Whiu v Police
[2024] NZHC 152
•13 February 2024
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 that can occur as a result of a defendant giving evidence. Firstly, I believe him on the essential issue, which is: “I didn't do these things to the complainant.” If that is the case, then I would find him not guilty. The second scenario is, having heard him, weighed that against all the other evidence, I do not know where the truth lies. If that is the case, I, again, find him not guilty. If, having heard him, weighed his account against all the other evidence, and I reject his account, I do not automatically lead to guilt. I go back to the rest of the evidence that I find reliable and assess and consider it. If I am satisfied to the standard of proof beyond reasonable doubt, I convict. If I am not, I acquit.
[6] The accepted facts were that the complainant had agreed to let the appellant stay in a cabin on her property for a period of time, following his release from prison. The appellant, the complainant and F had been socialising together from around 2.30 pm on 31 August 2022. All three were drinking. At some point, they moved inside the property and continued drinking. The Judge noted that, at this point, the parties’ accounts vary.
[7] The complainant said that Mr Whiu struck her twice in the face, causing her to fall to the ground. He picked up a chair and moved to bring it “down on her” , striking her arm which she had raised to block the blow. As he continued to grapple with the complainant, her son came into the kitchen area to intervene. The complainant’s partner then arrived and “forcefully removed the defendant from the house and beat him up outside, before he allowed the defendant to leave the property in his car.”6 The complainant said that this happened at around 11.30 pm on 31 August 2022.
[8] The Judge noted that the complainant was steadfast in asserting that the appellant was responsible for the injuries, not her partner. He considered it persuasive that the complainant had acknowledged that her partner was subject to a safety order at the time of the assault and had breached it by being at the address. The Judge did not accept that the complainant was attempting to blame the appellant in order to protect her partner, as she had contacted the police a few days previously to enforce
6 At [11].
the order and have him removed from the house. She did not attempt to conceal that F was in breach of the non-association condition at the time of the incident.
[9] The Judge also found the evidence given by the complainant’s son, who witnessed part of the incident, to be persuasive. The witness said that he saw the appellant standing over his mother with a chair, as though he was going to strike her. He said that he ran towards him, called his name, and attempted to stop him.
[10]The Judge then summarised the appellant’s evidence:7
The defendant gave evidence where he said he was sitting at the table and that he was then struck in the back with the chair by [F], knocked unconscious, dragged outside, and thrown into his vehicle, before he was permitted to leave. He thought this all happened around 7.30 in the evening.
He denied vigorously that he had assaulted [the complainant]. He denied punching her. He denied using a chair to strike her. He acknowledged that at the start of the evening the complainant had no injuries whatsoever, but accepts that there are injuries noted by police the next day. He accepts those are not self-inflicted. The only explanation he can provide is that it must have been [F] who did that, either deliberately or - if she had got in between them to try and protect him, that is, [the appellant] - she could have been accidentally struck by [F].
[11] The Judge rejected the appellant’s version of events, noting that his timeline was not consistent with the timing of the 111 call. This occurred at about midnight or early on 1 September 2022, as opposed to at 7.30 pm on 31 August 2022. He accepted that the “clear, unchallenged evidence” was that the call was made soon after the incident, which supported the complainant’s version of events.
[12] In addition, the Judge noted that the complainant had been consistent in her account. She denied that her partner was involved. Her account and demeanour were consistent throughout; in her initial EVI, when viewing the EVI, and when giving evidence. There were photos of the injuries sustained by the complainant that were consistent with her evidence. The Judge considered the complainant, and her son, to be credible. On the basis of their evidence, he was satisfied beyond reasonable doubt that the appellant had punched the complainant twice to the face and that they were in
7 At [14]–[15].
a family relationship. He held that the assault on a person in a family relationship was proved.
[13] Further, the Judge also found that the charge of assault with a weapon was proved beyond reasonable doubt. He accepted that the appellant picked up the chair, as described by the witness and complainant. He considered that the complainant’s injuries were consistent with bracing the blow and was satisfied that the appellant had hit her with the chair at least once.
