Mohi v The Queen - [2019] NZCA 441

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA148/2019
[2019] NZCA 441

BETWEEN	CHARLES TOKO TEWAAKA TAARE MOHI Appellant
AND	THE QUEEN Respondent

Hearing:	11 September 2019
Court:	Courtney, Duffy and Wylie JJ
Counsel:	P N Ross and LRH Grant for Appellant JEL Carruthers for Respondent
Judgment:	19 September 2019 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeals against both conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

On 31 May 2018, the appellant, Mr Mohi, was found guilty of one charge of burglary following a jury trial in the District Court at Gisborne, presided over by Judge Gibson. He was sentenced to two years and six months’ imprisonment on 27 July 2018.[1]
[1]R v Mohi [2018] NZDC 16399 [Sentencing notes] at [19].
Mr Mohi appeals both his conviction and the sentence imposed.[2] He argues that the police failed to disclose in a timely fashion details of all fingerprint lifts that had been obtained from items found at or near the scene of the burglary, that this failure prejudiced the conduct of his defence and that there has been a miscarriage of justice as a result. He also argues that the sentence was manifestly excessive.

Leave to appeal

[2]Criminal Procedure Act 2011, s 232 and 250.

The appeal was brought out of time.[3] An affidavit has been filed explaining the circumstances. Mr Mohi was in custody and he had difficulty in obtaining a lawyer who was able to act for him. The Crown does not oppose the grant of leave and does not suggest that it is prejudiced by the delay. Accordingly, we grant leave to appeal out of time.

Factual background

[3]Sections 231(2) and 248(2).

The police alleged that Mr Mohi broke into a holiday house in Tokomaru Bay, a small settlement on the East Cape about 90 kilometres north of Gisborne. The house was not occupied at the time. It is owned by a retired couple.
One of the owners visited the house on 21 October 2017. A window adjoining the front door had been broken. The house had been entered. The television was still on; various household items had been moved; linen had been strewn around; drawers had been opened; the shower had been used; food left in the house had been cooked and eaten. The house had also been ransacked. There was significant internal damage, particularly to wall linings. The power had been switched off to the refrigerator and a freezer and the food stored in them had perished. Various items of property had been stolen.
Some of the stolen items were subsequently found in a laundry basket concealed on a neighbouring property.
At the trial, there was no dispute that a burglary had occurred. The issue was whether or not Mr Mohi was involved.

Conviction appeal

The failure to disclose

The Crown’s case against Mr Mohi turned on fingerprint…

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 Mohi v The Queen

Details

AGLC: Mohi v The Queen [2019] NZCA 441
Case: [2019] NZCA 441
Decision Date: 19 September 2019 at 11 am

CaseChat Overview and Summary

The appeal in Mohi v The Queen concerns the conviction and sentence imposed on the appellant, Mr Mohi, following his conviction for burglary. The appeal against both conviction and sentence was heard by the Court of Appeal of New Zealand, presided over by Courtney, Duffy, and Wylie JJ. The appellant argued that the police failed to disclose all fingerprint evidence in a timely fashion, which prejudiced his defence and resulted in a miscarriage of justice. He also contended that the sentence was manifestly excessive. The Crown did not oppose the grant of leave to appeal out of time, and the appeal was brought due to difficulties Mr Mohi faced in obtaining legal representation while in custody.

The court examined whether the late disclosure of additional fingerprint evidence prejudiced Mr Mohi's defence, potentially leading to a miscarriage of justice. The court found that the additional fingerprint evidence did not implicate Mr Mohi in the offence, and that he could have explored the suggested alternative defences regardless of the late disclosure. Therefore, the court concluded that the late disclosure did not result in any significant prejudice, and dismissed the appeal against conviction. In relation to the sentence appeal, the court found that the sentence imposed by the trial judge was within the appropriate range, taking into account the aggravating factors of the offence and Mr Mohi's criminal history. The appeal against sentence was also dismissed.

The final orders of the Court of Appeal of New Zealand were to grant the application for an extension of time to appeal and to dismiss the appeals against both conviction and sentence.

Orders