Malofie v The Queen - [2014] NZCA 419

IN THE COURT OF APPEAL OF NEW ZEALAND

CA661/2013
[2014] NZCA 419

BETWEEN	JOE IOELU MALOFIE Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2014
Court:	Stevens, Lang and Clifford JJ
Counsel:	R M Gould for Appellant D R La Hood for Respondent
Judgment:	27 August 2014 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Malofie was convicted by a jury in the Wellington District Court on a charge of sexual violation by rape. He appeals against conviction on the ground that he has been the victim of a miscarriage of justice caused by errors made by his trial counsel.

Background

The charge was laid as a result of an incident that occurred at around 6 am on the morning of 16 September 2011. The Crown alleged that Mr Malofie had raped the complainant, a woman he had not met prior to that date, in toilets situated on Manners Street in central Wellington.
The complainant gave the bulk of her evidence-in-chief at trial by way of a videotaped interview that the police undertook with her at the Wellington Police Station on 16 September 2011. During the interview the complainant said that on the evening of 15 September 2011, she and a friend drank wine at her home before taking a taxi into Courtney Place at about 2 am. There they went to two bars, where the complainant drank rum and sangria. They then moved on to the Fringe Bar at the top of Cuba Street, where they continued drinking.
Whilst the complainant’s friend was in the bathroom at the Fringe Bar, the complainant became involved in a verbal altercation with another patron in the bar. This caused the bar manager to instruct her staff to ask the complainant and her friend to finish their drinks and leave. After they had finished their drinks, the complainant and her friend went outside and began talking to other patrons who were sitting at outside tables. The complainant’s friend gave one of these persons some money, and asked him to buy drinks for them all. A member of the bar staff subsequently observed the complainant and her friend consuming alcohol outside the bar, and removed their drinks from them. He then repeated his direction that the complainant and her friend were to leave the premises.
At that point the complainant’s friend became argumentative and abusive. He also demanded that the bar staff refund the cost of the drinks he had purchased. His conduct reached the point where the bar staff were forced to call the police, who attended the scene a short time later. After speaking to the complainant’s friend, the police discovered there was an outstanding warrant for his arrest. They then arrested him and took him to the Wellington Central Police Station. Before he left, the complainant’s friend gave the complainant his cellphone. He also gave her his eftpos card so that she could take a taxi…

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 Malofie v The Queen

Details

AGLC: Malofie v The Queen [2014] NZCA 419
Case: [2014] NZCA 419
Decision Date: 27 August 2014 at 3.00 pm

CaseChat Overview and Summary

Joe Ioeuie Malofie appeals against his conviction for sexual violation by rape, which was made by the jury in the Wellington District Court. The appeal is based on the ground that he has been the victim of a miscarriage of justice caused by errors made by his trial counsel. The court finds that trial counsel's strategy did not result in a miscarriage of justice as it was unlikely Malofie would give evidence at trial, and the primary lines of defence were consent and/or reasonable belief in consent. The court also finds that trial counsel's failure to call Malofie to give evidence did not amount to an error as Malofie did not appreciate the risks inherent in not giving evidence, and trial counsel had correctly assessed that the risks of giving evidence outweighed the risks of not giving evidence. The appeal against conviction is dismissed.

Orders