R v Lualua - [2007] NZCA 114

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

237/06 [2007] NZCA 114

THE QUEEN

v

PILI TILO LUALUA

Hearing: 20 February 2007
Court: William Young P, Randerson and Harrison JJ Counsel: G Boot for the Appellant
K Raftery for the Crown

Judgment: 3 April 2007 at 3pm

JUDGMENT OF THE COURT

A We answer the questions stated by Judge Burnett as follows:

(1)What was the status (if any) of the jury’s verdict on the alternative count 5? Answer – it was valid.

(2)What was the status (if any) of the jury’s verdict on count 5 following my ruling to set it aside? Answer – it remains valid.

(3)As a consequence to the answers to questions (1) and (2), can the accused be tried again on counts 4 and 5? Answer – no.

R V LUALUA CA 237/06 3 April 2007

BWe direct that the appellant is not to be retried on count four but rather is to be sentenced on count five.

C The sentence appeal is adjourned.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1] Pili Lualua was tried in the District Court before Judge Burnett and a jury on five counts alleging sexual offending associated with two separate incidents. In relation to the first incident (which was alleged to have occurred between 29 April and 19 May 2005) he faced:

(a) Count 1 – sexual violation by unlawful sexual connection (digital penetration); and

(b) Count 2 – assault with intent to sexually violate by rape. The second incident (29 May 2005) gave rise to:
(a) Count 3 – sexual violation by unlawful sexual connection (digital penetration);

(b) Count 4 – sexual violation by rape; and

(c) Count 5 (as an alternative to count 4) – assault with intent to sexually violate by rape.

The jury were unable to agree on the rape count (count four) but returned verdicts of guilty on all other counts. Judge Burnett later purported to recall the conviction on count five; this to clear the way for a retrial on count four.

[2] The appellant filed a general appeal which challenged the sentence imposed by the Judge on other counts and the purported recall of the conviction on count five. As well, the Judge stated a case for the opinion of this Court on the following questions:

(1)What was the status (if any) of the jury’s verdict on the alternative count 5?

(2)What was the status (if any) of the jury’s verdict on count 5 following my ruling to set it aside?

(3)As a consequence to the answers to questions (1) and (2), can the accused be tried again on counts 4 and 5?

[3] The appellant’s general appeal is misconceived in its challenge to the Judge’s purported setting aside of the conviction (as such a challenge is not provided for by s 385 of the Crimes Act 1961). Further, the appeal against sentence…

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 Lualua

Details

AGLC: R v Lualua [2007] NZCA 114
Case: [2007] NZCA 114
Decision Date: 3 April 2007

CaseChat Overview and Summary

The case of R v Lualua involved the appellant, Pili Lualua, who was tried on five counts of sexual offending related to two separate incidents. The jury returned guilty verdicts on counts one, two, three, and five, but could not agree on count four, which involved rape. Judge Burnett invited the jury to return a verdict on the alternative count five, which they did, leading to a conviction on that count as well. However, before sentencing, the Crown applied to Judge Burnett to set aside the conviction on count five, which she did. The appellant filed a general appeal challenging the sentence and the setting aside of the conviction on count five. The Court of Appeal was asked to determine the status of the jury's verdict on count five and whether the appellant could be retried on counts four and five.

The Court of Appeal held that the District Court Judge was entitled to accept the verdict on the alternative count five, as the Crown and defence had consented to the taking of the verdict. However, the Judge did not have jurisdiction to set aside the conviction, as the conviction on count five could not be regarded as a nullity. The Court of Appeal also held that it should not set aside the conviction on count five, as it would be forced to treat the Judge's decision to take the verdict as erroneous. Finally, the Court of Appeal held that it would be an abuse of process for the Crown to retry the appellant on count four, as the conviction on count five would prevent a retrial on count four.

In conclusion, the Court of Appeal held that the appellant could not be retried on counts four and five. The appellant's sentence appeal was adjourned until he had been sentenced on count five.

Orders