Tekira v Police - [2014] NZHC 700

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-88 [2014] NZHC 700

BETWEEN LEE REWI SAMUEL TEKIRA Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 March 2014

Appearances:

J K Mahuta-Coyle for the applicant
M Ferrier for the respondent

Judgment:

8 April 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Mr Tekira, was convicted of burglary on 7 June 2013 by Judge

Butler in the District Court at Lower Hutt following a defended hearing before the

judge alone.1

Mr Tekira now seeks to appeal, out of time, against that conviction.

Mr Tekira identifies three errors:

(a) the Judge failed to give reasons for disbelieving Mr Tekira;

(b) the Judge failed to follow the tripartite direction; and

(c) the Judge failed to bear in mind the need for caution when considering identification evidence.

These errors, Mr Tekira argues, either in combination or alone led to a miscarriage of justice that necessitates his conviction being set aside.

1 Police v Tekira DC Hutt Valley, CRI-2013-096-0233, 7 June 2013.

Leave

[2] Mr Tekira was sentenced on 17 July 2013. In terms of s 116 of the Summary

Proceedings Act 1957, any appeal against that conviction was to be filed within

28 days of that date. Mr Tekira’s notice of appeal was not filed until 9 October 2014. Mr Tekira had, it appears, earlier written to the Legal Aid Services advising of his wish to appeal. The Crown took no issue with leave being granted to Mr Tekira to appeal. In those circumstances, I grant leave.

Facts

[3] On the afternoon of 26 September 2012 an intruder entered a flat in Petone through an open garage door. The occupier of the flat returned to find the intruder in his bedroom standing by his bed. A conversation ensued, followed by a struggle in which the occupant attempted to call the police and prevent the intruder from leaving. The struggle moved to the occupant’s driveway, the intruder’s hoodie was removed and his clothing ripped revealing a Mongrel Mob tattoo on his chest and arm. The intruder then escaped.

[4] The occupant of the flat gave a general description of the intruder. About a month after the incident, the occupant of the flat identified Mr Tekira from a police photo montage, although he did not express 100 per cent certainty at his identification.

[5] The hoodie which was left at the scene was subject to DNA analysis. Mr Tekira voluntarily provided a DNA sample.

[6] The ESR report advised that a mixed DNA profile had been obtained from the hoodie, that the most likely number of contributors of DNA was three and that the majority of the DNA in the sample could have originated from Mr Tekira. The likelihood of obtaining those DNA results was at least three thousand million million
(3 x 1015) times greater if the DNA originated from Mr Tekira and two other

individuals rather than from three individuals, unrelated to Mr Tekira and each other selected at random from the New…

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 Tekira v Police

Details

AGLC: Tekira v Police [2014] NZHC 700
Case: [2014] NZHC 700
Decision Date: 8 April 2014

CaseChat Overview and Summary

In Tekira v Police, Mr Tekira sought to appeal his conviction for burglary, arguing that the trial judge erred in not providing reasons for rejecting his evidence, not following a tripartite direction, and not considering the need for caution when assessing identification evidence. The Court granted leave for the appeal, despite it being out of time. The appellant's evidence was an exculpatory narrative, while the prosecution's evidence was largely circumstantial, including DNA evidence and an identification from a photo montage. The Court found that the absence of explicit reasons for rejecting the appellant's evidence and a tripartite direction did not result in a miscarriage of justice. The Judge was aware of the onus on the Crown and the need to prove guilt beyond reasonable doubt, and the absence of explicit reasons or a tripartite direction did not prejudice the appellant or enable a Court on appeal to review the decision. Furthermore, the Judge took appropriate caution when considering the identification evidence, despite not explicitly referring to the need for caution under s 46A of the Evidence Act 2006. The Court dismissed Mr Tekira's appeal against his conviction.

The final orders of the Court were that Mr Tekira's appeal against his conviction for burglary was dismissed.

Orders