ORDER PROHIBITING PUBLICATION OF THE REASONS FOR THIS JUDGMENT IN THE NEWS MEDIA OR ON INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE NEW TRIAL. PUBLICATION IN A LAW REPORT OR A LAW DIGEST IS, HOWEVER, PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA354/2008 [2009] NZCA 333

THE QUEEN

v

IONA PEATO

Hearing:         15 July 2009
Court:            Chambers, Randerson and Keane JJ Counsel: S J Lance for Appellant
J M Jelas for Crown Judgment: 29 July 2009 at 10.30 am Reasons:      15 September 2009
JUDGMENT OF THE COURT

A The appeal against conviction is allowed. B The convictions are quashed.
C A retrial is ordered on both counts in the indictment.

DAn order is made that the reasons for this judgment are not to be published in news media or in any other publicly accessible database

R V PEATO CA CA354/2008 [29 July 2009]

until final disposition of the new trial. Publication in a law report or a law digest is, however, permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] On 29 July 2009 we allowed Mr Peato’s appeal against conviction. We also quashed his convictions and ordered a retrial. These are the reasons for our decision.

[2] The appellant was convicted after a trial before Judge Weir and a jury in the District Court on one count of injuring with intent to injure under s 189(2) Crimes Act 1961 and one count of wounding with intent to cause grievous bodily harm under s 188(1) Crimes Act. He was sentenced on 22 May 2008 to six and a half years imprisonment on the lead charge of wounding with a concurrent sentence of two and a half years’ imprisonment on the injuring charge.

[3] The charges against the appellant arose from a fight on 24 September 2006 both inside and outside a Rotorua bar during which a security officer was allegedly punched, kicked and attacked with a broken beer bottle. It was alleged that the attack outside the bar involved a number of participants of whom the appellant was one. The Crown alleged the appellant broke a bottle and then attacked the victim around the head with it.

[4] The appellant admitted to the police he had been responsible for punching the victim but denied any other involvement. In particular, he denied kicking the victim or having any part in or knowledge of the alleged attack on the victim with a bottle.

[5] The Crown case turned substantially upon the evidence of the victim and two female witnesses, a Ms Te Nahu and a Ms Katipa. In important respects, the evidence of the victim differed from that of the two women. The victim’s evidence was that he was punched by the appellant inside the bar but he was unable to say that

the appellant was involved in any attack outside the bar or that the appellant attacked him with 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 Peato

Details

AGLC: R v Peato [2009] NZCA 333
Case: [2009] NZCA 333
Decision Date: 29 July 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Iona Peato successfully appealed against his conviction on two counts: injuring with intent to injure and wounding with intent to cause grievous bodily harm. The convictions were quashed and a retrial was ordered. The Court held that the trial judge failed to give an adequate direction on identification as required by section 126 of the Evidence Act 2006, and also failed to clearly identify the issues and the prosecution and defence cases in relation to each issue. The summing up did not adequately put the defence case, and there were concerns about the way in which the judge dealt with the burden and onus of proof. The Court concluded that these errors led to a miscarriage of justice. The Court also commented on the limited probative value and potential prejudicial effect of dock identifications, and the importance of following proper identification procedures.

Orders