R v Tawhiti

The appellant, Mervyn Rawarauhia Tawhiti, was convicted in the Tauranga District Court of two counts of aggravated robbery under section 235(b) of the Crimes Act 1961. The convictions were appealed to the Court of Appeal of New Zealand, which comprised William Young P, Chisholm, and Priestley JJ. The appeal was heard on 5 November 2009, and judgment was delivered on 26 November 2009. The appeal was allowed, the convictions were quashed, and a retrial was ordered. The judgment prohibited publication of the judgment and any part of the proceedings, except for the result, in news media or on the Internet or other publicly available database until the final disposition of the retrial. Publication in a law report or law digest was permitted.

The legal issue before the Court was whether the appellant's trial counsel's failure to call available alibi witnesses resulted in a miscarriage of justice. The appellant's trial counsel, Mr Balme, had been informed by the appellant that alibi witnesses might be called, but the appellant failed to provide their names and keep appointments with his counsel. The appellant's alibi witnesses did not appear in court on the morning the trial began, and Mr Balme did not call them despite their presence in court during the closing addresses. The Court held that the appellant's trial counsel's failure to call the alibi witnesses was a procedural error, but the more significant issue was whether the appellant's convictions were safe. The Court concluded that the failure to call the alibi evidence might have tipped the balance away from the jury being left with a reasonable doubt on the central identification issue, and thus there had been a miscarriage of justice. The appeal was allowed, the convictions were quashed, and a retrial was ordered.

The Court ordered that the appeal was allowed, the two convictions entered against the appellant in the Tauranga District Court on 21 October 2008 were quashed, and a retrial was ordered. The judgment prohibited publication of the judgment and any part of the proceedings, except for the result, in news media or on the Internet or other publicly available database until the final disposition of the retrial. Publication in a law report or law digest was permitted.