Manukau v R - [2013] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND

CA711/2012 [2013] NZCA 217

BETWEEN OLIVER DWAYNE MANUKAU Appellant

AND

THE QUEEN Respondent

Hearing: 22 May 2013

Court:

French, Goddard and Lang JJ

Counsel:

N M Dutch for Appellant
M E Ball for Respondent

Judgment:

11 June 2013 at 11.00

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of two years three months’ imprisonment is quashed and is replaced with a sentence of one year ten months’ imprisonment. That sentence is to be served cumulatively upon the sentence of three years two months’ imprisonment the appellant is currently serving on the charge of sexual violation.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Introduction

Mr Manukau was convicted following a trial by jury on a charge of wilfully attempting to pervert the course of justice. On 14 September 2012, Judge Rollo sentenced him to two years three months’ imprisonment.[1] That sentence was to be served cumulatively upon a sentence of three years two months’ imprisonment Mr Manukau was already serving on a charge of sexual violation.
[1]R v Manukau DC Tauranga CRI-2010-070-7959, 14 September 2012.
Mr Manukau appeals to this Court against both conviction and sentence. He contends that the trial process was flawed, and that it resulted in a miscarriage of justice. He also says the Judge imposed a sentence that was manifestly excessive in the circumstances.

Background

The events and procedural background that preceded Mr Manukau’s trial and conviction are somewhat unusual. They have their genesis in an incident that occurred on the evening of 19 September 2008. On that date, Mr Manukau and his partner stayed overnight at an address occupied by one of Mr Manukau’s relatives. Another couple also stayed at the address that night. Mr Manukau, his partner and the complainant slept on the floor on adjoining mattresses, whilst the complainant’s partner slept on a nearby couch. In the early hours of the morning, the female member of the other couple (“the complainant”) woke up to find Mr Manukau inserting his finger into her vagina.
Over the next two days, the complainant and Mr Manukau’s partner engaged in a text message exchange in which the complainant accused Mr Manukau of having sexually assaulted her. Mr Manukau’s partner responded to the effect that Mr Manukau denied the allegations. The complainant contacted the police about the incident a day or so later, however, and Mr Manukau was charged with sexual violation by unlawful sexual connection. He pleaded not guilty to the charge, and was eventually committed for trial on it.
Approximately a month before Mr Manukau was due to stand trial, his partner advised the police she had received a significant text message from the complainant during the exchange of messages on 20 and 21 September 2008. Mr Manukau’s partner told the police she had stored the message on her phone, and that it read as follows:
wel becoz u kicked us out im gonna lie an…

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 Manukau v R

Details

AGLC: Manukau v R [2013] NZCA 217
Case: [2013] NZCA 217
Decision Date: 11 June 2013 at 11.00

CaseChat Overview and Summary

The appellant, Oliver Dwayne Manukau, appealed against his conviction and sentence for wilfully attempting to pervert the course of justice. He argued that the trial process was flawed, resulting in a miscarriage of justice, and that his sentence was manifestly excessive. The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The original sentence of two years three months' imprisonment was quashed and replaced with a sentence of one year ten months' imprisonment, to be served cumulatively with the sentence of three years two months' imprisonment he was currently serving for the charge of sexual violation.

The Court considered whether the prosecutor failed to cross-examine the appellant on material matters, misled the jury in her closing address, and whether the sentence was manifestly excessive. The Court found that the prosecutor's cross-examination was sufficient, and her closing address did not mislead the jury. However, the Court considered the sentence to be excessive, given the totality principles and the appellant's overall culpability. The Court replaced the original sentence with a sentence of one year ten months' imprisonment, resulting in an effective end sentence of five years imprisonment on both charges.

Orders