Mihaka v Police - [2021] NZCA 555

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA377/2015
[2021] NZCA 555

BETWEEN	TE RINGA MANGU NATHAN MIHAKA Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 October 2021
Court:	Kós P and Clifford J
Counsel:	Applicant in person (with Ms K Raue, agent) J E Mildenhall for Respondent
Judgment:	21 October 2021 at 10 am

JUDGMENT OF THE COURT

The application for recall of judgment is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

On Sunday 29 June 2014, Mr Mihaka misplaced the keys to his flat. A neighbour, Mr Dickie, took him in. They drank some wine together from a cask belonging to Mr Dickie. Mr Mihaka slept on the couch; Mr Dickie in his bedroom.
It is common ground there was some sort of confrontation the following morning. Mr Dickie says he had made coffee for them both, touched Mr Mihaka to wake him to ask if he would like some, and shortly after that Mr Mihaka grabbed him by the throat and throttled him until he managed to break free. Mr Mihaka on the other hand says Mr Dickie hit him, or tapped him hard, that he took offence and pushed past him to leave, but that he did not attempt to strangle him.
Mr Mihaka was charged with assault. He represented himself at trial in April 2015. He cross-examined Mr Dickie (and one police witness), gave evidence himself, and called two witnesses of his own. Judge Kelly however found Mr Dickie’s evidence was credible, and that Mr Mihaka’s was not. She said his evidence was “unconvincing and … unworthy of belief”.[1] She convicted him of assault and sentenced him to 80 hours’ community work.[2]
[1]Police v Mihaka [2015] NZDC 6404 at [21].
[2]Police v Mihaka [2015] NZDC 6474.
In June 2015 the High Court dismissed his conviction appeal but allowed his sentence appeal, substituting a conviction and discharge.[3] Mr Mihaka then applied to this Court for leave out of time for a second conviction appeal. An extension of time was given, but leave was declined in November 2015.[4] The Court found there was no matter of general importance worthy of a second appeal, nor was there an argument available that a miscarriage of justice had occurred.
[3]Mihaka v Police [2015] NZHC 1318.
[4]Mihaka v R [2015] NZCA 560.
In October 2016 Mr Mihaka sought recall of the decision declining his application for leave to bring a second appeal. For reasons that are not material to the outcome of the application, it was not progressed at that time. Now it is before us at last, and we have heard Ms Raue speak eloquently on Mr Mihaka’s behalf.
The principal argument made for recall is that Mr Mihaka did not receive proper disclosure by the police. Only now has he seen the full file, and that shows a statement by Mr Dickie to the effect that the assault took place not on the morning…

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 Mihaka v Police

Details

AGLC: Mihaka v Police [2021] NZCA 555
Case: [2021] NZCA 555
Decision Date: 21 October 2021 at 10 am

CaseChat Overview and Summary

In Mihaka v Police, Te Ringa Mangu Nathan Mihaka sought recall of a judgment declining his application for leave to bring a second appeal against a conviction for assault. Mihaka, who represented himself, argued that he had not received proper disclosure by the police, which would have revealed that the assault took place on the night of 29 June 2014 rather than the morning of 30 June, as testified. Mihaka claimed this discrepancy could have challenged the credibility of the complainant, Mr Dickie. The court was required to decide whether the failure in disclosure was significant enough to warrant recalling the previous judgment.

The Court of Appeal considered two main arguments. First, the evidence indicated that the disclosure was sent via email and post to Mihaka. Even if he did not receive it, his capable counsel did not identify this failure during the previous appeal and application for leave for a second appeal. Second, the timing of the assault was not an element of the offence, and both parties agreed on the approximate time of the confrontation. The discrepancy in Mr Dickie’s statement did not add significant value to challenging his credibility, as he admitted to memory impairment due to medication. The court concluded that the alleged non-disclosure did not materially affect the trial outcome. The disadvantages faced by a litigant in person, although sympathetic, could not be revisited as the basis for recall since it was already addressed in the previous judgment.

The court declined the application for recall of judgment, finding no special reasons to justify recalling the previous judgment under the principles set by the Supreme Court in Uhrle v R. The application was dismissed, and the previous judgment stood.

Orders