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Whiu v Police

Whiu v Police

Case [2024] NZHC 152 13 February 2024

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2023-463-81

[2024] NZHC 152

BETWEEN
BARNEY RONGIPIE WHIU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 February 2024

Appearances:

Appellant in Person

P Patanasiri for the Respondent

Judgment:

13 February 2024

JUDGMENT OF HARVEY J

[Appeal against conviction and sentence]

This judgment is delivered by me on 13 February 2024 at 4.00 pm.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Crown Solicitor, Rotorua

And to: the Appellant

WHIU v NEW ZEALAND POLICE [2024] NZHC 152 [13 February 2024]

Introduction

[1] Barney Whiu was found guilty of two charges of assault with a weapon,1 and assault on a person in a family relationship.2 The complainant is a close relative of the appellant. Mr Whiu was sentenced by Judge L Bidois in the District Court at Rotorua on 29 May 2023 to 18 months’ imprisonment for the assault with a weapon charges, and six months’ imprisonment for the assault charge, to be served concurrently.3

[2] Mr Whiu now appeals his convictions and sentence on the ground that he disputes the evidential basis of his conviction. He claims he was not responsible for the assault on the complainant and has been wrongfully convicted. Mr Whiu alleges that it was the complainant’s partner, whom I will call “F”, who is responsible for the assaults. The appellant, who is self-represented, has not filed new evidence in support of his appeal.

[3]The Crown opposes the appeal.

District Court decision

[4] After outlining the facts, which he accepted as having been proved beyond reasonable doubt, the Judge identified the primary issue as being whether the appellant had caused the injuries to the complainant or if someone else was responsible. He noted the general principle that the burden was on the Police to prove the allegations against Mr Whiu, and that the standard of proof was beyond a reasonable doubt.4 The Judge did not consider that there was a dispute over the identity of the complainant or that Mr Whiu and the complainant were in a family relationship. He also accepted that a chair had been used as a weapon.

[5] The Judge then highlighted how credibility was in issue, as Mr Whiu and the complainant disagreed on the facts. He underscored that the Court’s role was to assess the evidence of all witnesses before making a finding on credibility.5 The Judge noted

1      Crimes Act 1961, s 202C. Maximum penalty of five years’ imprisonment.
2      Section 194A. Maximum penalty of two years’ imprisonment.
3      Police v Whiu [2023] NZDC 11051.
4 At [6].
5 At [7].

the evidence that had been given and the process by which he would make his findings on the evidence:

[9] The police evidence came from the complainant, her son, photographs, a 111 call, and the officer in charge. In this case, the defendant elected to give evidence. His evidence goes into the pool of evidence that the Court has. There are three scenarios…

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 Whiu v Police

Details

AGLC: Whiu v Police [2024] NZHC 152
Case: [2024] NZHC 152
Decision Date: 13 February 2024

CaseChat Overview and Summary

The appeal in Whiu v Police [2024] NZHC 152 was heard by Harvey J, with the appellant, Barney Rongipie Whiu, challenging his convictions for assault with a weapon and assault on a person in a family relationship. The case was presided over by Judge L Bidois in the District Court, where Whiu was sentenced to 18 months' imprisonment for the assault with a weapon charges and six months' imprisonment for the assault charge, to be served concurrently. The appellant argued that he was wrongfully convicted and claimed that the complainant's partner was responsible for the assault. He further submitted that he had been falsely accused and sought compensation for false imprisonment. The Crown opposed the appeal.

The court considered the legal principles governing appeals against convictions and sentences, emphasising the need for the appellant to demonstrate an error by the trial Judge that led to a miscarriage of justice. The court highlighted the well-established approach to assessing credibility in contested oral evidence, noting the customary caution exercised by appellate courts.

The court found that the trial Judge was well placed to assess the credibility of the witnesses and had adequately considered the evidence. The Judge rejected the appellant's version of events, noting inconsistencies in the timeline provided by Whiu. The court upheld the Judge's findings that the complainant and her son's evidence was credible and dismissed the appellant's claims. The court found no error in the Judge's approach or the outcome reached and concluded that the sentence was well within the applicable range.

The appeal is dismissed.

Orders