Ropiha v The Queen - [2018] NZHC 3204

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-419-0046

[2018] NZHC 3204

BETWEEN
WILLIAM ROBERT ROPIHA

Appellant

AND

THE QUEEN

Respondent

Hearing: 6 December 2018

Appearances:

J E Tarrant for the Appellant B T Vaili for the Respondent

Judgment:

6 December 2018

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
Jessica Tarrant, Barrister, Hamilton Almao Douch, Hamilton.

ROPIHA v R [2018] NZHC 3204 [6 December 2018]

Introduction

On 9 August 2018, Mr Ropiha was convicted in the District Court at Huntly on a charge of male assaults female,1 following a defended Judge-alone trial before Judge Saunders. Her Honour sentenced him to come up for sentence if called within nine months.2

Mr Ropiha appeals his conviction on grounds a miscarriage of justice occurred because the victim, contended to be the key witness to the alleged offending, was not called as a witness for either prosecution or defence. Although he also formally appeals his sentence, no submissions are directed at challenging his sentence. Neither do I see any reasonable ground for doing so. The sentence is clearly within range, and I do not address it further.

Approach

This is a first appeal against conviction.3 As such, I must allow the appeal if I am satisfied the Judge erred in her assessment of the evidence to such an extent a miscarriage of justice has occurred, or because a miscarriage has occurred for any reason.4 Miscarriage of justice is defined to mean:5

… any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

A ‘real risk’ exists if “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.6 Even if a conviction was inevitable, it cannot be sustained if resulting from an unfair trial.7

Crimes Act 1961, s 194(b).
New Zealand Police v Ropiha [2018] NZDC 16825.
Criminal Procedure Act 2011, ss 229-230.
Section 232(2).
Subsection (4).
R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [37].

Further, I am required to make my own assessment of and form my own opinion on the facts, independently of those found by the District Court Judge.8 In coming to that view, I must pay appropriate deference to those findings as made with the benefit of seeing and hearing witnesses giving evidence. Still, mine is a review function: that I might disagree with the Judge’s factual assessment is not enough – “[s]omething more is required to meet the ‘real risk’ test”.9 And, the appellant, Mr Ropiha, bears the onus of persuading me the judgment under appeal is wrong.10

Discussion

At trial, the prosecution called evidence from four witnesses: the arresting officer, and three other people present in the home…

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 Ropiha v The Queen

Details

AGLC: Ropiha v The Queen [2018] NZHC 3204
Case: [2018] NZHC 3204
Decision Date: 6 December 2018

CaseChat Overview and Summary

The case of Ropiha v The Queen involves William Robert Ropiha, who was convicted by the District Court at Huntly of male assaults female. Ropiha appealed his conviction on the grounds that a miscarriage of justice occurred because the victim, who was the key witness, was not called as a witness for either the prosecution or the defence. The appeal was heard by Jagose J in the High Court of New Zealand.

The legal issues before the court were whether the failure to call the complainant as a witness constituted a miscarriage of justice, as defined by the Crimes Act 1961. Specifically, the court needed to determine whether the failure created a real risk that the outcome of the trial was affected, or if it resulted in an unfair trial. The court was also required to assess whether the sentence imposed by the District Court was within the appropriate range.

Jagose J found that while the failure to call the complainant as a witness was an irregularity, it did not amount to a miscarriage of justice. The judge noted that the evidence from the other witnesses was compelling, and the inconsistencies in their accounts did not undermine the credibility of the prosecution's case. The judge also found that the sentence imposed by the District Court was within the appropriate range.

The appeal against both conviction and sentence was dismissed by the High Court. The court found that the trial was not unfair, and that the sentence imposed was appropriate. The decision reinforces the importance of calling key witnesses in criminal trials, but also acknowledges that the failure to do so does not automatically result in a miscarriage of justice if the evidence from other witnesses is compelling.

Orders