Otimi v R - [2012] NZCA 216

IN THE COURT OF APPEAL OF NEW ZEALAND

CA496/2011
[2012] NZCA 216

BETWEEN GERARD TEOI OTIMI
Appellant

AND THE QUEEN
Respondent

Hearing: 15 March 2012

Court: O'Regan P, MacKenzie and Asher JJ

Counsel: M B Meyrick for Appellant
K Raftery for Respondent

Judgment: 29 May 2012 at 3 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed. The stay of sentence of home detention is revoked and the appellant must now serve the balance of that sentence.

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REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellant faced trial before Judge Andrée Wiltens alone in the District Court at Manukau in February/March 2011 on 48 counts of altering a document with intent to cause loss contrary to s 258(1)(a) of the Crimes Act 1961.[1] By a judgment delivered on 12 April 2011, the Judge convicted the appellant on 38 counts. Of the remaining ten counts, three were the subject of a s 347 discharge at the close of the Crown case on 9 March 2011, and the remaining seven counts were discharged under s 347 after the Crown accepted in its closing address that there was insufficient evidence on those counts. The appellant appeals against his conviction.

Crown case

[1] R v Otimi DC Manukau CRI-2009-092-12556, 12 April 2011.

The Crown case was that in mid June 2009 the appellant was involved in several very large public seminars held at maraes in Mangere, Papakura, and Hamilton. The attendees at these meetings were largely Samoans, Tongans and other Pacific Islanders. There were also smaller gathering at the home and office of a Ms Fuimaono in Otara. There were similar meetings at other addresses. The appellant was not present at all of those meetings. The common factor among attendees was that their valid immigration status or that of their relatives had lapsed.
The appellant spoke at some of these gatherings, through a Samoan interpreter. He told the audiences that he was concerned at the plight of Polynesian overstayers and expressed a desire to assist them. His offer of assistance took the form of adopting overstayers by a process the appellant described as “Whangai”; they would be adopted and thereby become part of his hapu, whanau and his whakapapa; this adoption would enable them to claim to be Maori and to receive a stamped endorsement on their passports authorising them to remain in New Zealand until 2018, and a hapu adoption certificate. The Crown case was that the audience was told that the stamp meant that neither the police nor immigration officials would be able to deport them.
Many attendees agreed to participate in the appellant’s scheme and paid the appellant, or an associate, $500 in cash. Their passports were stamped by the appellant, or one of his agents, and the endorsement was signed by Mr Otimi.

Grounds of appeal

In his written submissions, Mr Meyrick identified six grounds of appeal against conviction. He submits that there was a miscarriage of justice caused…

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 Otimi v R

Details

AGLC: Otimi v R [2012] NZCA 216
Case: [2012] NZCA 216
Decision Date: 29 May 2012

CaseChat Overview and Summary

Gerard Teoi Otimi appealed against his conviction and sentence on 38 counts of altering a document with intent to cause loss contrary to s 258(1)(a) of the Crimes Act 1961. The Crown case was that in mid-2009, the appellant was involved in several public seminars held at maraes in Mangere, Papakura, and Hamilton. The attendees at these meetings were largely Samoans, Tongans and other Pacific Islanders. There were also smaller gatherings at the home and office of a Ms Fuimaono in Otara. The common factor among attendees was that their valid immigration status or that of their relatives had lapsed. The appellant spoke at some of these gatherings, through a Samoan interpreter. He told the audiences that he was concerned at the plight of Polynesian overstayers and expressed a desire to assist them. His offer of assistance took the form of adopting overstayers by a process the appellant described as “Whangai”; they would be adopted and thereby become part of his hapu, whanau and his whakapapa; this adoption would enable them to claim to be Maori and to receive a stamped endorsement on their passports authorising them to remain in New Zealand until 2018, and a hapu adoption certificate. The Crown case was that the audience was told that the stamp meant that neither the police nor immigration officials would be able to deport them. Many attendees agreed to participate in the appellant’s scheme and paid the appellant, or an associate, $500 in cash. Their passports were stamped by the appellant, or one of his agents, and the endorsement was signed by Mr Otimi.

The appellant appealed against conviction on the basis that there was a miscarriage of justice caused by one or more of the following: (a) no offence was established by the evidence; (b) the trial Judge made a wrong decision of law in finding that deception was not required to be proved; (c) the trial Judge erred in allowing propensity evidence; (d) the appellant was prejudiced in his defence to the extent there was a significant risk of a miscarriage of justice by his trial counsel arguing that deception was not a required element of the indictment and that the Crown should not take deception into account; (e) the appellant was prejudiced in his defence to the extent that there was a significant risk of a miscarriage of justice by his trial counsel declining to call him as a witness against his instructions; and (f) the appellant was prejudiced in presenting a defence by the actions of the Ministry of Justice which appointed his counsel at such short notice that his counsel had insufficient time to prepare a defence, leading to a breach of s 24(d) of the New Zealand Bill of Rights Act 1990.

The Court of Appeal dismissed the appeal against conviction and sentence. The Court found that the appellant intended the complainants to lose their $500. The Judge’s conclusion that the probative value of the propensity evidence outweighed any prejudicial effect was right. The Court was satisfied that the decision not to give evidence was Mr Otimi’s. In all the circumstances, and having regard to the very considerable steps which the Judge took to accommodate the proper presentation of the defence case by adjournments during the course of the trial, there is no risk of a miscarriage of justice on the basis that Mr Thinn did not have adequate time to prepare the defence.

Orders