The Queen v Toleafoa - [2008] NZCA 447

IN THE COURT OF APPEAL OF NEW ZEALAND
CA72/2008
[2008] NZCA 447
THE QUEEN
v
LUTHER TOLEAFOA
Hearing:22 September 2008

Court:O'Regan, Gendall and Fogarty JJ
Counsel:J P Temm for Appellant

M T Davies and N M H Whittington for the Crown

Judgment:29 October 2008 at 11.30 am

JUDGMENT OF THE COURT

AWe grant an extension of time for filing the notice of appeal to 25 February 2008.

B We decline leave to adduce evidence in support of the appeal.
C We dismiss the appeal.
DThe appellant must surrender himself to the police at the Rotorua police station by 9 am on 31 October 2008 to resume his sentence of imprisonment.

REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]        Mr Toleafoa seeks an extension of time for the filing of a notice of appeal against conviction and sentence on two counts of kidnapping and one count of injuring with intent to cause grievous bodily harm. He was sentenced to five years imprisonment. At the direction of Glazebrook J, the application for extension of time and the substantive appeal were heard together.
[2]        The intended appeal against conviction is brought on the basis that there was a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961. The miscarriage is said to have arisen because the evidence of a Crown witness at trial, Tashita McDonald-Rikihana, is alleged to have been false. She is said to have recanted from her trial evidence. Mr Toleafoa seeks leave to adduce evidence in support of his appeal. That evidence is contained in an affidavit from the private investigator, Mr Hikaka. He interviewed Ms McDonald-Rikihana and a transcript of that interview is an exhibit to the affidavit.
[3]        The intended appeal against sentence was not pursued in submissions. Mr Toleafoa had served about two years of his sentence when he was granted bail by Asher J pending this appeal. We understand that if he is required to resume his sentence he will almost immediately be eligible for parole.
[4]        The notice of appeal was considerably out of time and the Crown contests the granting of an extension of time. The Crown also opposes the admission of Mr Hikaka’s affidavit and argues that, in any event, the appeal should be dismissed if an extension of time is granted.
Issues
[5]        The issues requiring determination are:
(a)Should an extension of time for filing the notice of appeal be given?
(b)Should leave to adduce evidence in support of the appeal be given?
(c)Has there been a miscarriage of justice?

[6]        The issues relating to the admission of new evidence and the possibility that a miscarriage of justice occurred are interlinked.
[7]        Before addressing these issues, we will outline the background facts and the evidence of Ms McDonald-Rikihana which is at the centre of the proposed appeal.
Background
[8]        The Crown case at trial was that on 7 August 2005 Mr Toleafoa, along with three of the co-accused, Mr Hill, Mr Dick Tamai and Mr Irving, formed a plan…

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 Toleafoa

Details

AGLC: The Queen v Toleafoa [2008] NZCA 447
Case: [2008] NZCA 447
Decision Date: 29 October 2008

CaseChat Overview and Summary

In The Queen v Toleafoa, the Court of Appeal of New Zealand was asked to grant an extension of time for filing a notice of appeal against conviction and sentence on charges of kidnapping and injuring with intent to cause grievous bodily harm. The appellant, Luther Toleafoa, was sentenced to five years imprisonment. The notice of appeal was considerably out of time, and the Crown opposed granting an extension of time and the admission of new evidence in support of the appeal. The central issue was whether there had been a miscarriage of justice due to the recantation of a Crown witness's evidence. The Court of Appeal granted an extension of time for filing the notice of appeal, declined leave to adduce evidence in support of the appeal, and dismissed the appeal against conviction and sentence. The appellant was required to surrender himself to the police to resume his sentence of imprisonment. The Court found that while the proposed appeal raised matters with sufficient cogency to warrant consideration, the new evidence in the form of an affidavit from a private investigator recounting a statement from the recanting witness was not credible and should not be admitted. The Court held that it would be unfair to the Crown to treat the unsworn, untested statement as a credible recantation of sworn trial testimony.

Orders