Pakai v The Queen - [2017] NZSC 27

NOTE: ORDER MADE IN THE HIGH COURT PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES PURSUANT TO SECTION 202 CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 110/2016
[2017] NZSC 27

BETWEEN	DILLIN PAKAI Applicant
AND	THE QUEEN Respondent

SC 111/2016
BETWEEN	SHANE PIERRE HARRISON Applicant
AND	THE QUEEN Respondent

Court:	William Young, Arnold and Ellen France JJ
Counsel:	K R Smith for Applicant SC 110/2016 C W J Stevenson for Applicant SC 111/2016 A J Ewing for Respondent
Judgment:	8 March 2017

JUDGMENT OF THE COURT

AThe time for filing the applications for leave to appeal is extended.

B The applications for leave to appeal are dismissed.

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REASONS

The applicants were convicted of the murder of Alonsio Matalasi following a jury trial before Mallon J. Mr Pakai was convicted as the principal, having fired the fatal shot from a sawn-off .22 rifle, and Mr Harrison as a party (the Crown relied on both s 66(1) and s 66(2)). The main defence run at trial was self-defence.
The Court of Appeal rejected the applicants’ appeals against conviction.[1] The applicants now seek leave to appeal to this Court on the following common grounds:
(a)The guilty verdicts were unreasonable, principally because self‑defence could not be excluded.
(b)The prosecutor improperly impeached the evidence of a Crown witness, Mr EE, contrary to s 37(4) of the Evidence Act 2006.

In addition:

(c)Mr Pakai argues that the Court of Appeal approached the question of self-defence as though there was an evidential onus on him.
(d)Mr Harrison argues that if Mr Pakai committed murder because, although acting defensively, he used unreasonable force, this could not be in the prosecution of an unlawful purpose in terms of s 66(2), nor would Mr Harrison have known it was a probable consequence. The trial Judge ought to have explained this to the jury.

The grounds raised are not said to raise any issue of general or public importance. Rather, it is claimed that there is a risk of a substantial miscarriage of justice.

[1]Pakai v R [2016] NZCA 343 (Randerson, Harrison and Stevens JJ).

By way of general background, Mr Harrison, who was 44 and a senior member of the Mongrel Mob, and Mr Pakai, who was almost 19 and a gang prospect, drove to the flat of Mr EE, who was associated with a different chapter of the Mongrel Mob. Once there, they asked to see Mr EE. His partner, Ms MN, went to telephone him. Mr Harrison and Mr Pakai then left, saying they would return. After they had left, Ms MN discovered that some of her property was missing.
When Mr EE returned to his flat he was annoyed to learn of the theft of Ms MN’s property and called Mr Harrison, demanding its return. Anticipating a confrontation, Mr EE gathered a group of about seven men who were armed with various items such as a knife, machete and ceremonial samurai sword. Mr Harrison…

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 Pakai v The Queen

Details

AGLC: Pakai v The Queen [2017] NZSC 27
Case: [2017] NZSC 27
Decision Date: 8 March 2017

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to consider applications for leave to appeal from Dillin Pakai and Shane Pierre Harrison, who were convicted of the murder of Alonsio Matalasi. Pakai was convicted as the principal offender, having fired the fatal shot from a sawn-off.22 rifle, while Harrison was convicted as a party. The primary defence at trial was self-defence, which the jury found insufficient. The applicants sought leave to appeal to the Supreme Court on several grounds, including that the guilty verdicts were unreasonable, that the prosecutor improperly impeached a Crown witness, and that the Court of Appeal incorrectly assessed the burden of proof in relation to self-defence.

The court examined whether the applicants' claims could lead to a substantial miscarriage of justice. The court found that the Court of Appeal's conclusion that self-defence was properly excluded by the Crown was sound and that there was no improper impeachment of the witness. The court also determined that the Court of Appeal did not place an evidential burden on Pakai for self-defence and correctly interpreted the law in relation to the prosecution of an unlawful purpose. The court concluded that none of the grounds raised a substantial risk of a miscarriage of justice.

The Supreme Court extended the time for the applicants to file their applications for leave to appeal but dismissed the applications themselves. This decision upheld the original convictions and sentences, rejecting the applicants' claims that they might have been wrongly convicted. The final orders were to extend the time for filing the applications for leave to appeal and to dismiss the applications for leave to appeal.

Orders