[14] The Judge then handed down the appellant’s sentence of 18 months’ imprisonment on the lead charge and a concurrent sentence of six months’ imprisonment on the assault charge. He noted that the complainant was vulnerable when she was hit by the chair (having fallen to the ground after being punched), and that the incident occurred in her home, where she was entitled to feel safe. The Judge acknowledged that the appellant had been beaten by the complainant’s partner and that he had factored that into his assessment. He did not otherwise consider that there were any mitigating features warranting a reduction in sentence.
Approach on appeal
[15] An appeal against conviction is governed by s 229 of the Criminal Procedure Act 2011, which provides that a person who has been convicted of an offence may appeal to the first appeal court. Section 232 is also relevant.
[16] Where a Judge sitting alone is alleged to have erred in their assessment of the evidence, Austin, Nichols & Co Inc v Stichting Lodestar8 sets out the relevant approach for civil appeals conducted by way of rehearing.9 Under that approach:10
If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But … [s]ince it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this,
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 (Austin, Nichols).
9 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
10 At [38] (footnote omitted).
where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”.
[17] In light of the s 232(2)(b) requirement of error in assessing the evidence “to such an extent that a miscarriage of justice has occurred”, the error must be one which in terms of s 232(4) “has created a real risk that the outcome of the trial was affected”. On that basis, the “different view of the evidence” described in Austin, Nichols is one that gives rise to such risk. A real risk arises if there is a reasonable possibility another verdict would have been reached.11 The court may exercise its discretion to dismiss an otherwise successful conviction appeal if it assesses the evidence and concludes that a finding of guilt was inevitable.12
[18] In addition, this Court’s approach to sentence appeals is well-settled. The appeal must be allowed if the Court is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.13 The sentence below must be shown to be manifestly excessive or wrong in principle.14
Submissions
[19] Mr Whiu, who is self-represented, provided annotated copies of the judgment on appeal, notes from the police callout, and a transcript of the 111 call. His notice of appeal records that he has been “falsely accused” and convicted of assault. Mr Whiu’s various annotations similarly state that the complainant or, more frequently, F, had lied about the appellant being responsible for the assaults. The appellant argued that F remained at the kitchen table throughout the evening, rather than having left to settle the children or sleep as the other evidence states. In one annotation Mr Whiu records:
I’d like to let [it] be known now, I was not at this address when the 111 call was made, by you [the complainant], I was out of the house about 5 hours earlier 7:30 [pm] at the latest… The 111 call was made and orchestrated and fully controlled by [F] getting [the complainant] and there [sic] son to lie, even to the point of his not been a[t] the premises, as you will find out…
11 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1; Misa v R [2019] NZSC 134, [2020] 1 NZLR 85;
and Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189.
12 Sweeney v Police [2020] NZHC 803, citing R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145.
13 Criminal Procedure Act 2011, s 250(2).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
[20] Mr Whiu maintained that his timeline of the incident in which F assaulted him and removed him from the house at around 7.30 pm. He implied that the assault on the complainant occurred in the intervening period and that the 111 call was then made to frame him for the assault, but that he was not present at the time.
[21] In addition, Mr Whiu submitted that it was inconceivable that he could assault the complainant in the manner alleged. He also claimed that sometime after the incident, he chanced upon the complainant in Rotorua and they both drank wine later that afternoon. This, according to Mr Whiu, was a clear confirmation that she did not consider him responsible — why would she meet with him, by chance or otherwise, if he had previously assaulted her as claimed?
[22] Further, Mr Whiu contended that his family in Christchurch were also astonished at the claims that he had assaulted the complainant in Rotorua. Mr Whiu then submitted that he was entitled to $10,000 “compensation” for “false imprisonment” on the basis that he did not commit the assault. I note Mr Whiu made several allegations concerning F and the reasons why he was not permitted at the property in question.
[23] For completeness, I further note Mr Whiu’s submissions concerning trial counsel inadequacies where he claimed that his then counsel was ineffective, did not permit him the opportunity to tell his side of the story, and was largely disengaged from the trial. Mr Whiu made no reference to his sentence and appeared only to challenge his conviction on this evidential basis.
[24] Mr Patanasiri, for the respondent, opposed the appeal against conviction on the basis that the Judge did not err in finding the appellant guilty on the evidence before him, and submitted that there was no error in the sentence imposed. Counsel contended that the case “primarily turned on credibility” and considered that the Judge adequately assessed all of the available evidence and that it was open for him to find that the appellant had committed the offences on that evidence.
