Peneha v Police - [2012] NZHC 2554

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-70 [2012] NZHC 2554

BETWEEN SHANNON PENEHA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 October 2012

Counsel: C J Tennet for Appellant
E M Light for Respondent

Judgment: 2 October 2012

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1] Shannon Peneha, an 18 year old youth, was convicted in the Lower Hutt District Court on one charge of assault on Sian Graham, a 16 year old youth, and on a second charge of stealing Mr Graham’s cap. He defended the charges. Both Mr Graham and Mr Peneha gave evidence. The Judge believed Mr Graham. He did not believe Mr Peneha. On each charge Mr Peneha was sentenced to 100 hours community work, reparation of $50 and witness expenses of $50. Mr Peneha now appeals his conviction.

Background

[2] The police case was that on the afternoon of Thursday, 3 November 2011

Mr Peneha was at the Taita railway station in the Hutt Valley. There is a subway tunnel beneath the station platform and tracks. Mr Peneha stood in the middle of the subway and blocked Mr Graham’s path. He swung his right fist, punching Mr Graham on the left side of his face near his mouth. This punch knocked Mr
Graham’s cap off his head. Mr Graham received a cut on the inside of his mouth.

PENEHA v NEW ZEALAND POLICE HC WN CRI 2012-485-70 [2 October 2012]

Mr Peneha then picked up the cap from the ground before Mr Graham could and said: “fuck you, c’s up” (whatever that means) and ran away. That was the basis of the stealing conviction. The cap was worth $49.99.

[3] After these events Mr Graham met his girlfriend at the local library and walked to her house. There her mother called the police. At around 2.00 pm that day a constable went down to the railway station to check if any person matching the description of Mr Peneha had been seen. Mr Peneha was spoken to by the police about three weeks later. He was arrested and taken to the police station.

[4] I note that Mr Peneha had not previously appeared before the Court.

District Court decision

[5] At the hearing Judge Davidson heard evidence from Mr Graham, the constable, Mr Peneha, his girlfriend and Mr Peneha’s mother. The Judge first noted that the burden of proof was beyond reasonable doubt. There were two issues for him:

(a) First, whether Mr Graham had fabricated the complaints, and

(b)Secondly, (if the allegations were true) whether Mr Graham had properly identified Mr Peneha as the assailant.

[6] On the first issue the Judge considered that Mr Graham’s allegation was made promptly and as a result it was fresh and detailed and there was nothing to suggest it had been fabricated. There was no evidence that he had an “axe to grind” with Mr Peneha. Nor was Mr Graham a serial false complainant. The Judge considered Mr Graham’s evidence to be “straight forward, detailed,…

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 Peneha v Police

Details

AGLC: Peneha v Police [2012] NZHC 2554
Case: [2012] NZHC 2554
Decision Date: 2 October 2012

CaseChat Overview and Summary

Shannon Peneha appeals against his conviction and sentence for assault and theft. The District Court convicted Peneha after accepting the evidence of Sian Graham, who alleged that Peneha assaulted him and stole his cap. Peneha, who denied the charges, was sentenced to 100 hours of community work and ordered to pay reparation and witness expenses on each charge. Peneha raises three grounds of appeal before Justice Kós in the High Court. First, he argues that the District Court Judge drew unjustified inferences and made credibility findings without cogent reasons. Second, he submits that the Judge misapplied the burden of proof in relation to the evidence of both Peneha and Graham. Third, he claims that the Judge failed to warn himself under s 67A of the Summary Proceedings Act 1957 as to the identification evidence and in particular the prospect that it might be mistaken.

Justice Kós rejects each of Peneha's grounds of appeal. As to the first ground, Kós J finds that the Judge did not err in drawing any unjustified inferences and was entitled to accept Graham's evidence as credible and reliable. While the Judge did not fully articulate his reasons for rejecting Peneha's evidence, Kós J holds that the Judge had done so. Regarding the second ground, Kós J holds that the Judge correctly applied the criminal burden of proof. Finally, as to the third ground, Kós J finds that the omission by the Judge to explicitly warn himself or refer to s 67A will not matter if it is clear that the Judge proceeded with caution and took the possibility of mistake into consideration. The Judge had considered the identification evidence with due care and must have contemplated the possibility of mistake. Kós J therefore dismisses the appeal.

Orders