Poihipi v The the King - [2022] NZCA 421

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA205/2020
[2022] NZCA 421

BETWEEN	JAYSON WIREMU POIHIPI Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2022
Court:	Miller, Duffy and Ellis JJ
Counsel:	C G Tuck for Appellant S K Barr for Respondent
Judgment:	8 September 2022 at 11.45 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

Mr Poihipi was convicted of the murder of Lynace Parakuka after trial by jury on 27 September 2019.[1] He appeals against conviction on the basis of trial counsel error.
[1]Crimes Act 1961, s 167(b).
Several affidavits and reports have been put into evidence before us. The appeal is not advanced on a fresh evidence basis, rather, the evidence is introduced to demonstrate what would have been available had trial counsel pursued certain steps. We make reference to this evidence to the extent we consider relevant.

Background

Mr Poihipi is now 23 years old and was 19 at the time of the offending, which occurred in 2018. He has some level of cognitive difficulty. Although he has not been formally diagnosed it is suspected he has foetal alcohol syndrome.[2] He has poor comprehension and struggles to read and write. Following his conviction Mr Poihipi suffered from suicidal ideation and was placed in the at-risk unit at Waikeria Prison.
[2]The report of Dr Jansen before us on appeal notes that it is “more likely than not that he has a degree of Foetal Alcohol Syndrome” but “this is not yet proven”. There is no reference in the pre‑sentence PAC report to foetal alcohol syndrome.
The police summary of facts alleged the following. On 7 September 2018 Mr Poihipi and Ms Parakuka, his girlfriend, had been drinking alcohol at an associate’s house. The pair made their way back to Mr Poihipi’s uncle’s house and went separate ways for a period of time. They happened upon each other on the street at about 11 pm and became involved in a heated argument. Mr Poihipi grabbed Ms Parakuka by her hand and dragged her onto the grounds of a nearby school, where they continued to argue. Mr Poihipi then lashed out at Ms Parakuka, punching her several times and causing her to fall to the ground. He described the punches as being as hard as he could punch. Ms Parakuka attempted to get up, but Mr Poihipi kicked her in the head. She fell to the ground, unconscious. Mr Poihipi walked a short distance and sat down for about 20 minutes. He could hear Ms Parakuka breathing in a laboured manner before she made a gurgling noise and then stopped making noise. This prompted him to check on her. Upon seeing her injuries and that she was not breathing, he ran to get help. He returned to Ms Parakuka with an associate. Emergency services were not able to resuscitate her.
The sentencing notes…

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: [2022] NZCA 421
Decision Date: 8 September 2022 at 11.45 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Jayson Wiremu Poihipi against his conviction of the murder of Lynace Parakuka. The appeal was based on the claim of trial counsel error. The appellant's trial counsel was alleged to have failed to properly investigate, prepare, and advance key elements of the defence case, failed to properly advise the appellant regarding giving evidence, and failed to tailor his approach to the appellant's background and mental state. The court found that there was no trial counsel error in relation to a failure to investigate, prepare, and advance key elements of the defence case. The court found that the alleged failure to properly advise the appellant regarding giving evidence did not constitute an error. The court found that there was no error in relation to how the trial counsel approached the representation of the appellant. The application to adduce further evidence on appeal was granted, but the appeal was dismissed.

Orders