Discussion
[25] The trial Judge was well placed to assess the evidence. He was able to consider first-hand the witnesses, their testimony and demeanour. The trial depended largely on an assessment by the Judge of credibility. In Taiatini v Police, this Court said that:15
Where credibility is in issue, the presiding Judge should ordinarily give reasons for rejecting the evidence of a witness whose evidence is material to the outcome … The extent of reasoning required will vary between cases, but the reasons given should be ‘adequate to the occasion’ … It must not be overlooked that Judges, in particular District Court Judges operate under time constraints and in circumstances which usually require oral decisions to be given at the conclusion of the evidence … Further, there are difficulties in articulating reasons for a credibility finding ‘which is based principally upon an exercise in judgment borne of experience, knowledge of human behaviour, and the evaluative process’. … Nevertheless, as Randerson J said in Takarei at [14]:
‘ … some brief reasons for rejecting the evidence of a key witness should be given.’
[26]The Judge outlined his approach, as approved in R v McI,16 as follows:17
There are three scenarios that can occur as a result of a defendant giving evidence. Firstly, I believe him on the essential issue, which is: “I didn’t do these things to the complainant.” If that is the case, then I would find him not guilty. The second scenario is, having heard him, weighed that against all the other evidence, I do not know where the truth lies. If that is the case, I, again, find him not guilty. If, having heard him, weighed his account against all the other evidence, and I reject his account, I do not automatically lead to guilt. I go back to the rest of the evidence that I find reliable and assess and consider it. If I am satisfied to the standard of proof beyond reasonable doubt, I convict. If I am not, I acquit.
[27] He rejected the appellant’s account when it was in conflict with the evidence given by the prosecution witnesses. The first conflict concerned the time at which the incident occurred. Mr Whiu was adamant that he had left the property, having been dragged out by F and beaten, at 7.30 pm:
Mr Whiu:[F] never left the room, as long as we were in that kitchen, he was always in there –
Mr Te Are: So you’re saying your A is lying?
Mr Whiu:Hey, yeah, well, his father was in there all the time and his father isn't gonna go to sleep before 7.30, 'cos that's the time I left that place, seven thirty.
15 Taiatini v Police HC Rotorua CIV-2005-463-59, 7 October 2005 at [12] (citations omitted).
16 R v McI [1998] 1 NZLR 696 (CA) at 708, affirmed in R v MacDonald [2009] NZCA 428 at [2].
17 R v Whiu, above n 3, at [9].
[28]The Judge addressed the appellant on this issue specifically, saying:
The Court: Yes, so do you think this all happened round 7.30? Mr Whiu: Well, I left at 7.30. We went in at 6.30.
The Court: Yes.
MrWhiu: I'm not even half an hour inside and I was banged over the head and knocked out (inaudible).
The Court: Yes, and so by 7.30 you were off the property? Mr Whiu: 7.30 — oh, he dragged me to my car.
The Court: Yes.
MrWhiu: Told me, yeah, and I, I was gone, I didn’t know where to, (inaudible) three or four (inaudible) up the road.
[29]The complainant placed the time of the incident much later than Mr Whiu:
Mr Te Are: So in terms of the timeframe we talk about when you were drinking at the table before the attack, or about the time of the attack, what time of the night do you estimate it was at that time? 10
Complainant: About 11.30.
[30] The complainant’s son, who I will refer to as “A”, did not give evidence on the time of the assault. The 111 call, however, was made around midnight. The complainant and A said that the assault occurred shortly before the call was made. Mr Whiu did not refute this, as he claimed to have not been at the address when it occurred, having left earlier in the evening. On the basis that the “clear, unchallenged evidence” indicated that the call was made soon after the incident, the Judge concluded that the incident occurred closer to midnight.
[31] The Judge then considered the evidence given by the complainant. He acknowledged that she was not able to provide a logical explanation for the attack, but emphasised that she was certain that the appellant was responsible:
Mr Te Are: And do you, because you first said that it was, he’s hit you out of the blue and I don’t know why he’s hit you and the conversation you’re talking about was that about yourself and him, or yourself and [F], or something other?
