Mafi v R - [2015] NZCA 408

IN THE COURT OF APPEAL OF NEW ZEALAND

CA388/2014
[2015] NZCA 408

BETWEEN	JAMES MICHAEL MAFI Appellant
AND	THE QUEEN Respondent

CA422/2014
BETWEEN	TOTI JUNIOR TOTI Appellant
AND	THE QUEEN Respondent

Hearing:	10 June 2015 (further submissions 12 and 19 June 2015 and 13 and 28 August 2015)
Court:	Harrison, Andrews and Gilbert JJ
Counsel:	J A Kincade for Appellant (CA388/2014) I A Jayanandan for Appellant (CA422/2014) JEL Carruthers for Respondent (CA388/2014 and CA422/2014)
Judgment:	4 September 2015 at 10 am

JUDGMENT OF THE COURT

AThe appeal against conviction in CA388/2014 is dismissed.
BThe appeal against sentence in CA388/2014 is allowed. The sentence of nine years imprisonment is quashed. A sentence of seven and a half years is substituted.

C The application for an extension of time to appeal in CA422/2014 is granted.

D The appeal against conviction and sentence in CA422/2014 is dismissed. ____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Toti Junior Toti and James Mafi were found guilty following a trial before Judge Dawson and a jury in the Auckland District Court in April 2014 on joint charges of assault with intent to injure and of causing grievous bodily harm with intent to cause that result. Mr Toti was also found guilty on a separate charge of injuring with intent to injure. Each was convicted and sentenced to nine years imprisonment.[1] Both appeal against conviction and sentence.
[1]R v Mafi and Toti DC Auckland CRI-2012-004-18382, 27 June 2014.
Ms Jayanandan, who was not trial counsel, advances Mr Toti’s appeal against conviction on the grounds that:
(a)the prosecutor unfairly played and commented upon closed circuit television (CCTV) footage in his opening address to the jury;
(b)the prosecutor unfairly introduced the alternative of liability as a secondary party to that of principal when closing to the jury;
(c)the Judge’s directions on party liability were confusing or not balanced; and
(d)trial counsel erred when closing to the jury by effectively conceding that Mr Toti was guilty on the count of injuring with intent to injure and that this error was compounded by the Judge when directing the jury.
Ms Kincade advances Mr Mafi’s appeal against conviction on the grounds that the Judge’s directions on self-defence were inadequate in that:
(a)they required the jury to consider self-defence after having considered the elements of the offending;
(b)they referred inappropriately to the need for a reasonable balance between the force which Mr Mafi used and the threat which he perceived and did not adequately explain the concept of reasonable force;
(c)they did not include directions about a pre-emptive act of self‑defence or the absence of any duty to retreat; and
(d)they included a factual error about the duration of Mr Mafi’s absence from the CCTV footage.

Facts

The essential facts were not in dispute at trial. What was in dispute was the nature and extent of the participation in the offending of each of Messrs Toti and Mafi and whether Mr Mafi, when striking one of the victims, was acting…

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 Mafi v R

Details

AGLC: Mafi v The Queen [2015] NZCA 408
Case: [2015] NZCA 408
Decision Date: 4 September 2015

CaseChat Overview and Summary

The appellants, Toti Junior Toti and James Mafi, were convicted in the Auckland District Court for their participation in a violent altercation with two victims, resulting in grievous bodily harm. Both appellants appealed against their convictions and sentences. Toti's appeal was based on claims of prosecutorial misconduct, improper directions on party liability by the trial judge, and ineffective trial counsel. Mafi's appeal centred on alleged inadequacies in the trial judge's directions on self-defence and claimed factual errors. The Crown appealed against the sentence imposed on Mafi, arguing it was unduly lenient.

The Court of Appeal dismissed Toti's appeal against conviction, finding no merit in his claims regarding prosecutorial misconduct, party liability directions, or trial counsel. The Court found the Crown's case against Toti to be very strong based on CCTV footage and witness evidence. The Court also dismissed Mafi's appeal against conviction, noting that while there were some minor deficiencies in the trial judge's directions on self-defence, they did not lead to a miscarriage of justice. The Court found Mafi's defence to be largely discredited by his own admissions during cross-examination.

Regarding sentence, the Court allowed Mafi's appeal, finding the original nine-year sentence to be excessive. The Court noted that while the starting point for sentencing was correctly set in band 3, the appellant's time spent on bail and his assistance to the Crown in another trial warranted additional credit. The Court substituted a sentence of seven and a half years imprisonment for Mafi. The Court dismissed Toti's appeal against sentence, finding the original sentence to be appropriate given the circumstances of the offending.

In conclusion, the Court dismissed Toti's appeals against conviction and sentence. Mafi's application for an extension of time to appeal was granted, his appeal against conviction was dismissed, and his appeal against sentence was allowed. The original nine-year sentence was quashed, and a sentence of seven and a half years imprisonment was substituted for Mafi.

Orders