Mitai v Police

[2015] NZHC 1754

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-35 [2015] NZHC 1754

BETWEEN

HATA MITAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 July 2015
Appearances:	D E Foster for Appellant M Mitchell for Respondent
Judgment:	27 July 2015

JUDGMENT OF KEANE J

Solicitors:

Public Defence Service, Napier

Crown Solicitor, Napier

MITAI v POLICE [2015] NZHC 1754 [27 July 2015]

[1]      On  14  July  2014,  following  a  defended  hearing  at  the  District  Court, Hastings, Hata Mitai was convicted of driving dangerously and with an excess breath alcohol on 17 October 2013.  He was later sentenced to supervision and community work. He appeals his conviction.

[2]      Mr Mitai first brought his appeal on 8 August 2014.  It was deemed by this Court to have been abandoned and accordingly dismissed but was reinstated by the Court of Appeal, by consent, on 9 December 2014.

[3]      As on every appeal under s 232 of the Criminal Procedure Act 2011, the ultimate issue is whether the decision under appeal involved or resulted in a miscarriage of justice.  The particular issue in this case is whether such a miscarriage could have arisen from a decision on the part of Mr Mitai’s then counsel not to call two witnesses.

[4]      The Court of Appeal, in remitting the case to this Court, held that to be the issue likely to be dispositive of the appeal.  It needs to be set against the context in which it arose.

Dispositive issue

[5]      The dispositive issue is whether the two witnesses, whose evidence were before the Court of Appeal, the owner of the car Mr Mitai was held to have driven, Marcus Dean, and Mr Mitai’s sister, Lilac Mitai, would have made a difference had their evidence been before the Judge at first instance.

[6]      This was evidence that could have been called at the hearing, because Mr Mitai wished that to happen and his then counsel, his second lawyer, had those instructions.  The issue is whether the evidence is sufficiently significant, potentially, to warrant the grant of a rehearing even if it is not fresh, and whether or not the decision not to call that evidence can be ascribed to counsel error.

[7]      As to that issue, the Court of Appeal said in R v Bain,1  in a statement later endorsed by the Privy Council,2 even although there is a public interest in finality:

… the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been.  The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[8]      The evidence relied on in this case, as I shall now say, seems to me to be within that category.

Evolution of case

[9]      Mr Mitai was charged after a motorist, Heather Read, complained to the police soon after 3.30 pm that she and others, between Hastings and Havelock North, had been passed dangerously, and at an excess speed, by a car whose registration number she gave.   It was occupied by two men, and she distinguished the driver from the passenger.

[10]    Coincidentally, at about 3.45 pm Mr Mitai’s sister in law, Peggy Mitai, telephoned the police and asked them to remove him from her home in Cambpell Street, Havelock North.  He and she had argued outside her house just after he had arrived there with Mr Dean, and he had refused to leave.   Shortly after 3.50 pm, when two constables arrived, Peggy Mitai told them that Mr Mitai and Mr Dean, who then boarded at her home, had arrived shortly before.  Mr Mitai was the driver.

[11]     Mr Mitai denied that he was the driver and that was the evidence he elected to give and so, as Judge Adeane said, he was faced with a straight out conflict of evidence.  The Judge held that, despite his denial, Mr Mitai had been the driver, in this relying on Peggy Mitai, rather than on Mrs Read, whose evidence, he held, was inadequate by itself to identify Mr Mitai as the driver, but was consistent with that of

Peggy Mitai.

1      R v Bain [2004] 1 NZLR 638 (CA) at [22].

2      Bain v R [2007] UKPC 33; see also Fairburn v R [2011] 2 NZLR 63 at [25].

[12]     In his pre-sentence report, after Mr Mitai was convicted and before he was sentenced, he made an admission against his interest.  He advised his assessor that he was aware that he was over the limit at the time and that he had decided to drive, believing that he would not get caught by the police.

[13]     However, Mr Mitai, who by then represented himself, also appealed and when his appeal was dismissed in this Court, because he had filed nothing in support and it was deemed abandoned, he had not identified the further evidence on which he now seeks to rely.  He did so only after advice for the purpose of his appeal to the Court of Appeal.

[14]     On 7 November 2014 Marcus Dean gave an affidavit in which he said that he was the driver and that he had told Mr Mitai’s first lawyer that he was.  He said also that he had taken independent legal advice and then spoken to Mr Mitai’s second lawyer and confirmed that he was the driver but had heard nothing more of it.

[15]     On 7 November 2014 also, Mr Mitai’s sister, Lilac Mitai, who in October

2013, like Mr Dean, was boarding at the Campbell Street address, gave an affidavit contradicting Peggy Mitai.  At 3.45 pm, she said, she was sitting by herself outside the house having a cigarette when her brother and Mr Dean arrived. Mr Dean was the driver.  She confirmed that her brother and Peggy Mitai had argued inside the house.

[16]     Before  the  appeal  was  heard  Mr  Mitai  waived  privilege  and  his  second lawyer, who had appeared for him at the hearing, in emails to Crown counsel, said he had been instructed by Mr Mitai to call Lilac Mitai but had decided not to.   He considered her unreliable and unhelpful.  In retrospect, he said, those were issues for the trial Judge.  He had been pre-emptive and wrong.  He saw no purpose in giving an affidavit because he had accepted that to be so.

[17]     Mr Mitai’s second lawyer did not speak in those emails about Mr Dean. However, in a memorandum in March 2014, which he filed when Mr Mitai wished to withdraw his guilty plea, entered on his first lawyer’s advice, he did speak about Mr  Dean.    He  advised  the  Court  that,  in  contrast  to  Mr  Mitai,  who  had  been

consistent in denying the offence, Mr Dean had made three conflicting statements, both admitting and denying that he had been the driver.  He considered Mr Dean’s reliability to be compromised.

[18]     In that memorandum also Mr Mitai’s second lawyer said that his defence at trial would be that the prosecution could not reliably identify Mr Mitai as the driver and that this was a complete answer.  Mr Mitai, in his affidavit, appears to say that they discussed this but that he relied on his lawyer.

Conclusions

[19]     The evidence which Mr Dean is prepared to give according to his affidavit, if accepted, or not able to be safely discounted, could nullify that on which the Judge was originally entitled to convict Mr Mitai.  The evidence of Lilac Mitai, if accepted or not able to be discounted safely, could nullify that of Peggy Mitai, on which the Judge relied ultimately.

[20]     In the end, it is a matter of credibility that cannot be assessed on the papers. This is not a case in which I have heard either proposed witness give evidence, as sometimes happens, let alone been able to set their evidence against that given by the three witnesses for the prosecution at the first instance hearing.  That can only be accomplished in the round at a single hearing.

[21]     I allow the appeal.  Mr Mitai’s conviction and sentence will be quashed.  Mr Mitai will be remanded to a case review hearing in the Hastings District Court.  The case should then be set down, preferably before a Judge other than the Judge who

found the charges proved.

P.J. Keane J