R v Hohepa - [2008] NZCA 316

IN THE COURT OF APPEAL OF NEW ZEALAND
CA137/2008
[2008] NZCA 316
THE QUEEN
v
PERCY KELLY HOHEPA
Hearing:18 August 2008

Court:Robertson, Cooper and Winkelmann JJ
Counsel:W C Pyke for Appellant

N P Chisnall for Crown

Judgment:21 August 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Cooper J)
[1] Section 126(1) of the Evidence Act 2006 provides that in a criminal proceeding tried with a jury when the case against the defendant depends wholly or substantially on the correctness of one or more visual identifications of the defendant the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
[2] In amplification of the rule in subs (1), s 126(2) provides as follows:
(2)The warning need not be in any particular words but must –
(a)warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
(b)alert the jury to the possibility that a mistaken witness may be convincing; and
(c)where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.

[3]        In the present case, the trial Judge, Judge P R Connell, warned the jury that there was a special need for caution before finding the accused guilty on the basis of visual identification evidence. He said that the reason for the warning was that experience had shown that it was quite possible for a perfectly honest witness to be mistaken and that a mistaken witness may be convincing. He did not directly warn the jury that a mistaken identification can result in a serious miscarriage of justice.
[4]        The question to be resolved on the appeal is what are the consequences of the direction in the form that it was given.
Background
[5]        This was a case in which identification of the appellant was the central issue. He was charged with one count of wounding with intent to cause grievous bodily harm. The events occurred in Te Awamutu. The appellant was a frequent visitor to the house of one Melanie Galyer, with whom he had a relationship, although their relationship came to an end a week before the attack. On two occasions the complainant, Mr Cormack visited her when the appellant was present. Ms Galyer observed some hostility towards the complainant on the appellant’s part. On one occasion she heard him say “fucking mutt” while looking in the direction of the complainant’s house. She inferred that this was a reference to the appellant having previously been a member of the Mongrel Mob, although he had not been a Mob member for about 16 years.
[6]        The complainant and Ms Galyer became friends. On 1 June 2007 the complainant passed the appellant in the street and they exchanged greetings. Some time in the evening of 1 June 2007 the complainant answered his back door and found himself confronted by a…

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 R v Hohepa

Details

AGLC: R v Hohepa [2008] NZCA 316
Case: [2008] NZCA 316
Decision Date: 21 August 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction in the case of The Queen v Percy Kelly Hohepa. The appellant, Hohepa, was convicted of wounding with intent to cause grievous bodily harm. The central issue in the appeal was whether the trial judge erred in failing to warn the jury, as required by s 126(2)(a) of the Evidence Act 2006, that a mistaken identification could result in a serious miscarriage of justice. The Court held that the omission amounted to an error of law. However, given the detailed summing up on identification evidence and the strength of the evidence against Hohepa, the Court was satisfied that no substantial miscarriage of justice had occurred and dismissed the appeal under s 385(1) of the Crimes Act 1961. The conviction was upheld, and the appeal was dismissed.

Orders