Waitokia v The Queen - [2018] NZCA 198

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA19/2018
[2018] NZCA 198

BETWEEN	TANIELA KOTOITOGA DAVEN TIAKO WAITOKIA Appellant
AND	THE QUEEN Respondent

Hearing:	23 May 2018
Court:	French, Ellis and Woolford JJ
Counsel:	J-A Kincade and A Shendi for Appellant M J Lillico for Respondent
Judgment:	18 June 2018 at 10 am

JUDGMENT OF THE COURT

A The application for an extension of time is granted.

B The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by French J)

Introduction

Mr Waitokia was convicted of murder following a jury trial in the High Court. He was sentenced by the trial judge Mander J to life imprisonment and a non-parole period of 11 and a half years’ imprisonment.[1]
[1]R v Waitokia [2017] NZHC 178.
He now appeals his conviction. The appeal was filed out of time. Although the delay was considerable, there is a reasonable explanation and the Crown does not oppose an extension of time being granted. We so order.

Background

On 1 August 2015 Mr Waitokia attacked an elderly man by the name of Harold Richardson with a bottle. The attack took place in Mr Richardson’s home which Mr Waitokia, who was aged 16, had visited before. Mr Waitokia struck Mr Richardson 14 times with the bottle causing grievous and fatal head injuries including a stab wound to his head. Before leaving the house, Mr Waitokia took electrical equipment and alcohol. Mr Richardson was found the following day lying dead on the floor of his lounge.
At trial the defence argued Mr Waitokia was only guilty of manslaughter and did not have the necessary intent required to be guilty of murder.
In support of its contention that Mr Waitokia had murderous intent, the Crown relied on the following evidence:
(a)The number and intensity of the blows inflicted.
(b)The nature of the injuries suffered by Mr Richardson which it was said were typical of a bottle having been applied with great force to the scalp.
(c)The presence of blood on the edges of the broken glass of the bottle indicating Mr Waitokia had continued to use the bottle after it had broken.
(d)The presence of Mr Richardson’s blood on Mr Waitokia’s shoes suggesting he had also kicked him in addition to the assault with the bottle.[2]
(e)Accounts given by various witnesses about Mr Waitokia’s conduct both before he went to Mr Richardson’s house and afterwards. This included testimony from an acquaintance of Mr Waitokia, a Mr Stevenson.
[2]The evidence was that the DNA profile obtained provided “extremely strong scientific support” that the blood came from Mr Richardson.
Mr Stevenson gave evidence that Mr Waitokia told him that he was “going to go kill Harry, I’m going to go get him”. He said Mr Waitokia also talked about cracking a safe he thought Mr Richardson had in his house and that he asked Mr Stevenson for gloves or socks for his hands. Mr Stevenson further stated that after returning…

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 Waitokia v The Queen

Details

AGLC: Waitokia v The Queen [2018] NZCA 198
Case: [2018] NZCA 198
Decision Date: 18 June 2018 at 10 am

CaseChat Overview and Summary

In the case of Waitokia v The Queen, the appellant, Mr Waitokia, challenged his conviction on the grounds that the trial judge failed to give a warning to the jury about the potential unreliability of the evidence provided by Mr Stevenson, a key witness. The evidence at issue was central to the conviction, and the appellant argued that the trial judge should have exercised their discretion under section 122 to warn the jury of the need for caution in accepting and weighing this evidence. The crux of the appeal was whether the trial judge had a duty to issue a warning under section 122 and, if so, whether the failure to do so was a ground for setting aside the conviction.

The court was tasked with interpreting section 122 and determining the circumstances under which a trial judge must give a warning to the jury about potentially unreliable evidence. The appellant's counsel argued that the trial judge should have issued a warning about Mr Stevenson's evidence, given its critical importance and the apparent unreliability due to factors such as his consumption of alcohol and drugs, inconsistencies in his testimony, and the risk of his recall being influenced by others. The court considered the discretionary nature of the warning under section 122, the necessity for such a warning in this case, and the distinction from previous cases where warnings had been deemed necessary.

The court found that the trial judge had discretion under section 122 to warn the jury about unreliable evidence, but this discretion was not absolute. The court held that the trial judge had adequately highlighted the issues with Mr Stevenson's evidence during their summing up, effectively drawing the jury's attention to the potential unreliability of the witness's testimony. The judge's detailed comments and quotations from the cross-examination and closing arguments made it clear to the jury that they needed to be cautious in considering Mr Stevenson's evidence. The court concluded that the trial judge's extensive comments served the same purpose as a formal warning under section 122, and thus, there was no error in the trial judge's handling of the evidence.

The appeal was dismissed, and the conviction was upheld. The court determined that the trial judge's extensive commentary on the reliability of Mr Stevenson's evidence adequately informed the jury, making a formal warning under section 122 unnecessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 122 relevantly provides:122 Judicial directions about evidence which may be unreliable(1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.…(3)In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—(a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.(4)It is not necessary for a Judge to use a particular form of words in giving the warning.… On appeal, Ms Kincade emphasised that Mr Stevenson’s evidence was of critical importance. She acknowledged that under s 122 the Judge had a discretion, but submitted that this was a case where the discretion should have been exercised in favour of giving a warning. In support of that contention, she relied on the decision of this Court in Bruce v R where an inadequate warning led to the conviction being quashed and a retrial ordered.[5][5]Bruce v R [2015] NZCA 332, (2015) 28 CRNZ 150. Each case must of course turn on its facts and in our view Bruce is distinguishable. Concerns about the content of the warning in that case were in the very different context of the trial Judge having refused to admit expert evidence about memory and a complainant who was so intoxicated she could not remember 60 per cent of what happened.[6][6]At [24]–[25]. In this case, matters which impacted on Mr Stevenson’s reliability — such as his age, his consumption of alcohol and drugs, his vagueness on some detail, various inconsistencies and assumptions as well as the risk of his recall being contaminated by what others told him — were all self-evident and highlighted by Mr Eaton both in a strong cross-examination and closing. Even more importantly they were the subject of detailed comment by Mander J in his summing up. The Judge devoted some 13 paragraphs to Mr Stevenson’s evidence and the criticisms that had been made of it quoting large extracts predominantly from Mr Eaton’s cross-examination. The Judge referred to the dispute between Crown and defence about how accurate and specific Mr Stevenson’s recollection was regarding the words spoken by Mr Waitokia and told the jury that they would “need to take care in [their] approach to that evidence because we know those witnesses were affected by alcohol and synthetic cannabis”. He repeated this in a later passage, directing the jury to “be very mindful, particularly in the context of witnesses who are drinking and taking drugs at the time, of how reliable they can be as witnesses to accurately recount what was said to them”. Later again, the Judge repeated the points regarding Mr Stevenson’s evidence that had been made by Mr Eaton in his closing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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