Tohiariki v Police - [2019] NZHC 303

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…

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: [2019] NZHC 303
Decision Date: 28 February 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Maui Tohiariki, appealed against his convictions of one charge of male assaults female and one charge of breaching a protection order. The appellant had been found guilty by Judge Hastings in the District Court. The court was required to determine whether the trial Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice had occurred.

The court considered the submissions of both parties, finding that Judge Hastings was fully aware of the risks associated with relying on the complainant’s evidence, given her intoxication and admitted lies to the police. The court also found that Judge Hastings was not required to consider the fact that the complainant smashed the passenger window after the appellant bit her, as it was not relevant to his state of mind when she was in the car struggling with him. The court concluded that the availability of alternative options is directly relevant to whether the force actually used in a self-defence situation was reasonable. Therefore, the appeal was dismissed.

The court held that the trial Judge did not err in his assessment of the evidence and therefore no miscarriage of justice has occurred. The appeal was dismissed, and the convictions of the appellant were upheld.

Orders