal is unlikely to give rise to an issue of general or public importance unless it raises an issue of general principle or of general importance in the administration of the criminal law, including one that has broad application beyond the circumstances of the particular case.[9]  By “miscarriage of justice” it is meant that something has gone wrong with the trial which put at risk a more favourable outcome for Mr Hikaka-Beattie or meant that the trial was unfair or a nullity.[10]  The threshold is high; not every error will amount to a miscarriage of justice.[11]

   [8]Criminal Procedure Act 2011, s 237(2).

   [9]Cancian v Tauranga City Council [2023] NZCA 257 at [7] citing McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

   [10]Criminal Procedure Act, s 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

   [11]Otis v Police [2019] NZCA 231 at [4] citing McAllister v R, above n 10, at [38].

4. Mr Hikaka-Beattie’s application for leave essentially is to contest the evidential foundation for the object he presented to police being a firearm as defined in s 2 of the Arms Act 1983.  Specifically, Mr Winter would argue on appeal “[t]he area of the object that would contain the critical componentry for it to qualify as a ‘firearm’ under the Act was obscured from view.”  The argument was the subject of his unsuccessful application for discharge under s 147 of the Criminal Procedure Act 2011;[12] the concurrent findings of the District and High Courts were that it was beyond reasonable doubt that Mr Hikaka-Beattie twice presented a firearm to police.[13]  There plainly was an evidential basis for the trial Judge to infer the object was a firearm.

   [12]R v Hikaka-Beattie [2022] NZDC 16199.

   [13]District Court conviction decision, above n 5, at [114]; and High Court conviction appeal, above n 8, at [90]–[94].

5. There is nothing in Mr Hikaka-Beattie’s proposed appeal involving any matter of general or public importance, and the application for leave is not presented that way.  We also do not see anything occurring relating to trial that may offer the prospect of any more favourable outcome for Mr Hikaka-Beattie.  There is no miscarriage of justice.

6. Mr Hikaka-Beattie’s application for leave to bring a second appeal is dismissed.

Solicitors:
WinterWoods Lawyers, Palmerston North for Applicant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent