Manirakiza v Police - [2020] NZHC 1555

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-451

[2020] NZHC 1555

BETWEEN
EMMANUEL MANIRAKIZA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 June and 1 July 2020

Appearances:

D Taumihau and P S Dean for Appellant J V Barry for Respondent

Judgment:

3 July 2020

JUDGMENT OF LANG J

[on appeal against conviction]

Solicitors:
Crown Solicitor, Auckland

MANIRAKIZA v NEW ZEALAND POLICE [2020] NZHC 1555 [3 July 2020]

[1] Mr Manirakiza was found guilty on a charge of indecent assault following a Judge-alone trial before Judge A C Roberts on 19 October 2019.1 On the same date the Judge sentenced Mr Manirakiza to nine months supervision.

[2] Mr Manirakiza appeals against conviction on the basis that his trial counsel, Mr Paul Heaslip, erred in several respects in conducting Mr Manirakiza’s defence. Mr Manirakiza says Mr Heaslip failed to advise him the Judge could take into account the evidence of the female complainant and to advise him he could give evidence in his own defence. He also says Mr Heaslip failed to properly brief the only witness called for the defence at trial. This resulted in the witness giving evidence that was unfavourable to the defence.2

[3] The appeal must be determined in accordance with s 232 of the Criminal Procedure Act 2011 (the Act). This Court is required to allow the appeal if for any reason a miscarriage of justice has occurred.3 In this context a miscarriage of justice will have occurred if an error or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected.4

The hearing in the District Court

[4] It was common ground that there was a lengthy history of acrimony between Mr Manirakiza and the complainant. They lived on opposite sides of a shared driveway. The discord resulted in the complainant serving a trespass order on Mr Manirakiza prohibiting him from coming onto her property.

[5] The prosecution called two witnesses, the female complainant and a police officer who responded to a call from neighbours who heard the incident that resulted in Mr Manirakiza being charged.

1      New Zealand Police v Manirakiza [2019] NZDC 26424
2      In closing submissions Mr Taumihau abandoned grounds of appeal alleging Mr Heaslip had failed to ensure other defence witnesses were called to give evidence and that he failed to take adequate steps to obtain an adjournment of the trial at the close of the Crown case.
3      Criminal Procedure Act 2011, s 232(c).
4      Section 232(4)(a).

[6] On the evening of Saturday 4 August 2018, Mr Manirakiza was dropped off at the driveway to his address by two friends, Messrs Olivier Mugisho and Nkwame Osei. The complainant said that as Mr Manirakiza walked down the driveway to his address he saw the complainant in the carport of her address. He approached her and began to make offensive and inappropriate remarks. He then walked up to her 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: [2020] NZHC 1555
Decision Date: 3 July 2020

CaseChat Overview and Summary

Emmanuel Manirakiza appeals against a conviction for indecent assault on the basis that his trial counsel made several errors in conducting the defence. The errors include failing to advise him that the Judge could take into account the evidence of the female complainant, and that he could give evidence in his own defence. The appeal must be determined in accordance with s 232 of the Criminal Procedure Act 2011. The Court is required to allow the appeal if for any reason a miscarriage of justice has occurred. In this context a miscarriage of justice will have occurred if an error or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected. The Court found that Mr Heaslip did not fail to advise Mr Manirakiza that the Judge could take the complainant’s evidence into account in assessing Mr Manirakiza’s guilt. The Court also found that Mr Heaslip did advise Mr Manirakiza that he had the right to give evidence in his own defence, and that Mr Manirakiza made an informed decision not to give evidence. The Court found that Mr Heaslip’s failure to properly brief Mr Osei’s evidence before he gave evidence was an error that directly affected Mr Manirakiza’s decision not to give evidence in his own defence. If the error had not been made Mr Manirakiza would in all probability have elected to give evidence because he had no other means of countering the complainant’s version of events. The error has therefore created a real risk that the outcome of the trial was affected. This constitutes a miscarriage of justice in terms of s 232(2)(c) of the Criminal Procedure Act 2011. The appeal against conviction is allowed. The conviction and sentence are set aside, and I make a direction under s 233(3)(b) of the Act that a new trial is to be held in the District Court.

Orders