Maligi v The Queen - [2015] NZCA 95

IN THE COURT OF APPEAL OF NEW ZEALAND

CA13/2014
[2015] NZCA 95

BETWEEN	SAVANE MALIGI Appellant
AND	THE QUEEN Respondent

CA110/2014
AND BETWEEN	ISAAC MALIGI Appellant
AND	THE QUEEN Respondent

Hearing:	16 February 2015
Court:	Miller, MacKenzie and Lang JJ
Counsel:	I Jayanandan for Savane Maligi J M Northwood for Isaac Maligi A Markham for Respondent
Judgment:	25 March 2015 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Background

Both appellants were convicted, following trial before Judge Andrée Wiltens and a jury in the District Court in Manukau in October 2013, on one count of aggravated robbery. They were subsequently sentenced; Savane Maligi to three years and nine months (uplifted to four years for other unrelated offending), and Isaac Maligi to three years and six months.[1] They appeal against their conviction. Appeals against sentence, which were also filed, are not pursued.
[1]R v Maligi DC Manukau CRI-2011-092-10855, 13 December 2013.
The Crown case was that on the evening of 27 June 2011 the appellants were in a van driven by a third person, Mr Stowers. They stopped alongside another group of youths outside the Clendon Shopping Centre. Isaac got out of the vehicle and confronted the group, demanding property from them. He encountered some resistance and Savane got out to assist. Isaac produced a pistol and in the ensuing fight the complainant was kicked and punched and struck from behind on the head with the pistol. The appellants stole his bag containing $15 in cash, a cellphone and an MP3 player. Mr Stowers also got out of the car at some stage and told the appellants to leave. The three got in the car and drove off. The appellants’ contention was that they stopped to ask the group for a cigarette and a mutual fight developed.
Initially, all three participants, Savane, Isaac and Mr Stowers, were charged. The matter proceeded to trial in July 2013, but that trial was aborted because of issues over Mr Stowers’ fitness to stand trial. The charge was originally laid under s 235(c) of the Crimes Act 1961 as aggravated robbery armed with a weapon (the pistol). An amendment was allowed, at the beginning of the July trial, to a charge under s 235(b) of aggravated robbery together with any other person or persons. The indictment at both the July trial and the October trial was an indictment that Savane, Isaac and Mr Stowers, being together, robbed the complainant.
When Mr Stowers was found fit to stand trial, the October trial date was fixed. When that trial began on 21 October 2013, counsel for Mr Stowers again raised issues as to fitness. The Judge decided to conduct the enquiry under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) as to Mr Stowers’ involvement in the offending at the same time as the jury trial.[2] At the end of the Crown case, on 25 October 2013, the Judge…

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 Maligi v The Queen

Details

AGLC: Maligi v The Queen [2015] NZCA 95
Case: [2015] NZCA 95
Decision Date: 25 March 2015 at 2.30 pm

CaseChat Overview and Summary

In Maligi v The Queen, the Court of Appeal of New Zealand dismissed the appeal against the convictions of Savane and Isaac Maligi for aggravated robbery. The appellants argued that the trial judge's handling of the case, particularly in relation to a third participant, Mr Stowers, resulted in a miscarriage of justice. The court found that the trial judge's actions did not prejudice the appellants' right to a fair trial and that the evidence against them was strong. The court also considered the appellants' arguments regarding the summing up and directions to the jury, and found that these did not unfairly prejudice the appellants or create a risk of an unfair trial. The appeal was ultimately dismissed, and the convictions were upheld. The court did not make any final orders beyond the dismissal of the appeal.

Orders