Tuhaka v The Queen

[2015] NZCA 540

NOTE:  PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA516/2013
[2015] NZCA 540

BETWEEN	HETI TUHAKA Appellant
AND	THE QUEEN Respondent

Hearing:	4 November 2015
Court:	Stevens, Fogarty and Mallon JJ
Counsel:	N Levy for Appellant P D Marshall for Respondent
Judgment:	13 November 2015 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

1. Following a trial before Judge Barry and a jury in the Wellington District Court, Mr Tuhaka was found guilty of six counts of sexual violation against two female complainants, Z and X, aged between seven and 10 years at the time of the offending.  In respect of Z, Mr Tuhaka was found guilty of rape and unlawful sexual connection.  In respect of X, he was found guilty of two counts of unlawful sexual connection, and one count each of rape and doing an indecent act.  Mr Tuhaka was sentenced to 13 years’ imprisonment with a minimum period of imprisonment of six years.[1]

   [1]R v Tuhaka DC Wellington CRI-2012-091-619, 2 July 2013.

2. Mr Tuhaka now appeals against his conviction on the basis that the Judge’s directions:

   (a)as to the complainants’ motive to lie about the offending were inadequate;

   (b)as to propensity evidence were inconsistent with recent authority; and

   (c)as to the complainants’ demeanour needed to be specifically addressed and were not.

3. There is also a challenge to the adequacy of the question trail in that it failed to include written directions on the above topics.  Mr Tuhaka contends these errors, either singularly or cumulatively, created a real risk of miscarriage of justice and therefore his appeal against conviction should be allowed.

Background

1. The offending occurred on a number of occasions when it is said Mr Tuhaka opportunistically took advantage of being alone with the girls.  The circumstances of the offending for which Mr Tuhaka was convicted comprised:

   (a)The occasion Mr Tuhaka came into the girls’ room, climbed on to Z’s bed, told her to pull her pants down, and raped her.  She was seven years old.

   (b)A week later, in a game of hide and seek, Z was hiding under the girls’ bunk beds, whereupon Mr Tuhaka entered the room and locked the door.  He told her to come out from under the bed and to pull her pants down, and he inserted his finger into her vagina.

   (c)On one occasion when X’s mother and sisters had left the house to get pizza, X entered her mother’s room where Mr Tuhaka was present.  He told X to lie down and pushed her onto the bed, turned off the light and put his fingers into her vagina and then raped her.

   (d)On a further occasion, Mr Tuhaka came into the girls’ room and whilst Z was sleeping, climbed onto X’s bunk.  He pulled her pyjama pants down and inserted his finger into her vagina and made her…