Te Hiko v The Queen - [2020] NZCA 159

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA321/2017
[2020] NZCA 159

BETWEEN	JAMES WILLIAM MANUOA TE HIKO Appellant
AND	THE QUEEN Respondent

Court:	French, Mander and Dunningham JJ
Counsel:	Appellant in person A D H Colley for Respondent
Judgment: (On the papers)	13 May 2020 at 10 am

JUDGMENT OF THE COURT

The application for a recall of the Court’s earlier decision dismissing the appeal against conviction and sentence is declined.

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REASONS OF THE COURT

(Given by French J)

Mr Te Hiko was found guilty of murder in a High Court jury trial. He was convicted and sentenced by Gilbert J to life imprisonment with a non-parole period of 17 years.[1]
[1]R v Te Hiko [2017] NZHC 1260.
Mr Te Hiko appealed his conviction and sentence to this Court. The appeal was dismissed.[2]
[2]Te Hiko v R [2019] NZCA 41.
Mr Te Hiko now seeks a re-hearing of the appeal primarily on the grounds of alleged shortcomings by the lawyer who represented him at the appeal.
The question for determination in this judgment is whether a re-hearing should be granted. Miller J directed that this issue should be determined separately from the merits of the proposed appeal. He further directed that the application for a re‑hearing should be heard on the papers.[3]
[3]R v Te Hiko CA321/2017, 29 April 2019.
The Crown opposes the application for a re-hearing. It has not filed any affidavit evidence.

The trial

The deceased was Mr Te Hiko’s partner, a Ms Thompson. There has never been any dispute that Mr Te Hiko assaulted and killed her. The issue at trial was whether the jury could be sure he had murderous intent and so guilty of murder rather than manslaughter.
The Crown case was that Mr Te Hiko had subjected Ms Thompson to a savage beating as a result of which she sustained serious head injuries. Those injuries had caused her to lose consciousness, inhale blood and possibly vomit, which then blocked her airways leading to death.
One of the key Crown witnesses was a pathologist Dr Stables. He said there were at least 70 separate injuries to Ms Thompson’s head and body. A metal pipe had been found at the scene with a hair and contact bloodstain on it. The blood was Ms Thompson’s. Dr Stables said this pipe could have caused some of the injuries based on their size, depth and well-defined impact. There were no skull fractures but deep injuries to the brain stem suggested she had experienced blows that caused the brain to move and twist with rapid loss of consciousness following.
In cross-examination, Dr Stables accepted that most of Ms Thompson’s injuries would not have caused death. He also acknowledged he could not exclude other causes of brain trauma such as falling against furniture.
Mr Te Hiko gave evidence at the trial.
He told the jury about his addiction to methamphetamine and alcohol and his efforts to seek…

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 Hiko v The Queen

Details

AGLC: Te Hiko v The Queen [2020] NZCA 159
Case: [2020] NZCA 159
Decision Date: 13 May 2020 at 10 am

CaseChat Overview and Summary

James William Manuoa Te Hiko appealed against his conviction and sentence of life imprisonment with a non-parole period of 17 years for murdering his partner, Ms Thompson. The appeal was dismissed by the Court of Appeal. Te Hiko now seeks a re-hearing of the appeal, primarily on the grounds of alleged shortcomings by the lawyer who represented him at the appeal. The central issue for determination in this judgment is whether a re-hearing should be granted.

The Court of Appeal considered the principles governing applications for a re-hearing. It is well established that this Court has an inherent power to revisit its decisions in exceptional circumstances. The Court held that recall was only available if three conditions are satisfied. First, there must have been a fundamental error of procedure. Second, unless the error is corrected, there will be a substantial miscarriage of justice. And third, there is no alternative effective remedy.

The Court considered Te Hiko's application for recall. It rejected all the grounds for recall that Te Hiko raised, including the alleged incompetence of appellate counsel. The Court found that there had been no fundamental error in the appeal process. It noted that Te Hiko had the option of seeking leave of the Supreme Court to appeal to that Court.

The Court declined the application for a recall of the earlier decision dismissing the appeal against conviction and sentence.

Orders