Tohiariki v Police
[2019] NZHC 303
•28 February 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000131
[2019] NZHC 303
BETWEEN MAUI TOHIARIKI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 February 2019 Appearances:
T Aickin for Appellant
K A Courteney for Respondent
Judgment:
28 February 2019
ORAL JUDGMENT OF GENDALL J
TOHIARIKI v NEW ZEALAND POLICE [2019] NZHC 303 [28 February 2019]
Introduction
[1] On 2 August 2018 Judge Hastings in the District Court found the appellant Maui Tohiariki guilty on one charge of male assaults female and one charge of breaching a protection order. Mr Tohiariki appeals against both convictions.
Facts
[2] Turning to the background facts in this matter, Mr Tohiariki and the complainant, Ms Q, had been in an “on and off” relationship for approximately four years prior to the alleged offending.
[3] On 2 December 2017 Mr Tohiariki and the complainant were at New Brighton Beach with their son and other members of the complainant’s family. Mr Tohiariki spent most of this time in the water with his son, while the complainant sat on the beach and drank six Smirnoff vodka RTDs. Mr Tohiariki said he saw the complainant throwing cans on the beach while she was drinking, which he considered inappropriate with families and children in the vicinity. The complainant and Mr Tohiariki agreed that Mr Tohiariki was not drinking.
[4] The complainant and Mr Tohiariki got into an argument it appears about the results of the complainant’s recent pregnancy and STD tests. Mr Tohiariki then walked off back to where his car was parked. The complainant gave evidence that he returned to the beach, asking her for his phone. She said she told him that she never had his phone. She said Mr Tohiariki responded that if he gets back to the car and his phone’s not there, she should “watch out when [she] gets home ‘cos looks at [her] house”.
[5] The complainant followed him back to his car as he walked back to it. Mr Tohiariki then got into the driver’s seat and the complainant got into the passenger seat. The complainant gave evidence that she saw her house key on his key ring and reached to grab it which caused them both to start struggling with each other. She said she moved onto her knees to reach for the keys and that he then bit her. She said during this, the rear-view mirror came off the windscreen and as she left the car she used the mirror to smash one of the car’s windows. The complainant admitted that she initially lied to police that Mr Tohiariki had hit her with the mirror. Mr Tohiariki
gave evidence that during the struggling he was merely responding to her attack which consisted of her hitting him, scratching his face, grabbing his hair and putting her elbow on his throat. He said that while she had her arm pressed against his throat he bit it and he also accepted that he bit her one further time on the back.
Principles on appeal
[6] Turning now to the principles to be applied on appeal, s 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if is satisfied that the trial Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or, has resulted in an unfair trial.1 In this section, a trial includes a proceeding in which the appellant pleaded guilty.2
District Court decision
[7] Turning now to the District Court decision, there Judge Hastings noted that there were issues with the complainant’s evidence because she was intoxicated at the time of the incident and she had admitted to lying to police on three issues in relation to the incident. His Honour noted the initial lies were only retracted when the complainant was confronted by police about the inconsistencies between her account and other evidence.
[8] His Honour also recognised that there were problems with Mr Tohiariki’s evidence which lay in internal inconsistencies and consistency with the physical evidence of the photographs. The Judge first said he could not see how the complainant could have had “one arm on [his] throat, one arm trying to hit him and be grabbing his hair while at the same time reaching for the keys in the ignition”, as was Mr Tohiariki’s evidence. His Honour also found that the defendant had other options available to him instead of biting the complainant. He could have got out of the car or possibly restrained her hands. Further, Judge Hastings found it implausible that the
1 Section 232(4).
2 Section 232(5).
complainant’s arm would have been on Mr Tohiariki’s throat when he bit it, because the bite mark was located at the back of the upper part of the arm.
[9] Because Judge Hastings also found that the physical evidence showed that the complainant’s arm could not have been against Mr Tohiariki’s throat at the time he bit it, His Honour found that he was not in fact acting in self-defence which was the defence Mr Tohiariki had endeavoured to advance. His Honour also found that in any event, the force used was not reasonable in the circumstances as believed to be by Mr Tohiariki.
Submissions
Appellant’s submissions
[10] Turning now to the submissions advanced on this appeal, Ms Aickin, counsel for the appellant, Mr Tohiariki, submitted that Judge Hastings made a number of errors in assessing the evidence at trial such that a miscarriage of justice has occurred here.
[11] Ms Aickin contends first that Judge Hastings placed too much weight on the complainant’s evidence because she was intoxicated at the time of the incident and has admitted to lying on multiple issues to the police. Counsel also submits his Honour misunderstood Mr Tohiariki’s evidence by concluding that he was saying that the complainant had one arm on his throat, one arm trying to hit him and be grabbing his hair while also reaching for the keys.
