Mihaka v Police - [2015] NZHC 1318

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-21 [2015] NZHC 1318

BETWEEN
TE RINGA MANGU NATHAN

MIHAKA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 June 2015

Counsel:

N Bourke for Appellant
A R T Garrick for Respondent

Judgment:

11 June 2015

JUDGMENT OF SIMON FRANCE J

[1] Mr Mihaka appeals a decision of the District Court finding him guilty of assault. He also appeals a sentence of 80 hours’ community work.1

Facts

[2] Mr Mihaka and the complainant lived in separate flats in the same building. One Sunday afternoon Mr Mihaka misplaced his keys. The complainant invited him in, and offered him a place to stay for the night. Wine was consumed and Mr Mihaka went to sleep on the couch. This much is agreed. Thereafter the stories
depart.

1 NZ Police v Mihaka [2015] NZDC 6404.

MIHAKA v NZ POLICE [2015] NZHC 1318 [11 June 2015]

[3] The complainant says he woke first, and as is his habit made coffee. He touched Mr Mihaka on the shoulder to say coffee was being made, put two cups on the table and sat in his chair. He says Mr Mihaka got up and came over to him. Mr Mihaka then put his hands around the complainant’s throat and tried to throttle him. The complainant feared for his life, but managed to break the hold. Mr Mihaka then left. There was photographic evidence supportive of the proposition that the complainant, the next day, had some bruising on his throat. The police officer who took the photo said it was yellowish bruising.

[4] Mr Mihaka’s version is different, albeit somewhat inconsistent. He declined to make a pre-trial statement, represented himself at trial and gave evidence. His position emerges from cross-examination of the complainant, through his evidence and through exchanges with the Judge.

[5] Mr Mihaka denied strangling the victim, and denied putting his hands around the man’s throat. He variously says that the complainant punched him, or put his hand on Mr Mihaka’s chest, or tapped his shoulder. He later generalised this to a claim that the complainant assaulted him first, and then under questioning from the bench said it was a punch to the shoulder with a closed hand.

[6] Mr Mihaka later said it was a tap but the clear gist of his evidence was that it occurred when waking and he thought it an assault. Mr Mihaka says he pushed the complainant away and left, annoyed at his attitude. He said, in cross-examination, he knew the difference between a friendly pat and something more, and this was the latter.

Decision under appeal

[7] As is evident from the preceding outline, the context for the decision was two quite diverse versions. There was common ground that the complainant touched (in some way) Mr Mihaka on the shoulder while he was lying on the couch. Thereafter:

(a) the complainant says he moved and sat down, Mr Mihaka approached him and immediately began choking him;

(b)Mr Mihaka says he…

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: [2015] NZHC 1318
Decision Date: 11 June 2015

CaseChat Overview and Summary

Te Ringa Mangu Nathan Mihaka appeals against his conviction and sentence for assault, as determined by the District Court. Mihaka contends that the District Court failed to properly consider the elements of self-defence, resulting in an erroneous rejection of the defence. The central dispute lies in the conflicting accounts of the incident between Mihaka and the complainant, who resided in separate flats within the same building. Mihaka misplaced his keys, prompting the complainant to invite him over for the night. After consuming wine, Mihaka fell asleep on the complainant’s couch. The complainant alleges that upon waking and preparing coffee, he touched Mihaka to inform him, which Mihaka interpreted as an assault, leading to the complainant being choked. Mihaka denies these allegations, claiming he merely pushed the complainant away and left. The District Court found Mihaka’s testimony unreliable due to inconsistencies and the lack of objective support for his account. Consequently, the court upheld the complainant’s version of events and convicted Mihaka.

The High Court assessed Mihaka’s appeal, focusing on whether the District Court adequately considered self-defence. The court noted that Mihaka’s credibility was undermined by inconsistencies in his accounts and the absence of objective evidence supporting his version of events. Although there were reservations about the weight given to Mihaka’s pre-trial silence and the police officer’s testimony, these did not alter the court’s conclusion that Mihaka’s credibility was sufficiently questionable. The court found that Mihaka’s actions, if true, did not align with self-defence, as he approached the seated complainant and initiated the alleged choking. Consequently, the appeal against conviction was dismissed. However, the sentence of 80 hours of community work was deemed excessive given Mihaka’s age, disability, and the significant personal consequences he has already faced. The sentence was quashed, and Mihaka was discharged without further penalty.

The court dismissed the appeal against conviction but allowed the appeal against the sentence, quashing the imposed community work. Mihaka remains convicted of assault but was discharged without further penalty.

Orders