R v Wi - [2007] NZCA 96

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITON OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA259/05 [2007] NZCA 96

THE QUEEN

v

AARON MARK WI

Court: Chambers, Chisholm and Gendall JJ Counsel: R J Earwaker for Appellant
M F Laracy for Crown

Judgment: 27 March 2007 at 9.30 am
(On the papers)

JUDGMENT OF THE COURT

A The appeal is allowed.

B The convictions are quashed. C A new trial is directed.
D Bail is to continue on current terms until further order of the

District Court. Any application to vary bail terms is to be made to the

R V WI CA CA259/05 27 March 2007

District Court. The appellant must present himself to the District Court at Tauranga at the callover scheduled for 9 am on 8 May 2007.

EAn order is made that the reasons for judgment not be published in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial.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.

REASONS OF THE COURT

(Given by Chambers J)

Introduction

[1] Following a trial before Judge Rollo and a jury, Aaron Wi was found guilty of wounding Constable Gavin Bennett with intent to cause grievous bodily harm and assaulting Constable Paul Horler with intent to injure. Judge Rollo subsequently sentenced Mr Wi to an effective sentence of seven years’ imprisonment.

[2] Mr Wi appealed against his conviction and sentence. Once the Crown had read and considered the submissions filed by Mr Earwaker, for Mr Wi, Crown counsel, Ms Laracy, filed a memorandum in which she advised that this court was “likely to find that a miscarriage of justice [had] resulted”. She asked for a telephone conference.

[3] At that conference, counsel agreed that they did not require an oral hearing unless the court did. I advised counsel that each member of the panel would consider the parties’ submissions separately; if any member of the panel wanted to hear from counsel, the original hearing date (of 23 April 2007) would be maintained. As it turns out, no member of the panel has felt it necessary to hear from counsel.

We have all been satisfied on the basis of the submissions filed that the appeal against conviction must be allowed.

[4] The facts of the case relevant to the appeal can be briefly stated. A fracas developed between the two constables and a group of people of whom Mr Wi was one. It was the Crown case that, during that fracas, Mr Wi had hit Constable Bennett over the head with a beer handle. The Crown further alleged Mr Wi had later assaulted the other constable by trying to gouge his eyes out.

[5] There is no dispute that Mr Wi’s instructions to his trial counsel, Mr Stephen Clews, 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 Wi

Details

AGLC: R v Wi [2007] NZCA 96
Case: [2007] NZCA 96
Decision Date: 27 March 2007

CaseChat Overview and Summary

In the case of R v Wi, the appellant, Aaron Mark Wi, was found guilty of wounding Constable Gavin Bennett with intent to cause grievous bodily harm and assaulting Constable Paul Horler with intent to injure. Mr Wi was sentenced to an effective seven years’ imprisonment. He appealed against his conviction and sentence, and the appeal was heard by the Court of Appeal of New Zealand.

The legal issues before the court were whether Mr Wi’s counsel failed to follow instructions, the judge misdirected the jury, and whether there was fresh evidence available. The court determined that Mr Wi’s counsel failed to follow instructions by admitting that Mr Wi had repeatedly punched Constable Bennett on the head, which was contrary to Mr Wi’s instructions. The court also found that the judge misdirected the jury by allowing the possibility that Mr Wi caused grievous bodily harm with his fist, which was not consistent with the Crown’s case or the judge’s previous directions. The court found that these two errors together constituted a miscarriage of justice, and both convictions were quashed.

The court directed a new trial for Mr Wi and ordered that the reasons for judgment not be published in the news media or on the internet or in any other publicly accessible database until the final disposition of the new trial. Publication in a law report or law digest is permitted. Mr Wi’s bail is to continue on current terms until further order of the District Court. Any application to vary bail terms is to be made to the District Court. The appellant must present himself to the District Court at Tauranga at the callover scheduled for 9 am on 8 May 2007.

Orders