Complainant: I just said that I wanted to go to bed 'cos I was tired and then, yeah it just 15 set him off. I think, yeah, a bit of a jealousy thing there with [F] and me you know, it’s hard to explain but it’s a jealousy thing that he’s kind of like my, I’m like [his] missus, like I’m Barney’s girlfriend but I’m [family], you know, so it was kind of like “oh you can’t go to bed with him, you gotta stay up with me” kinda thing. And I’m assuming that’s probably what set him off 'cos it, it happened after I told him I was gonna go to bed, was tired.
…
Mr Te Are: And you’re alleging that my client sitting on that chair had hit you twice with, in your head —
Complainant: In my eye too.
Mr Te Are: Making you fall into, backwards?
Complainant: Yeah, he punched me twice in the fa — in the eye and once in the mouth, yes.
Mr Te Are: In the eye? Complainant: Yes.
Mr Te Are: And then you’re also alleging that you fell off your chair and you’re on the ground and he’s picked up your chair to assault you?
Complainant: Yes.
…
Mr Te Are: So you’re saying you fell that way?
Complainant: Yeah, and then, um, Barney pulled my arm underneath and just started dragging me around the, around the small area, and then – it’s hard to explain but, um, when, after he dragged me around in the kitchen my feet were facing towards the window and that’s when he come over the top with the chair, but from behind, so I had my arms up like this.
Mr Te Are: So in terms of how you’ve described what he’s done there’s some – you’re saying he’s dragged you around, he’s picked up a chair and then you’ve defended himself again?
Complainant: Yeah.
[32] When the complainant was questioned as to whether F was responsible for the assault, she denied emphatically, rejecting any suggestion that she had “fabricated” the story by replying, “That’s not true. That is, that is absolutely not true.”
[33] A’s account also placed Mr Whiu in the kitchen and corroborated the complainant’s evidence. He said:
A:I was in my room, it’s kind-of far to the end of the house. I was playing my game and I heard some loud banging and I came out and, I was like down the hallway you can see straight into the kitchen and Barney was standing over my mum.
…
A:And I didn’t really know what he was doing at first but when I got closer, he — it looked like he was picking up a chair and about to smash it on my mum.
[34]He denied that F was responsible for the attack in strong terms:
Sergeant Murphy: Now when they were yelling at you, oh, now it might
be put to you [A] that was in fact your father was the person that was assaulting your mum?
A: No, not at all.
Sergeant Murphy: Not at all? A: Not at all.
[35] The issue for this Court is whether the Judge erred in determining that the complainant and her son’s evidence was credible, and in dismissing the appellant’s evidence as not credible. As noted, the appellant’s case at trial was the same as on appeal — that he was not responsible for the assaults and that it was F. This assertion was linked to the claims that:
1.F did not leave the kitchen table after Mr Whiu, the complainant, and himself came inside at around 6.30 pm;
2.At around 7 or 7.30 pm, F attacked Mr Whiu with a chair while they were sitting at the kitchen table, knocking him unconscious and dragging him outside to his car; and
3.The assault on the complainant occurred sometime between Mr Whiu having left the property in his car at approximately 7.30 pm and the 111 call at just before midnight.
[36] I find nothing in the appellant’s submissions before me that calls into serious question the testimony of the complainant and her son. To reiterate, the trial Judge was well placed to assess the credibility of the witnesses. He concluded that they were credible when contrasted with the evidence of the appellant. The trial transcript supports the rationale for the Judge’s approach and does not support Mr Whiu’s narrative of the events.
[37] As I have not found any error in either the Judge’s approach or the outcome he reached, it is unnecessary to consider the second stage of the test.
[38] In addition, and as foreshadowed, Mr Whiu made no submissions specifically on the sentence he received, apart from what I can only infer was his opposition to the conviction and therefore to any sentence that had been imposed. Even if he had made cogent submissions on the sentence, my conclusion is that what the Judge imposed was well within the applicable range. There is therefore no question of the sentence being manifestly excessive.
[39] Finally, as to Mr Whiu’s claim regarding “compensation” for what he referred during the hearing as “false imprisonment”, there is no basis for such a claim and accordingly it cannot sensibly be taken any further in this appeal.
Decision
[40]The appeal is dismissed.
Harvey J
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