Toia v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA134/2020
[2020] NZCA 416

BETWEEN	JAMES LEONARD TOIA Appellant
AND	THE QUEEN Respondent

Hearing:	31 August 2020
Court:	Kós P, Wylie and Muir JJ
Counsel:	D J Dufty for Appellant R K Thomson for Respondent
Judgment:	31 August 2020 at 12.36 pm
Reasons:	14 September 2020

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe conviction is set aside.
CThere is to be no retrial of the matter.
DThe fine and court costs paid by Mr Toia are to be reimbursed to him out of the Crown fund, together with interest calculated as if it were payable under the Interest on Money Claims Act 2016.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

On 4 April 2008, the appellant, James Toia, was convicted following trial by jury in the District Court at Auckland on one charge of male assaults female.[1] He was fined the sum of $750 and ordered to pay court costs of $130.[2]
[1]Crimes Act 1961, s 194(b).
[2]R v Toia DC Auckland CRI-2007-090-2230, 4 April 2008.
Mr Toia’s conviction arose from a domestic incident. The complainant was his partner at the time. At trial, the Crown relied in large part on the evidence of one of the complainant’s friends. The friend gave evidence at trial that she saw the complainant on the day following the alleged incident and observed injuries on the complainant that were consistent with her version of events.
Mr Toia appealed his conviction to this Court, on the principal ground that inadmissible evidence had been given by the complainant at trial, which had led to a miscarriage of justice. At this stage there was nothing to impugn the friend’s evidence, and it was not challenged on appeal. The appeal was dismissed.[3]
[3]R v Toia [2008] NZCA 343.
In May 2012, the friend swore an affidavit. She accepted that the evidence she gave at trial was false. She said that she had not observed any injuries on the complainant. She said that the complainant was a friend, that she felt sorry for her and that, as a result, she sought to help her by lying to the police and when giving evidence in court.
In June 2012, Mr Toia applied to the Governor-General for the exercise of the Royal prerogative of mercy.
The friend was convicted of perjury in August 2014, having entered a plea of guilty to that charge. She was sentenced to 10 months’ home detention.
The Governor-General referred the matter to this Court in March 2020, pursuant to s 406(1)(a) of the Crimes Act 1961.
The Crown acknowledges the fresh evidence — namely the friend’s sworn affidavit and her conviction for perjury. It accepts that this indicates that a miscarriage of justice may well have occurred, and that the appeal should be allowed.
The hearing of the appeal took place on 31 August 2020. We allowed the appeal. We now give our reasons.

Discussion

We are satisfied that there has been a miscarriage of justice, and that the conviction should be set aside. While the consequence would ordinarily be a retrial, we agree with the Crown that in the particular circumstances of this case, there is no public interest in such course. Twelve years have elapsed since the alleged incident. The alleged offending was of only moderate seriousness. Further, the fresh evidence suggests that any further prosecution for the alleged offending would have at best a limited prospect of success.

Result

Accordingly, the appeal is allowed.
The conviction is set aside pursuant to s 233(2) of the Criminal Procedure Act 2011.
Further, we direct that there is to be no retrial of the matter.
We order, pursuant to s 350 of the Criminal Procedure Act, that the fine and court costs paid by Mr Toia are to be reimbursed to him out of the Crown fund, together with interest calculated as if it were payable under the Interest on Money Claims Act 2016.

Solicitors:
Crown Law Office, Wellington for Respondent

In the Court of Appeal of New Zealand, the appeal of James Leonard Toia against the Crown was heard and determined. Toia had been convicted in 2008 of assaulting his female partner in a domestic incident. He appealed this conviction, but the appeal was dismissed. Subsequently, the friend who had given evidence against Toia admitted to having lied under oath, resulting in Toia applying to the Governor-General for the exercise of the Royal prerogative of mercy. The Governor-General referred the matter to the Court of Appeal in 2020. The primary legal issue before the court was whether the conviction should be set aside due to the fresh evidence of perjury, and if so, whether a retrial was warranted. The court found that a miscarriage of justice had indeed occurred due to the false testimony. However, given the significant time that had elapsed since the incident, the relatively minor nature of the offence, and the limited prospects of success if the matter were retried, the court decided against ordering a retrial. Instead, the conviction was set aside, the fine and costs paid by Toia were to be reimbursed with interest, and no retrial was to be ordered.

The Court of Appeal concluded that the miscarriage of justice was evident from the fresh evidence provided by the friend who had perjured herself. The court accepted that the evidence was reliable and that Toia had been wrongfully convicted. The central question was whether the appropriate remedy was a retrial or the setting aside of the conviction without a retrial. The Court of Appeal decided that a retrial was not in the public interest due to the lengthy time elapsed since the incident, the relatively minor nature of the alleged offence, and the low likelihood of success if the case were retried. Consequently, the conviction was set aside, and Toia's fine and costs were to be reimbursed with interest. The decision not to order a retrial was based on the unique circumstances of this case, which did not warrant a retrial in the interests of justice or the public.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established