Mark Heteraka v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 85/2013
[2013] NZSC 119

BETWEEN	MARK HETERAKA Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Glazebrook and Arnold JJ
Counsel:	L L Heah for Applicant S B Edwards for Respondent
Judgment:	13 November 2013

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicant, Mr Heteraka, was tried in the District Court on one count of aggravated robbery and two counts of robbery, arising out of three separate incidents. He was convicted on one count of robbery but was acquitted on the remaining counts. There were two principal pieces of evidence against him on the count on which he was convicted – an identification by the victim of the robbery and his sister’s possession soon after the robbery of the victim’s cell phone (which was stolen in the robbery).
Mr Heteraka seeks leave to appeal to this Court principally on the basis that the Court of Appeal misinterpreted s 45(2) of the Evidence Act 2006.[1] Mr Heteraka argues that the Court of Appeal erred in confining the words “the circumstances in which the identification was made” in s 45(2) to the circumstances of the identification process followed by police rather than including the circumstances in which the original identification occurred. He relies on the judgment of this Court in Harney v Police.[2] Mr Heteraka also argues that the formal procedures set out in s 45(3) could not be met by the process followed in this case.
[1]Heteraka v R [2013] NZCA 339.
[2]Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [22].
The Crown accepts that the Court of Appeal erred in respect of the meaning of “circumstances” in s 45(2), but says that nothing turns on that because, if the circumstances in which the original identification occurred are taken into account, the grounds for concluding that the evidence met the threshold test for admissibility would be even stronger.
We are not satisfied that it is in the interests of justice for the Supreme Court to hear and determine this appeal. Although there are unsatisfactory aspects of the identification process followed by police in this case, no matter of general or public importance is raised, given that Harney has determined the interpretation to be given to “circumstances” in s 45(2). Nor do we consider that a substantial miscarriage of justice may have occurred given that (putting the identification to one side) there is compelling evidence of Mr Heteraka’s involvement in the robbery, in particular, the evidence that his sister had the victim’s stolen cell phone.

Solicitors:
Crown Law Office, Wellington

CaseChat Overview and Summary

In the case of Mark Heteraka v The Queen, the applicant, Mark Heteraka, sought leave to appeal against his conviction for one count of robbery. Heteraka was acquitted on the remaining charges of aggravated robbery and robbery. The Court of Appeal had previously dismissed his appeal, and he now sought leave to appeal to the Supreme Court. The primary issue was whether the Court of Appeal had correctly interpreted section 45(2) of the Evidence Act 2006, which pertains to the admissibility of identification evidence. Heteraka argued that the court had misinterpreted the section by limiting the "circumstances in which the identification was made" to the police identification process rather than including the circumstances of the original identification. Additionally, he argued that the formal procedures outlined in section 45(3) could not be met by the process followed in this case.

The Supreme Court considered the arguments presented by Heteraka and the Crown. The Crown admitted that the Court of Appeal had erred in its interpretation of "circumstances" in section 45(2). However, they contended that even when considering the circumstances of the original identification, the evidence met the threshold for admissibility. The Court concluded that it was not in the interests of justice to hear and determine this appeal. The court found that although there were unsatisfactory aspects of the identification process followed by police, no matter of general or public importance was raised. Furthermore, given the compelling evidence of Heteraka's involvement in the robbery, such as the possession of the victim's stolen cell phone by his sister, the court did not believe a substantial miscarriage of justice had occurred.

The Supreme Court dismissed Heteraka's application for leave to appeal, and no further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established