Paewhenua v Police - [2015] NZHC 1831

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000036 [2015] NZHC 1831

BETWEEN
RIWHIA PAEWHENUA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 July 2015

Appearances:

Martin Hislop for the Appellant
Rebecca Thomson and and Sandra McKone for the Respondent

Judgment:

4 August 2015

JUDGMENT OF MOORE J [Appeal against conviction]

This judgment was delivered by me on 4 August 2015 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

PAEWHENUA v NEW ZEALAND POLICE [2015] NZHC 1831 [4 August 2015]

Introduction

[1] On 13 October 2014, Riwhia Paewhenua, the appellant, was convicted on two charges following a Judge-alone trial. Both charges arose from the same domestic incident that took place in July 2013.

[2] Ms Paewhenua now appeals those convictions on the grounds a miscarriage of justice resulted from the prosecution’s refusal to lead the evidence contained in Ms Paewhenua’s two-hour, exculpatory interview recorded by the Police.

Factual and procedural background

[3] The defended hearing before Judge Bouchier in the Manukau District Court occupied two days. It commenced on 11 April 2014 but was adjourned part-heard because of insufficient time. Despite various attempts to obtain an earlier fixture for the hearing to continue, it did not resume until 13 October 2014. On that date, in an oral judgment, her Honour found Ms Paewhenua guilty of both charges and entered convictions.

[4] Ms Paewhenua and her partner, the victim in this case, were in a relationship. They had one child together and the custody of that child appears to have been an issue in their deteriorating relationship.

[5] On the evening of 2 July 2013, they had an argument which culminated in the victim leaving home with the child and staying overnight at a different address.

[6] The following morning, the victim returned home. An argument ensued during which Ms Paewhenua went into the garage. On following her, the victim saw Ms Paewhenua pouring petrol from a container over his tools. As he approached her, Ms Paewhenua advanced towards him sloshing petrol out of the can. Fearful she would pour petrol over him, the victim retreated back into the house.

[7] Ms Paewhenua pursued him. She splashed petrol over him as he struggled to wrest the petrol can from her. As a result, he was doused with petrol down the front of his clothes.

[8] The couple then struggled over the possession of the petrol container. The victim regained control. As he turned to try to close the door between himself and his attacker, Ms Paewhenua hit him on the back of the head with a bowl causing dizziness and requiring him to lean against the wall for some minutes. As he did so, Ms Paewhenua flicked a cigarette lighter she was holding in her hand.

[9] Finally, the victim managed to escape from the scene to another address from which he called the Police. Shortly afterwards, the Police arrived at the address. They were directed to the couple’s home where Ms Paewhenua…

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.

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Details

Case: [2015] NZHC 1831
Decision Date: 4 August 2015

CaseChat Overview and Summary

In this case, Riwhia Paewhenua, the appellant, appealed against her convictions on two charges following a Judge-alone trial in the Manukau District Court. The charges arose from a domestic incident in July 2013, during which Paewhenua allegedly poured petrol on her partner and hit him with a bowl. The appellant argued that a miscarriage of justice resulted from the prosecution's refusal to lead the evidence contained in her two-hour exculpatory interview recorded by the Police. The High Court was required to decide whether the failure or refusal by the prosecutor to adduce the DVD interview amounted to an error, irregularity or occurrence in relation to the trial which created either a real risk that the outcome of the trial was affected or resulted in an unfair trial.

The Court first considered the nature and contents of the DVD interview, which was consistent with Paewhenua's earlier account given to Constable Wecke, although longer and more detailed. The Court also examined the circumstances which require a prosecutor to adduce a defendant's hearsay statement. The Court of Appeal had previously warned against the introduction of inadmissible statements by defendants, and section 21 of the Evidence Act 2006 makes it clear that if a defendant does not give evidence, they may not offer their own hearsay statement in evidence at a trial. However, the interests of justice and the need to ensure a defendant receives a fair trial are core considerations and duties which every prosecutor is obliged to uphold. The Court found that the DVD interview was inadmissible and that the interests of fairness did not require the statutory purpose of s 21 of the Evidence Act to be overridden in respect of the DVD interview.

The Court concluded that the failure or refusal of the Police to lead the evidence of the DVD interview did not amount to an error, irregularity or occurrence in relation to the trial which created a real risk the outcome of the trial was affected or resulted in an unfair trial. The appeal was dismissed.

The final orders were that the appeal was dismissed.

Orders