Huritu v Police - [2019] NZHC 2560

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2019-463-84

[2019] NZHC 2560

BETWEEN
CODY HURITU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 October 2019

Appearances:

G R Tomlinson for T Braithwaite for the appellant G Banuelos for the respondent

Judgment:

8 October 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:
Gowing & Co Limited, Whakatane Braithwaite Law Ltd, Rotorua Gordon Pilditch, Rotorua

HURITU v NEW ZEALAND POLICE [2019] NZHC 2560 [8 October 2019]

[1] On 1 August 2019, Cody Huritu was found guilty of assaulting his partner1 and breaching a protection order,2 following a judge-alone trial before Judge P W Cooper in the District Court at Rotorua.3 Mr Huritu pleaded guilty to a further charge of breaching release conditions when he failed to report to his probation officer.4 On 22 August 2019, Mr Huritu received an end sentence of one year and six months’ imprisonment.5

[2] Mr Huritu appeals against a pre-trial decision admitting hearsay evidence.6 He says the introduction of that evidence resulted in his conviction and accordingly also appeals against conviction. The appeal against the pre-trial decision is out of time.7 I deal with the appeal as an appeal against conviction.

Background

—the alleged incident

[3] The complainant is Mr Huritu’s sometime partner over 20 years, with whom he has two children. There is extensive history of family violence recorded between them, with her being the victim in more than a third of his 21 violent offences. A temporary protection order was served on Mr Huritu on 17 June 2018. It became final on 18 October 2018 but had not been served on Mr Huritu.

[4] On 10 December 2018, the complainant and Mr Huritu were at their home address in Rotorua. They argued over who was to clean a pot he had burned cooking food. The complainant retreated to the sitting room and sat on the couch. Mr Huritu followed her and became verbally abusive. He began punching her head. She rolled onto her side and raised her arms to protect herself. Mr Huritu paused his assault long enough for the complainant to sit up. After she demanded he leave, he hit her once to

1      Crimes Act 1961, s 194A.
2      Domestic Violence Act 1995, ss 19(1)(a) or (b), 49(1)(b) and 49(3).
3      Police v Huritu [2019] NZDC 15221 [District Court decision].
4      He received a concurrent sentence of two months’ imprisonment.
5      Police v Huritu [2019] NZDC 16816. A sentence of 12 months’ imprisonment was imposed in relation to the assault charge, with a cumulative six-month sentence imposed for the breach of a protection order.
6      Police v Huritu [2019] NZDC 15660 [Pre-trial ruling].
7      Criminal Procedure Act 2011, s 220(2). A notice of application for leave to appeal a pre-trial decision must be filed within 20 working days after the date of the decision to which the appeal relates.

the right eye with enough force to cause immediate bruising. When she screamed and…

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.

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Details

Case: [2019] NZHC 2560
Decision Date: 8 October 2019

CaseChat Overview and Summary

Cody Huritu, the appellant, was convicted by the District Court at Rotorua of assaulting his partner and breaching a protection order. He appeals against the conviction, arguing that the trial judge erred in admitting hearsay evidence from the complainant, who did not attend the trial. The appeal was heard by Jagose J in the High Court at Rotorua. The appeal against the pre-trial decision was out of time. The central legal issue was whether the judge erred in admitting the complainant's hearsay statement as evidence. The appeal was assessed for any risk of a miscarriage of justice. The court examined whether the complainant was truly unavailable, the reliability of the statement, and whether its probative value outweighed its prejudicial effect. The court found that reasonable diligence was exercised in attempting to locate the complainant, and the statement was reliable based on its detailed nature and consistency with other evidence. The probative value of the statement outweighed its prejudicial effect, as it was crucial to the prosecution's case and the defence still had avenues to challenge the evidence. The appeal was dismissed, as no miscarriage of justice was established.

Orders