Peato v The Queen - [2011] NZCA 98

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/2010
[2011] NZCA 98

BETWEEN IONA PEATO
Appellant

AND THE QUEEN
Respondent

Hearing: 23 February 2011

Court: O'Regan P, Winkelmann and Chisholm JJ

Counsel: A M M Schulze for Appellant
J M Jelas for Respondent

Judgment: 25 March 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

The appellant was convicted of wounding with intent to cause grievous bodily harm after a jury trial in the District Court. He pleaded guilty to one count of assault with intent to injure before commencement of the trial. The trial Judge, Judge Cooper, sentenced the appellant to five years imprisonment. He appeals against conviction on the basis that it was unreasonable and cannot be supported having regard to the evidence. There is no appeal against sentence.

Background

The convictions relate to an incident that occurred at a Rotorua bar in 2006. The complainant, a bouncer from a nearby bar, was called over to help out with a fight that seemed to be breaking out on the dance floor between the appellant’s partner and another woman. The appellant was standing at the side of the dance floor holding his partner back. The complainant asked him if everything was alright. Another person then assaulted the complainant and the appellant joined in, punching the complainant in the head. The complainant moved outside and a number of other men set upon him. The complainant fell to the ground. The Crown alleged that the appellant then stabbed him with a broken bottle.
The appellant admitted to police that he had punched the complainant no more than six times. However, he said he understood the complainant was challenging him to a fight outside, saying, “One out, me and you, one out”. The punching formed the basis of his guilty plea to the assault with intent to injure charge. But he denied using the bottle.

Second appeal

This is the second appeal by Mr Peato relating to this offending. His first appeal succeeded and a retrial was ordered.[1] The ground on which that appeal succeeded was that there were errors in the summing up, including the omission of a proper identification warning for the purposes of s 126 of the Evidence Act 2006. For the purposes of this appeal, it is accepted that the s 126 warning was correctly given at the retrial and no issue is taken with any aspect of the Judge’s summing up.

Unreasonable verdict

[1] Peato v R [2009] NZCA 333, [2010] 1 NZLR 788.

The law on unreasonable verdicts was expressed in R v Munro:[2]
A verdict will be deemed unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt.
[2]R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [87]; approved in R v Owen [2007] NZSC 102,

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 Peato v The Queen

Details

AGLC: Peato v The Queen [2011] NZCA 98
Case: [2011] NZCA 98
Decision Date: 25 March 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Iona Peato against his conviction for wounding with intent to cause grievous bodily harm. The appeal was dismissed. The conviction stemmed from an incident at a Rotorua bar in 2006 where the appellant joined in an assault on a bouncer who had intervened in a fight on the dance floor. The primary legal issue was whether the conviction was unreasonable, given the conflicting evidence regarding the location of the assault, the identity of the assailant, and the reliability of witness identifications. The court found that the jury's acceptance of the evidence of two key Crown witnesses, who identified the appellant as the bottler, was not unreasonable. Despite inconsistencies in the evidence, the court concluded that the jury was entitled to weigh the evidence and reach their verdict, particularly given the clear directions provided by the trial judge regarding identification evidence.

The court rejected the arguments that the location of the assault, the identity of the assailant, and the reliability of the identification evidence rendered the conviction unreasonable. Regarding the location, while there was conflicting evidence, the jury accepted the accounts of the Crown witnesses who were positioned to observe the events outside the bar. As for the identity, the court found it was open to the jury to reject the defence's suggestion that another man, who bore a resemblance to the appellant, was the assailant. The court also found that the jury was entitled to accept the identifications of the appellant by the Crown witnesses, despite their initial hesitations, after considering the clear directions on identification evidence provided by the trial judge. Therefore, the appeal against the conviction was dismissed.

Orders