Te Heu Heu v Police - [2014] NZHC 329

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2014-163-000001 [2014] NZHC 329

JOHN LORENZO TE HEU HEU

v

NEW ZEALAND POLICE

Hearing: 28 February 2014

Appearances: I Farquhar for the Appellant
C Macklin for the Crown

Judgment: 28 February 2014

[ORAL] JUDGMENT OF WYLIE J

TE HEU HEU v POLICE [2014] NZHC 329 [28 February 2014]

Introduction

[1] The appellant, Mr Te Heu Heu, appeals his conviction on a charge of indecent assault on a child under 12 years’ of age, laid under s 132(1) of the Crimes Act 1961. The conviction was entered following a defended hearing before Judge C J Maguire in the District Court at Taupo on 13 August 2013.

[2] Mr Te Heu Heu was sentenced to five months’ home detention on

20November 2013.

[3] The notice of appeal is dated 25 November 2013. It asserts that Judge Maguire erred in his assessment of the evidence, and that there has been a miscarriage of justice.

[4] The information is dated 14 March 2013. The relevant appeal provisions in the Criminal Procedure Act 2011 were not in force at that time, and this case therefore falls to be determined pursuant to the provisions which were then in force.1
The applicable provisions were in the Summary Proceedings Act 1957. Section 115 conferred a right of appeal to this Court where the District Court determined any information and convicted a defendant. The appeal proceeded by way of re-hearing2 and this Court had the power to hear and determine the appeal, and make such orders in relation to it as it thinks fit.3

The Information

[5] The information charges that Mr Te Heu Heu indecently assaulted an eight year-old male child sometime between 15 January 1988 and 31 December 1988.

[6] The police, in the summary of facts, allege that Mr Te Heu Heu went to an address in Turangi with a friend, and that the child was living there at the time with his parents and siblings. It was said that Mr Te Heu Heu and his friend drank alcohol
at the address, and socialised with the child’s mother.

1      Criminal Procedure Act 2011, s 397(1)(b).
2      Ibid, s 119.
3      Ibid, s 121(1).

[7] It is then asserted that the child went to sleep on a sofa bed in the lounge, and that sometime later in the evening, Mr Te Heu Heu laid down on the sofa bed next to the child. It is alleged that Mr Te Heu Heu grabbed the child’s hand and placed it on his penis. It is also alleged that Mr Te Heu Heu’s penis was erect, and that he moved the victim’s hand up and down his penis.

[8] According to the summary of facts, the victim woke up to find his hand on Mr Te Heu Heu’s penis and he was too frightened to speak or move. It is alleged that Mr Te Heu Heu told the child to be quiet, and that it was “their little secret”. 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.

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Details

Case: [2014] NZHC 329
Decision Date: 28 February 2014

CaseChat Overview and Summary

The appeal was heard by Wylie J in the High Court of New Zealand. The appellant, Mr Te Heu Heu, was appealing his conviction for indecent assault on a child under 12 years of age, which was laid under s 132(1) of the Crimes Act 1961. Mr Te Heu Heu was sentenced to five months' home detention on 20 November 2013, and the appeal was lodged on 25 November 2013. The primary issue was whether the District Court judge had erred in his assessment of the evidence, leading to a miscarriage of justice. The court examined whether the judge had properly considered the issues of identification and provided adequate reasons for rejecting the appellant's version of events.

Wylie J found that the District Court judge's reasoning was inadequate and insufficient. The judge failed to consider the risk of mistaken identity and did not provide adequate reasons for preferring the complainant's evidence over the appellant's. The court held that the judge's decision did not meet the standards set by New Zealand jurisprudence, which requires judges to provide reasoned decisions, particularly when credibility and identification are in issue. The High Court found that the conviction was unsafe due to the deficiencies in the judge's reasoning.

Given the deficiencies in the District Court's reasoning, Wylie J ordered a re-hearing of the matter in the District Court. This decision aimed to ensure fairness to both parties, allowing the complainant an opportunity to have his case properly heard while also preserving the appellant's right to appeal.

Orders