The Queen v Tanuvasa - [2006] NZCA 370

IN THE COURT OF APPEAL OF NEW ZEALAND
CA127/06
CA274/06
THE QUEEN
v
LELEI TANUVASA
KELETI TANUVASA
Hearing:20 November 2006 and 12 December 2006

Court:O'Regan, Baragwanath and Ronald Young JJ
Counsel:L C Ord and G M Fairbrother for Lelei Tanuvasa

N Levy for Keleti Tanuvasa
B J Horsley for Crown

Judgment:21 December 2006 at 4 pm

JUDGMENT OF THE COURT

AWe extend the time for the filing of the appellants’ notices of appeal until the date on which they were actually received by the Court.
BLelei Tanuvasa’s appeal against conviction and sentence on Count 1 are allowed and the conviction and sentence on that count are quashed. We direct the entry of an acquittal on that count and that there be no retrial upon it. Her appeal against conviction and sentence on count 3 is dismissed.
CKeleti Tanuvasa’s appeal against conviction is dismissed.

REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] Mr and Mrs Tanuvasa faced charges in the District Court involving violence against their baby son K. The charges were:
(a)Count 1: That Mrs Tanuvasa injured K with intent to injure in July 2003;
(b)Count 2: That Mr and Mrs Tanuvasa failed to provide the necessaries of life to K, endangering K’s life, between 1 July 2003 and 4 September 2003;
(c)Count 3: That Mr and Mrs Tanuvasa caused grievous bodily harm to K with intent to cause grievous bodily harm on 4 September 2003.

[2]       The trial Judge, Judge Gittos, discharged both Mr and Mrs Tanuvasa under s 347 of the Crimes Act 1961 in respect of Count 2. Mrs Tanuvasa was convicted on Counts 1 and 3, and Mr Tanuvasa was convicted on Count 3. Both were sentenced to seven years imprisonment.
[3]       Mrs Tanuvasa appealed against conviction and sentence, and Mr Tanuvasa appealed against conviction. Mrs Tanuvasa’s appeal against sentence was not pursued in argument, and we formally dismiss it.
[4]       Both appeals were filed some months outside the appeal period, we were told that this was due to the failure of a lawyer instructed to file appeals to do so. The Crown accepted that no prejudice had arisen from the delay and in the circumstances we extend the time for the filing of the notices of appeal by both appellants until the days on which their respective notices of appeal were actually filed.
Grounds of appeal: Count 1
[5]       There is a significant number of grounds of appeal. Because of the view we take on one of them, we have concluded that the conviction of Mrs Tanuvasa in relation to Count 1 must be set aside. As our decision in that regard affects the analysis of a number of grounds of appeal, we will outline our reasons for that conclusion first, before turning to the grounds of appeal relating to Count 3.
Count 1: Similar fact evidence
[6]       The Crown’s case in relation to Count 1 relied in part on the Crown’s allegation that Mrs Tanuvasa was…

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 The Queen v Tanuvasa

Details

AGLC: The Queen v Tanuvasa [2006] NZCA 370
Case: [2006] NZCA 370
Decision Date: 21 December 2006

CaseChat Overview and Summary

Lelei and Keleti Tanuvasa were convicted of multiple counts of child abuse against their baby son K. The Crown alleged that the appellants had caused grievous bodily harm to K with intent to cause grievous bodily harm, and that the appellants had failed to provide the necessaries of life to K, endangering K’s life. The trial judge discharged both appellants on the charge of failing to provide the necessaries of life. Mrs Tanuvasa was convicted on two counts and Mr Tanuvasa was convicted on one count. The appellants appealed against their convictions and sentences. The Court of Appeal dismissed the appeals against conviction on Count 3 and dismissed the appeal against sentence by Mrs Tanuvasa. The appeal against conviction and sentence on Count 1 was allowed. The Court found that the conviction on Count 1 was unsafe because the trial judge’s summing up left open the possibility that the injuries to K were caused by Mr Tanuvasa, rather than Mrs Tanuvasa. Without the evidence on Count 3, there was insufficient evidence on which a properly directed jury could convict on Count 1. The Court did not order a retrial because the jury’s verdict on Count 3 did not allow scope for the admission of similar fact evidence at a retrial.

Orders