Walker-Oaariki v Police - [2020] NZCA 447

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA327/2020
[2020] NZCA 447

BETWEEN	ALAIN WALKER-OAARIKI Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Goddard, Ellis and Dunningham JJ
Counsel:	G H Vear and D J Taumihau for Applicant Z W Q Andrew for Respondent
Judgment: (On the papers)	23 September 2020 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against conviction is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Mr Walker-Oaariki applies for leave to bring a second appeal against conviction under s 237 of the Criminal Procedure Act 2011 (CPA). The application is brought on the ground that a risk of a miscarriage of justice arises because the High Court refused to set aside his guilty pleas on charges of strangulation and assault on a person in a family relationship.[1]

The statutory test

[1]Walker-Oaariki v Police [2020] NZHC 1087 [High Court judgment].

The threshold for leave to bring a second appeal is high.[2] Section 237(2) of the CPA prevents this Court from granting leave to bring a second appeal against conviction unless this Court is satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

Background facts

[2]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

Mr Walker-Oaariki was charged with strangulation[3] and assault on a person in a family relationship,[4] following a confrontation between him and his partner on 28 June 2019. The assault was witnessed by two independent persons. The charges were scheduled to be heard at a Judge-alone trial on 7 November 2019, with Mr Walker-Oaariki having been in custody since 29 June 2019.
[3]Crimes Act 1961, s 189A: maximum sentence of seven years’ imprisonment.
[4]Section 194A: maximum sentence of two years’ imprisonment.
On 7 November 2019, it transpired the Court was over-booked, and the trial had to be adjourned. That meant Mr Walker-Oaariki would spend further time remanded in custody until the new fixture date which was estimated to be in April the following year. Trial counsel, Mr Silich, said Mr Walker-Oaariki’s primary consideration was “the time he already had, and may yet have to spend in custody”. For this reason, a sentence indication was not discussed with Mr Walker-Oaariki as trial counsel considered that would lead to further delays, which Mr Walker-Oaariki wanted to avoid.
Having been advised that a potential end sentence of 14 to 18 months’ imprisonment was possible after factoring in a guilty plea discount, and after counsel negotiated some modest amendments in the summary of facts in Mr Walker-Oaariki’s favour, he entered guilty pleas to both charges that day. He was sentenced on 10 December 2019 to two years and two months’ imprisonment.[5]

The High Court decision

[5]Police v Walker-Oaariki [2019] NZDC 25028.

Mr Walker-Oaariki appealed his conviction and sentence to the High Court. He relied primarily on the failure…

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: [2020] NZCA 447
Decision Date: 23 September 2020 at 11.30 am

CaseChat Overview and Summary

Alain Walker-Oaariki appeals against a decision of the High Court which dismissed his appeal against conviction and sentence. Mr Walker-Oaariki was convicted of strangulation and assault on a person in a family relationship. The basis for the appeal is that there was a risk of a miscarriage of justice because the High Court did not set aside his guilty pleas. The Court of Appeal is required to determine whether the appeal involves a matter of general or public importance or whether a miscarriage of justice may have occurred. The Court held that the threshold for leave to bring a second appeal is high and the appeal does not meet the threshold. The Court found that the erroneous advice as to sentence length was not such that it would warrant setting aside the guilty pleas. The advice as to sentence length was unduly optimistic but did not go to the heart of the guilty pleas. There was no real risk of a miscarriage of justice. The application for leave to bring a second appeal against conviction is dismissed.

Orders