[12] Further, Ms Aickin submits the Judge erred in not taking into account the complainant’s smashing of the car window with the mirror when assessing Mr Tohiariki’s perception of the circumstances. She submits this shows the complainant was in a volatile and unpredictable state, while also being intoxicated, which would support Mr Tohiariki’s claim that he was protecting himself and acting solely in self-defence. Ms Aickin also submits that the Judge erred in finding that Mr Tohiariki had other options available to him, because the issue is not whether there were other options but whether the course of action actually taken was necessary in the circumstances to defend himself. She says that in any event, exiting the car was
not an option available to Mr Tohiariki because he was in a confined space in the driver’s seat with his seatbelt fastened, and was under attack from the complainant.
[13] Ms Aickin submits the Judge could not be sure beyond reasonable doubt that the second bite (on the complainant’s back) was inflicted by Mr Tohiariki because neither the complainant nor Mr Tohiariki remembered the bite being inflicted and no medical evidence was called at trial to establish this.
Respondent’s submissions
[14] Turning now to the respondent’s submissions, Ms Courteney for the police submitted that given the biting was agreed to have occurred, Judge Hastings was entitled to conclude that the prosecution had proved the assault beyond reasonable doubt, and that the issue then became whether Mr Tohiariki’s acts were done in self- defence. She went on to submit that it was open to the Judge to find that Mr Tohiariki was not acting in self-defence because he failed to take any other option available to him that would have avoided the need to bite the complainant. Ms Courteney finally argues that His Honour was not required to consider the fact that the complainant smashed the passenger window after Mr Tohiariki bit her, as it was not relevant to his state of mind when she was in the car struggling with him.
Analysis
[15] Turning now to my analysis of these matters, as to the weight given to the complainant’s evidence, I am satisfied that Judge Hastings was fully aware of the risks associated with relying on her evidence. His Honour expressly acknowledged that there were problems with her evidence, pointing to her intoxication and her admitted lies to the police.3 However, his Honour was required to weigh this with the other physical evidence which was present and against what he saw as problems with Mr Tohiariki’s evidence. Ultimately though, his Honour did not solely rely on the complainant’s evidence in reaching his evidential conclusions. The Judge found that the physical evidence corroborated the complainant’s evidence while directly contradicting aspects of Mr Tohiariki’s account. This is altogether different from
3 Police v Tohiariki [2018] NZDC 21696 at [8].
allegations that the complainant’s evidence was troubled by her propensity to lie and her being intoxicated, which can only amount to a risk that her evidence is unreliable. The Judge’s reliance on the physical evidence too is an appropriate way of dealing with what are said to be inconsistencies in the evidence and there is nothing to suggest his Honour placed “undue” weight here on the complainant’s evidence. Evidence of the bite mark on the complainant’s arm was clear and both she and the appellant agreed in evidence that the biting had occurred.
[16] In relation to whether Judge Hastings should have placed more weight on the complainant’s smashing of the car window as showing her volatile, unpredictable, and intoxicated state at the time of the incident, in my view, Ms Aickin is wrong to say that the Judge erred in not explicitly referring to it. The smashing of the window occurred after the biting, so while it may be relevant to some extent, it occurred after the fact. It would appear that the Judge considered there were other aspects of the circumstances that had greater relevance to the question of whether Mr Tohiariki was acting in self-defence and whether the force he used was reasonable in those circumstances.
[17] Finally, on the question of whether the availability of alternative options is relevant to whether someone acts in self-defence or not, it is also wrong to submit this is entirely irrelevant. In Vincent v R the Court of Appeal held that where the danger can otherwise be averted, recourse should be had to other means of avoidance.4 This does not imply a “duty of retreat”,5 and in some cases escape from a situation will not be considered the reasonable option, for example where the aggressor is using a weapon and is aggressive, hostile and unpredictable.6 However, the starting point, as set out in Vincent, is that the availability of an alternative that involves no or less harmful use of force is directly relevant to whether the force actually used in a self- defence situation was reasonable. Thus, I am satisfied here Judge Hastings did not err in concluding that self-defence was not made out. I reach that conclusion in part due to what were real options open to Mr Tohiariki at the time of either leaving the car or
4 Vincent v R [2015] NZCA 201 at [29].
5 See R v Savage [1991] 3 NZLR 155 (CA) at 158.
6 See Dixon v Police HC Palmerston North HP5/86, 13 February 1986.
restraining the complainant’s hands. These options were not utilised by Mr Tohiariki, however, when they were clearly open to him.
Conclusion
[18] In conclusion, for all the reasons I have outlined above, I am satisfied Judge Hastings made no error in his assessment of the evidence and therefore no miscarriage of justice has occurred here. This appeal is dismissed.
...................................................
Gendall J
Solicitors:
Trudi Aickin, Barrister, Christchurch
Raymond Donnelly & Co, Christchurch
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