Te Hei v The Queen - [2017] NZCA 299

IN THE COURT OF APPEAL OF NEW ZEALAND

CA615/2016
[2017] NZCA 299

BETWEEN	WARREN CHARLES TE HEI Appellant
AND	THE QUEEN Respondent

Hearing:	21 June 2017
Court:	Asher, Venning and Dobson JJ
Counsel:	S K Green for Appellant Z R Johnston for Respondent
Judgment:	13 July 2017 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Dobson J)

This is an appeal against convictions for wounding with intent to cause grievous bodily harm, and assault with intent to injure. The appeal focuses on a number of aspects in which the trial Judge dealt with issues going to the identity of the appellant, Mr Te Hei, as the offender.
The appeal was brought out of time, without any explanation at the time it was brought for the delay in the appeal being pursued. Shortly before the hearing the appellant filed an affidavit explaining the delay. The Crown did not object to leave being granted for the appeal to be brought out of time. The granting of leave should not be assumed and that aspect of the appeal was inadequately prepared. However, in the circumstances of this case, we are prepared to grant the requisite leave.
The trial was in the District Court at Gisborne before District Court Judge Adeane. Judge Adeane declined jurisdiction on sentencing. On 7 July 2016 Clark J sentenced Mr Te Hei to preventive detention and ordered him to serve a minimum term of five years’ imprisonment.[1] Mr Te Hei also appealed against that sentence, but no submissions in support of the sentence appeal were filed. It was formally abandoned at the hearing.

Circumstances of the offending

[1]R v Te Hei [2016] NZHC 1538.

On 8 August 2014 two cousins, Elsie Collier and Erihi Donnelly, were drinking at the home of one of their aunts in Ranfurly St, Gisborne. The Crown case was that Ms Donnelly walked to the home of another aunt a few doors away and was in the vicinity of the second house when a car containing Mr Te Hei pulled up nearby. Ms Collier had stayed at the first house and went outside upon hearing Ms Donnelly screaming. Ms Collier saw her running back towards the first house, chased by a man. Ms Collier moved towards the man to protect Ms Donnelly. The man went back to the car he had arrived in and took out a machete which he swung towards Ms Collier’s head. She put her hands up to defend herself and was wounded several times on the hand. That attack was the basis for the charge of wounding with intent to cause grievous bodily harm. The man then hit her in the head with the wooden part of the machete knocking her to the ground. That attack led to the charge of assault with intent to injure.
The driver of the car called the attacker to return to it…

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 Te Hei v The Queen

Details

AGLC: Te Hei v The Queen [2017] NZCA 299
Case: [2017] NZCA 299
Decision Date: 13 July 2017 at 11.30 am

CaseChat Overview and Summary

Warren Charles Te Hei appealed against his convictions for wounding with intent to cause grievous bodily harm and assault with intent to injure, arguing that the trial judge's handling of identification evidence was flawed and that his counsel's performance was deficient. The appeal was brought out of time, but leave was granted as the Crown did not object and the appellant provided an explanation for the delay. The key issue was whether the trial judge properly assessed and directed the jury on the identification evidence, particularly from the witnesses who eventually identified Mr Te Hei as the attacker.

The Court found that there was no material error in the trial counsel's decision not to challenge the absence of a formal identification procedure, as the witnesses' statements evolved to recognise Mr Te Hei from prior acquaintance, making a formal procedure less necessary. The identification evidence was admissible and appropriately tested in cross-examination. While the trial judge's summing-up could have been more detailed, particularly regarding the inconsistencies in the witnesses' evidence, the Court concluded that the judge's overall directions sufficiently warned the jury about the risks of relying on identification evidence. The Court also rejected the claim that the judge's comment about multiple witnesses hearing the attacker's name as "Warren" was erroneous, and that the leading question to a witness was inappropriate.

The appeal was dismissed, and the convictions were upheld. The Court granted the application for an extension of time to appeal.

Orders