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Hohua v R

Hohua v R

Case [2019] NZCA 533 5 November 2019

Murderous Intent

Prosecutorial Misconduct

Jury Unanimity

Appeal

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA47/2018
[2019] NZCA 533

BETWEEN	ROBERT ROUPERE HOHUA Appellant
AND	THE QUEEN Respondent

Hearing:	14 October 2019
Court:	French, Lang and Mander JJ
Counsel:	N M Dutch for Appellant J E L Carruthers for Respondent
Judgment:	5 November 2019 at 9.30 am

JUDGMENT OF THE COURT

A The application to admit fresh evidence on appeal is granted.

B The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

Robert Hohua was found guilty by a jury of murdering his partner, Marie Harlick. He was sentenced to life imprisonment with a minimum non-parole period of 17 years.[1] He appeals both his conviction and sentence.

Background

[1]R v Hohua [2018] NZHC 76.

On the day of Ms Harlick’s death, she and Mr Hohua had consumed alcohol together at her house with some friends. He returned to his address in order to comply with a bail curfew. He was on active charges that involved allegations of violence against Ms Harlick. Later that night, Mr Hohua became fixated with the idea that Ms Harlick was being unfaithful to him. He returned to her address and sought to gain entry.
Finding the door locked, Mr Hohua became increasingly angry and broke a window in order to enter the house. He found Ms Harlick coming through the back door in a heavily intoxicated state. Mr Hohua asked her where she had been. When she failed to reply he punched her in the head several times causing her to fall to the ground.
Despite her unconscious or semi-conscious state, Mr Hohua continued his attack. He struck her with a combination of punches, kicks and stomps to her head and body as she lay prone on the floor. Some 36 separate injuries were inflicted. She suffered fractures to her jawbone, nose, eye socket and to other parts of her face, and extensive bruising and lacerations to her head, including a small subarachnoid haemorrhage. Other injuries were inflicted to Ms Harlick’s body. Her mesentery was ruptured resulting in severe internal bleeding.[2]
[2]The mesentery is a fold of membrane that attaches the intestine to the posterior abdominal wall.
Neighbours who gave evidence described sounds of banging and stomping coming from the address. One neighbour heard a male voice yelling “get up” before he called the police. Some eight minutes after making that call, he heard the male voice yell words to the effect “get up or I’ll kill you” or “get up before I kill you”, prompting the witness to again call the police. The stomping, banging and crashing continued for a few minutes more.
After his assault, Mr Hohua dragged Ms Harlick to the bathroom and placed her in the bath before running water over her. He removed some of her wet clothing and then carried her to a bedroom where he laid her on a mattress and covered her with blankets. The couple’s 19-month-old daughter,…

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 Hohua v R

Details

AGLC: Hohua v R [2019] NZCA 533
Case: [2019] NZCA 533
Decision Date: 5 November 2019 at 9.30 am

CaseChat Overview and Summary

The appellant, Robert Roupere Hohua, was convicted of murdering his partner, Marie Harlick, and was sentenced to life imprisonment with a minimum non-parole period of 17 years. He appealed both his conviction and sentence. The appeal against conviction was based on several grounds, including the submission that the trial judge should have directed the jury to be unanimous on the form of murderous intent before finding that element of the charge proved. The appeal against sentence was based on a cultural report obtained pursuant to s 27 of the Sentencing Act 2002. The report was not available to the trial judge and Hohua sought leave to adduce it as fresh evidence on the appeal.

The Court of Appeal held that the appeal against conviction must fail. The Court found that the trial judge's directions to the jury were unduly favourable to Hohua on the point of unanimity and did not give rise to any miscarriage. The Court also held that the appeal against sentence was declined. The Court found that the sentencing judge was adequately appraised of Hohua's background to be sufficiently informed about whether those circumstances should result in any material adjustment to the minimum term of imprisonment. The Court granted the application to admit fresh evidence on appeal, but declined the appeal against sentence.

The Court of Appeal dismissed the appeals against conviction and sentence.

Orders