Huritu v Police - [2021] NZSC 126

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 87/2021
[2021] NZSC 126

BETWEEN	CODY HURITU Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	William Young, Ellen France and Williams JJ
Counsel:	N P Chisnall and N T C Batts for Applicant M L Wong for Respondent
Judgment:	24 September 2021

JUDGMENT OF THE COURT

A The application for an extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

C The applications for leave to intervene by the Auckland District Law Society Inc and the Criminal Bar Association of New Zealand are dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant, Mr Huritu, was convicted after a judge‑alone trial of assault and breach of a protection order.[1] Following an unsuccessful appeal against conviction in the High Court,[2] Mr Huritu obtained leave to appeal to the Court of Appeal.[3] The Court of Appeal subsequently dismissed the appeal.[4] He now seeks leave to appeal to this Court.

Background

[1]New Zealand Police v Huritu [2019] NZDC 15221 (Judge Cooper).

[2]Huritu v New Zealand Police [2019] NZHC 2560 (Jagose J) [HC judgment].

[3]Huritu v New Zealand Police [2020] NZCA 208. The matter was referred to the Permanent Court for hearing.

[4]Huritu v New Zealand Police [2021] NZCA 15 (Cooper, Courtney and Collins JJ) [CA judgment].

The charges related to incidents involving Mr Huritu’s partner. The two were in a long‑term relationship, although on and off in nature.[5] The incident giving rise to the assault charge took place on 10 December 2018. When police visited Mr Huritu’s address, the complainant reported an assault. An officer took photographs of her injuries and she made a formal written statement to the police.
[5]The relationship was characterised by an extensive history of family violence: HC judgment, above n 2, at [3].
The matter was to proceed to trial on 18 July 2019 but the trial was adjourned after the complainant did not answer her witness summons and attend court. A warrant was issued leading to her arrest. She was bailed to attend the new trial date of 1 August 2019.
On 1 August 2019, the complainant did not attend court. A warrant was issued and the matter set down to the afternoon so that the warrant could be executed. Efforts by the police to locate her were unsuccessful. The trial Judge heard evidence from the constable who had made those inquiries including two visits to her home. On the afternoon of 1 August, Judge Cooper granted an application by the police to admit her formal statement as hearsay evidence, on the basis she could not be found.[6] The trial proceeded. The applicant elected not to call or give evidence. The Judge found the charges proved.[7]

The proposed appeal

[6]

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 Huritu v Police

Details

AGLC: Huritu v Police [2021] NZSC 126
Case: [2021] NZSC 126
Decision Date: 24 September 2021

CaseChat Overview and Summary

Cody Huritu sought leave to appeal against his conviction for assault and breach of a protection order. The case was heard by the Supreme Court of New Zealand. The applicant was convicted after a judge-alone trial, and his appeal against conviction was dismissed by the High Court. The Court of Appeal subsequently dismissed the appeal. The applicant sought leave to appeal to the Supreme Court, arguing that the Court of Appeal erred in concluding that the complainant was "unavailable as a witness" and that the requirements for dispensing with a hearsay notice were met. The Court held that the proposed appeal did not raise questions of general or public importance. The Court of Appeal had considered the relevant circumstances, including the complainant's earlier non-appearance and the history of the relationship between the applicant and the complainant, in concluding that the reasonable diligence test was met. The Court also considered all the bases in the statute for dispensing with a hearsay notice. The Court did not consider that the criteria for leave to appeal were met. The applications for intervention by the Auckland District Law Society and the Criminal Bar Association were dismissed as the question of whether leave should be granted was a legal question involving the application of settled criteria. The application for an extension of time to apply for leave to appeal was granted, and the application for leave to appeal was dismissed. The applications for leave to intervene were dismissed.

Orders