R v Neho - [2009] NZCA 299

IN THE COURT OF APPEAL OF NEW ZEALAND
CA122/2009
[2009] NZCA 299
THE QUEEN
v
AROHA MERE NEHO
Hearing:24 June 2009

Court:Baragwanath, Randerson and Miller JJ
Counsel:B Hunt for Appellant

M F Laracy for Crown

Judgment:14 July 2009 at 11.30am

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.
B        Any suppression order remaining in force is revoked.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]       The appellant was convicted in the District Court on two counts of dishonestly obtaining a document and eight counts of dishonestly using a document. She pleaded guilty at the end of the defence case after Judge Behrens QC ruled there was an insufficient evidential foundation to warrant leaving the defence of compulsion to the jury. The appellant was later sentenced to 150 hours community work.
[2]       She now appeals against her convictions on the basis that there was a sufficient evidential foundation either for the statutory defence of compulsion under s 24 of the Crimes Act 1961 or the common law defence of necessity and that both issues should have been left to the jury.
Background facts
[3]       The appellant admitted the dishonest use of two separate credit cards to obtain goods on finance. Her role was to enter retail stores in the Wellington area, to acquire goods using the credit cards and to then collect the goods. The goods were to a value of $16,000, and included electronic items, whiteware and furniture. They were obtained from eight separate stores in various parts of Wellington. The first offending occurred on 29 July 2006 and the remainder over the period 8-18 September 2006. On the last occasion, a shop assistant became suspicious and the police were called.
[4]       The appellant was arrested and interviewed. During the interview she said she had borrowed money over a period of time from women who were partners or wives of members of the Porirua chapter of the Mongrel Mob. She did so in order to fund a gambling habit. She said she had associated with the Mongrel Mob, attending at the mob pad at some parties and other gatherings. The money she owed according to her statement to the police was in the vicinity of $18,000 to $20,000. When the Mongrel Mob called in her debt the appellant was unable to pay. Her evidence was that she was required by members of the Mongrel Mob to carry out the offending in order to repay her debt. She was told that, on each occasion when she obtained goods, her debt would be reduced by $100. The appellant also told the police that members of the Mongrel Mob had threatened serious harm to herself and her children unless she complied with their demands. More specifically, she said she was told she would “get a hiding”; that they would “kick the living daylights out of [her]”; and that they would hurt or sexually assault her two daughters (then aged 7 and 9 years). She was afraid to…

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 Neho

Details

AGLC: R v Neho [2009] NZCA 299
Case: [2009] NZCA 299
Decision Date: 14 July 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction by Aroha Mere Neho, who was convicted in the District Court on multiple counts of dishonestly obtaining and using documents. Neho's appeal focused on the adequacy of the evidential foundation for the statutory defence of compulsion under section 24 of the Crimes Act 1961 and the common law defence of necessity. Neho argued that the trial judge should have left these defences to the jury. Neho admitted to engaging in fraudulent activities by using credit cards to obtain goods worth $16,000 from various stores in Wellington. She claimed she was coerced into committing these offences by members of the Porirua chapter of the Mongrel Mob to repay a gambling debt of approximately $18,000 to $20,000. Neho stated that gang members threatened her and her children with serious harm if she did not comply with their demands.

The Court of Appeal first considered the statutory defence of compulsion, which requires a threat of immediate death or grievous bodily harm from a person present during the offence. The Court found that there was insufficient evidence to establish this defence, as there was no evidence that the person making the threats was present when the offence was committed. Additionally, the threats were not immediate, and Neho had other options available to her, such as reporting the situation to the police. The Court concluded that the trial judge correctly decided not to leave the defence of compulsion to the jury.

The Court also addressed the common law defence of necessity, which applies when circumstances other than threats of death or serious injury compel the accused to commit a crime. The Court found that this defence was not applicable in the circumstances of this case, as it requires a belief of imminent peril of death or serious injury, which was not established by the evidence. The Court emphasised that section 24 of the Crimes Act covers the defence of compulsion or duress arising from threats of death or serious violence, and thus excludes the common law defence in such situations.

Based on the above reasoning, the Court dismissed the appeal against conviction, revoked any suppression orders in place, and upheld the convictions.

Orders