Rangitonga v Parker - [2017] NZCA 47

IN THE COURT OF APPEAL OF NEW ZEALAND

CA21/2017
[2017] NZCA 47

BETWEEN	NEIHANA JEREMY RANGITONGA Appellant
AND	SHANNON LAING PARKER Respondent

Hearing:	16 February 2017
Court:	Miller, Mallon and Peters JJ
Counsel:	W T Nabney for Appellant C T Tuck and B J Hall for Respondent
Judgment:	20 February 2017 at 10.00 am
Reasons:	7 March 2017

JUDGMENT OF THE COURT

A Leave to appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Miller J)

Introduction

This judgment gives our reasons for granting leave to bring, but then dismissing,[1] an appeal against a pre-trial judgment of Judge Mabey QC in the District Court at Tauranga in which the Judge refused to stay a private prosecution brought by the respondent.[2]
[1]R(CA21/2017) v P(CA21/2017) [2017] NZCA 14.
[2]Parker v Rangitonga [2016] NZDC 12960 [DC Judgment].
The Crown previously prosecuted the appellant for raping a woman, T, and injuring her with intent to injure, but chose of its own volition not to pursue the latter charge at trial in May 2012. The appellant gave evidence claiming that sex was consensual and attributing her injuries to blows that he inflicted when she stole his wallet. He was acquitted of rape. The respondent, acting on behalf of T, then brought this prosecution, which rests on the same narrative and again charges him with the offence of injury with intent to injure. The appellant says the prosecution is an abuse of process because he would not have given evidence at the first trial had he known what would happen and is now unfairly circumscribed in his defence.

The narrative

The matter has a substantial history. When the private prosecution was brought the District Court was satisfied that there was prima facie evidence available to support a charge and accordingly accepted the charging document. The appellant then sought a discharge based on a plea of previous acquittal, but failed in the District Court, the High Court,[3] and the Court of Appeal.[4] In its judgment, this Court offered the observation that:
[51] Notwithstanding our finding that the special plea is not available to Mr [R], we have some concerns about the propriety of a private prosecution now proceeding in circumstances where the Crown deliberately withdrew the wounding charge prior to his trial for rape. It has not been suggested there was any indication this charge or any similar charge would or might be re-laid. In these circumstances, Mr [R] may have had grounds to believe he was no longer in jeopardy on any charge related to his assault on the complainant.
[3]Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.
[4]Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768.
The appellant then sought a stay, supported by his own affidavit evidence and that of his trial counsel. The evidence is that the Crown chose for its own reasons to focus on the rape charge and withdraw the injuring charge. There was no…

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 Rangitonga v Parker

Details

AGLC: Rangitonga v Parker [2017] NZCA 47
Case: [2017] NZCA 47
Decision Date: 20 February 2017 at 10.00 am

CaseChat Overview and Summary

In the case of Rangitonga v Parker, the appellant, Neihana Jeremy Rangitonga, sought to appeal a pre-trial judgment in which the District Court Judge refused to stay a private prosecution brought by the respondent, Shannon Laing Parker. The private prosecution rested on the same narrative as a previous Crown prosecution against the appellant for raping a woman, T, and injuring her with intent to injure, which the Crown had chosen not to pursue at trial. The appeal was dismissed by the Court of Appeal of New Zealand, which granted leave to appeal but found no abuse of process in the private prosecution.

The court was required to decide whether the private prosecution constituted an abuse of process, given the Crown's prior decision not to pursue the charge of injury with intent to injure. The appellant argued that he would not have given evidence at the first trial had he known the private prosecution would proceed, and that he was unfairly circumscribed in his defence. The court needed to consider whether the respondent's assurance not to use the appellant's evidence from the first trial addressed the alleged unfairness, and whether the appellant's belief that he was no longer in jeopardy of prosecution for the injury charge justified a stay.

The Court of Appeal found that the appellant would have had to give evidence at the first trial regardless of the Crown's decision not to pursue the charge of injury with intent to injure, as there was unequivocal medical and photographic evidence that T had been assaulted. The court rejected the argument that the private prosecution amounted to an abuse of process, as there was no indication that the Crown would re-lay the charge or any similar charge. The court also found that the respondent's assurance not to use the appellant's evidence from the first trial addressed any unfairness resulting from his belief that he was no longer in jeopardy of prosecution for injuring T. The appeal was dismissed, and the decision to proceed with the private prosecution was upheld.

No suppression orders were attached to the judgment, as the appellant pleaded guilty after the results judgment, and the suppression orders affecting T, who had been identified in the media, were set aside in the District Court.

Orders