R v Waipuka - [2012] NZHC 3596

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-085-6023 [2012] NZHC 3596

THE QUEEN

v

NICHO ALLAN WAIPUKA

Hearing: 10 December 2012

Counsel: G Burston, T Gilbert and B Tompkins for Crown
P V Paino and S Robinson for Accused Waipuka
I M Antunovic and S Antunovic for Accused Robinson

Ruling: 10 December 2012

RULING (NO 2) OF MILLER J

[1] This ruling records my reasons for allowing the Crown to lead the evidence of

Renee Stepien.

Introduction

[2] Renee is the sister of Sylvanna Robinson-Stepien, the partner of the accused Nicho Waipuka. Her evidence related admissions that he made to Sylvanna, who recounted them to Renee, who revealed them to the police, who recorded them in a statement that Renee signed. Reneee’s evidence at trial of Mr Waipuka’s admissions can conveniently be called double hearsay, although that term is not entirely apt for
reasons which will become apparent.

R v WAIPUKA & Anor HC WN CRI-2011-085-6023 [10 December 2012]

[3] For purposes of this mid-trial ruling I assumed that Mr Waipuka will not give evidence. Sylvanna and Renee were called by the Crown, did not answer their summonses, were arrested, and eventually gave evidence as hostile witnesses. Both expressed indignation that the jury should receive hearsay evidence and denounced their out of court statements as unreliable.

The trial issues

[4] At about 5.30am on 10 December 2011 Mr Waipuka attacked the victim, Phillip Cottrell, in Boulcott Street. Mr Waipuka admits punching Mr Cottrell once, without provocation, and claims that Mr Cottrell died after falling to the ground, suffering a fractured skull. The Crown says Mr Waipuka did rather more than that. The trial issues are what blows he struck and whether he struck with murderous intent.

[5] I observe that the co-accused, Manuel Robinson, was at the scene but denies attacking Mr Cottrell or doing anything at all to encourage or assist Mr Waipuka. The Crown says he actually participated in the attack, with murderous intent, or was a party to murder. I need not say much more about his position because Renee’s evidence is admissible only as against Mr Waipuka.

The narrative

[6] Mr Waipuka returned home after the attack, and was arrested on [12] December. During the intervening period he and Sylvanna spoke about what had happened to Mr Cottrell, and Mr Robinson visited them.

[7] Sylvanna was interviewed on 13 December 2011. She gave and signed a statement in which she claimed that Mr Waipuka had been away on the night of 9
December but told her that he had gone to a movie and stayed at Mr Robinson’s

house.

[8] Renee saw Mr Waipuka’s photograph in a newspaper on the same day, 13

December, learning for the first time that he had been involved in Mr Cottrell’s

death. She contacted Sylvanna, to whom she is close. The two women met on 15

December at Featherston, where Renee lives. The discussions which were the

subject of Renee’s evidence happened then.

[9] On 1 February 2012…

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 Waipuka

Details

AGLC: R v Waipuka [2012] NZHC 3596
Case: [2012] NZHC 3596
Decision Date: 10 December 2012

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, was tasked with deciding the admissibility of evidence in the case of The Queen v Nicho Allan Waipuka. The Crown sought to introduce the testimony of Renee Stepien, who claimed to have overheard admissions made by Waipuka to his partner, Sylvanna Robinson-Stepien. The admissibility of this 'double hearsay' was contested by the defense. The core issues revolved around the reliability and probative value of the statements made by Waipuka, as recounted by Sylvanna and then by Renee, and whether these statements could be admitted under the Evidence Act 2006.

Miller J, in allowing the evidence, first examined the circumstances under which the statements were made. Waipuka's admission to Sylvanna was found to be reliable as it was made in a private setting, under no duress, and shortly after the incident. Sylvanna's recounting of Waipuka's admission to Renee was also deemed reliable, given that it was made in a private and trusted environment, and Sylvanna had a strong motivation to be truthful. The probative value of the statements was considered significant, as they contained details that could only come from someone with firsthand knowledge of the events. The court concluded that despite being hearsay, the statements were sufficiently reliable and probative to be admitted as evidence. The defense's concerns about potential prejudice to the accused were addressed by the court's instruction to the jury on the reliability of the evidence.

Orders