Te Whaiti v Police - [2017] NZHC 487

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-92 [2017] NZHC 487

BETWEEN
TIPENE TE WHAITI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 February 2017

Appearances:

C O Thorburn & N P Chisnall for Appellant
S T A Ellis for Respondent

Judgment:

17 March 2017

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 17 March 2017 at 12pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Luke Cunningham Clere, Wellington

TE WHAITI v POLICE [2017] NZHC 487 [17 March 2017]

Introduction

[1] On 8 September 2016, following a Judge-alone trial in the Hutt Valley District Court, the appellant, Mr Te Whaiti, was convicted of four charges of breach of a protection order,1 and one each of assault,2 male assaults female,3 and assault with a weapon4.

[2] The charges all relate to offences alleged to have been committed against the appellant’s former partner.

[3] The appellant appeals his conviction on the grounds that the Judge erred in admitting the complainant’s previous statement into evidence, and by failing to consider the admissible evidence relevant to each individual charge and instead placing too much weight on particular aspects of the complainant’s evidence.

Factual background

[4] The following narrative of the factual background is taken from the Police summary of facts and is also the basis on which the prosecution case was advanced at trial.

[5] It is accepted by the appellant that on 23 May 2013, a final protection order was served on him by the District Court, naming him as the respondent and the complainant as the applicant. The protection order included the standard condition that the appellant was not to physically abuse the complainant.

[6] The prosecution alleged that between 1 March 2016 and 4 May 2016, during which time the complainant and the appellant were residing together at an address in Lower Hutt, the appellant had regularly assaulted the complainant. The frequency of the assaults was such that the complainant lost track of which of her multiple bruises were caused by which of the assaults. The appellant would not allow the complainant
to leave the house and controlled what she did. This conduct was the basis of the first

1      Domestic Violence Act 1995, ss 19(1)(a) and 49(1)(a): maximum penalty of three years’
imprisonment.
2      Crimes Act 1961, s 196: maximum penalty of one year imprisonment.
3      Section 194: maximum penalty of two years’ imprisonment.
4      Section 202C: maximum penalty of five years’ imprisonment.

of the four charges alleging a breach of the protection order, which was laid as a representative charge.

[7] On 4 May 2016, the appellant and the complainant had an argument and the appellant told the complainant to get into their vehicle, which she did reluctantly. As they were travelling in the vehicle, the appellant reached across towards the complainant and punched her leg hard, leaving a large bruise. This conduct constituted the second charge of breach of a protection order and the charge of common…

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: [2017] NZHC 487
Decision Date: 17 March 2017

CaseChat Overview and Summary

Te Whaiti v Police was an appeal against conviction in the High Court of New Zealand. The appellant, Mr Te Whaiti, was convicted in the Hutt Valley District Court of multiple charges including breach of a protection order, assault, male assaults female, and assault with a weapon. The appellant appealed on the grounds that the District Court Judge erred in admitting the complainant's previous statement into evidence and by failing to consider the admissible evidence relevant to each individual charge, instead placing too much weight on particular aspects of the complainant's evidence.

The High Court found that the complainant's previous statement, which was admitted as an exhibit, did not play a significant part in the determination of the charges faced by the appellant at his trial. The statement was used for the limited purpose of refreshing the complainant's memory and was not relied upon by the Judge as proof for any purpose that was unfairly prejudicial to the appellant or which could possibly have resulted in a miscarriage of justice. Furthermore, the Judge did not consider whether the elements of each individual charge had been proven beyond reasonable doubt, but the High Court found that the Judge's finding that the representative charge was proved was clearly open on the evidence.

Finally, the High Court found that the Judge did not engage in any improper propensity reasoning in the course of considering the evidence and determining the verdicts. The appeal against conviction was dismissed.

Orders