Mihaka v The Queen - [2015] NZCA 560

IN THE COURT OF APPEAL OF NEW ZEALAND

CA377/2015
[2015] NZCA 560

BETWEEN	TE RINGA MANGU NATHAN MIHAKA Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2015
Court:	Kós, Fogarty and Mallon JJ
Counsel:	B Crowley and N Bourke for Appellant I R Murray for Respondent
Judgment:	19 November 2015 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is allowed.
BThe application for leave to appeal is dismissed.

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REASONS OF THE COURT

(Given by Fogarty J)

Mr Mihaka was found guilty of assault after a trial in the District Court.[1] He was sentenced to 80 hours community work.[2] He appealed that decision to the High Court, as was his right.[3] His appeal against conviction was dismissed. His sentence appeal was allowed, the sentence was set aside and he was convicted and discharged. He now seeks leave from this Court to appeal the decision upholding the conviction. The application for an extension of time to appeal was not opposed. It is allowed.
[1]New Zealand Police v Mihaka [2015] NZDC 6404.
[2]New Zealand Police v Mihaka [2015] NZDC 6474.
[3]Mihaka v New Zealand Police [2015] NZHC 1318.
Section 237 of the Criminal Procedure Act 2011 provides:
237 Right of appeal against determination of first appeal court
(1)A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.
(2)The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
Mr Mihaka argues, in support of the application, that his case was:
(a)a matter of general or public importance; and also
(b)a miscarriage of justice occurred.

The facts

Mr Mihaka and the complainant lived in separate flats in the same building. One Sunday afternoon, Mr Mihaka misplaced his keys and was not able to get replacements because it was Sunday. The complainant was his neighbour who he had known for several years. His neighbour found him outside, and after walking around the block looking for his keys, offered Mr Mihaka a place to stay for the night. They drank some wine and then Mr Mihaka went to sleep on the couch.
The complainant woke up first and made coffee. He woke Mr Mihaka up. There is a dispute as to whether he woke him up by touching him on the shoulder or by hitting him. In any event, Mr Mihaka got up. There is then a dispute as to what happened. But shortly after what happened, Mr Mihaka left. His neighbour complained to the police and to the landlord, the Housing Corporation. As a result of this incident and the subsequent conviction, Mr Mihaka lost his right to be a tenant for up to a year.
The complainant…

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 The Queen

Details

AGLC: Mihaka v The Queen [2015] NZCA 560
Case: [2015] NZCA 560
Decision Date: 19 November 2015 at 3.00 pm

CaseChat Overview and Summary

In Mihaka v The Queen, the appellant, Te Ringa Mangu Nathan Mihaka, was appealing the decision of the High Court to dismiss his appeal against his conviction and sentence. Mihaka had been found guilty of assault in the District Court and sentenced to 80 hours of community work. He had appealed to the High Court against both his conviction and sentence, with the conviction appeal dismissed and the sentence appeal allowed, resulting in Mihaka being convicted and discharged. Mihaka now sought leave to appeal to the Court of Appeal of New Zealand on the basis that the conviction was a matter of general or public importance or that a miscarriage of justice had occurred.

The Court of Appeal found that the case did not present issues requiring consideration that were overlooked in the earlier case of Mount v R. The Court found that Mihaka had made an informed choice to represent himself and that the trial judge had guided him fairly in presenting his case. The Court also found that the High Court's decision, which came after deliberation, was careful and precise, and that there was no basis for an argument that a miscarriage of justice had occurred. Accordingly, the Court dismissed Mihaka's application for leave to appeal.

This case highlights the importance of ensuring that self-represented litigants are guided fairly in presenting their case and that the courts carefully consider the evidence and reasons for their decisions. It also highlights the limited circumstances in which a second appeal may be considered.

Orders