Misiuk v The Queen

[2011] NZCA 663

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE

IN THE COURT OF APPEAL OF NEW ZEALAND

CA307/2011
[2011] NZCA 663

BETWEEN  PAWEL MARIAN MISIUK
Appellant

AND  THE QUEEN
Respondent

Hearing:         14 September 2011

Court:             Randerson, MacKenzie and Asher JJ

Counsel:         M J Kidd for Appellant
A M Toohey for Respondent

Judgment:      19 December 2011 at 3 p.m.

JUDGMENT OF THE COURT

A        The time for appealing is extended.

B        Leave to adduce further evidence is refused.

C        The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Table of Contents

Para No

Introduction	[1]
Brief facts	[8]
The trial process in outline	[11]
Grounds of appeal	[16]
Fair trial issues
(a) The ruling for trial by judge alone	[20]
(b) Lack of representation	[31]
(c) The appellant’s decision not to cross-examine the complainant	[40]
(d) Specific instances of unfairness
(i)   Page 99 of the notes of evidence	[46]
(ii)   The white flowers evidence	[49]
(iii)  Page 104 of the notes of evidence	[51]
(iv)  Leading questions and irrelevant material	[55]
(e) Complaints about how certain alibi evidence was treated	[57]
(f) Search of the appellant’s address on 7 May 2009	[67]
(g) Complaints about identification evidence	[71]
(h) Complaints of perceived bias and unfairness	[75]
The verdict on the count of threatening to kill was unreasonable and not supported by the evidence	[79]
Post-hearing memoranda	[87]
Conclusion on conviction appeal	[90]
Sentence appeal	[91]
Disposition	[93]

Introduction

1. The appellant appeals against his conviction and sentence in the District Court on the following charges:

   (a)7 counts of breaching a protection order; 

   (b)1 count of theft of a handbag;

   (c)1 count of threatening to kill; and

   (d)1 count of burglary.

2. He was acquitted on two other counts of breaching a protection order.

3. The trial took place before Judge Field sitting without a jury, an order having been made to permit that mode of trial under s 361D of the Crimes Act 1961 (the Act).

4. The trial occupied six weeks between 14 February 2011 and 31 March 2011.  Judge Field’s lengthy and well-reasoned verdict was delivered on 6 April 2011.[1]

   [1]      R v Misiuk DC Auckland CRI-2010-004-4873, 6 April 2011.

5. On 18 April 2011 the appellant was sentenced on the counts on which he had been convicted after the trial, and on a further charge of escaping from the lawful custody of the Department of Corrections on 15 October 2010, to which he pleaded guilty on the sentencing date of 18 April 2011.  He was sentenced to four years imprisonment on the burglary charge, with concurrent lesser sentences on the other charges found proved at trial.  On the escaping custody charge he was sentenced to one month’s imprisonment, cumulative on the four year sentence. 

6. That appeal has been withdrawn by a notice signed by the appellant dated 9 September 2011…