Wirihana v The King
[2025] NZCA 408
•18 August 2025 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA807/2024 |
| BETWEEN | MAIORA WIRIHANA |
| AND | THE KING |
| Hearing: | 29 July 2025 |
Court: | French P, Jagose and Gault JJ |
Counsel: | X Wang and G A R W Warwick for Appellant |
Judgment: | 18 August 2025 at 12.30 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French P)
Introduction
Mr Wirihana was convicted of burglary following a jury trial. He had opted to represent himself at the trial and declined the assistance of standby counsel.
The trial Judge, Judge T R Ingram, sentenced him to a term of imprisonment of two years and one month.[1]
[1]R v Wirihana [2024] NZDC 28280 [sentencing notes].
Mr Wirihana now appeals both his conviction and the sentence.
Appeal against conviction
The appeal against conviction is based on two alleged failures on the part of the Judge:
(a)failing to give the jury a warning regarding visual identification; and
(b)failing to clarify the defence case, with the result he was not able to summarise it to the jury.
We now turn to address each ground.
Should the Judge have given a direction regarding visual identification?
The evidence at trial
The Crown called evidence from the complainant and two police officers. Their evidence was to the following effect.
On returning to his home at around 11.50 pm one night in early May 2024, the complainant noticed lights were on in the kitchen and living room. He also noticed a pile of his household goods sitting on the front lawn. He walked back onto the street and observed an unknown man standing in the kitchen by the fridge.
The complainant immediately telephoned the police. He waited across the road from the house for them to arrive. As he waited, he kept an eye on the man. He did not see anyone leave the house before the police arrived which they did at 11.57 pm. There were two officers.
One officer went to the front entrance, while the other went to the back entrance with the complainant. At that point, the lights in the house suddenly went off. The complainant then saw someone exit out of the back window of the house and run to the back lawn. The police gave chase. Seeing the man run in the direction of the front gate, the complainant ran to the front of the house and saw the man jump a hedge row into a neighbouring property. The complainant followed and the man was apprehended first by the complainant and then the two officers. The man arrested identified himself as Mr Wirihana. When asked by the police why he was at the address, he replied that he went into the house to “get a quick fix” but instead had got handcuffed. He also told police that he had been with three others. Neither the officers nor the complainant had seen any other person.
Mr Wirihana did not give evidence. Nor did he call evidence.
Finally, we note that prior to trial the Crown had applied for permission to adduce propensity evidence of Mr Wirihana’s previous convictions for burglary. However, Mr Wirihana, with the assistance of standby counsel, successfully defended that application.[2] Significantly for present purposes during the pre-trial hearing, the presiding judge, Judge T V Clark, stood the matter down so that standby counsel could confer with Mr Wirihana about the likely issue for trial. The Judge was subsequently told that the likely trial issue was identification.[3] That was critical to her decision excluding the propensity evidence.[4]
Arguments on appeal
[2]R v Wirihana [2024] NZDC 23251.
[3]At [12].
[4]At [17]–[18]. The Judge was satisfied that because of differences between the index burglary and the earlier burglaries, the probative value of the latter in relation to the issue of identification was weak and outweighed by the unfairly prejudicial effect.
Mr Wirihana was represented on appeal by counsel Mr Wang and Ms Warwick. Their written submissions described Mr Wirihana’s conduct of the trial as “woeful” and also stated that although his defence was to dispute identity, that was not immediately obvious.
As to whether the Judge should have given an identification direction, Ms Warwick contended that the evidence of the three Crown witnesses was visual identification evidence within the meaning of the Evidence Act 2006 and therefore the mandatory identification direction required under s 126 of that Act should have been given.
Our view
“Visual identification” is defined in the Evidence Act as being:
visual identification evidence means evidence that is—
(a)an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
(b)an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)
We accept Ms Warwick’s submission that the evidence of the complainant and the two police officers falls within that definition. However, the s 126 obligation to give an identification warning is only triggered if “the case against the defendant depends wholly or substantially on the correctness of 1 or more visual … identifications of the defendant”.[5] In our view, the case against Mr Wirihana was not such a case. It was a case where the eyewitnesses did not lose sight of the man exiting the house before he was apprehended, a man who both identified himself as Mr Wirihana and who also admitted having been in the house for an unauthorised purpose. The evidence he had made those admissions was not contested.
[5]Evidence Act 2006, s 126(1).
Ms Warwick sought to resist this analysis by reference to a back-up argument arising from what she described as an unintended dock identification made by the complainant under cross-examination. During cross-examination, Mr Wirihana had asked the complainant whether he was “sure … that the person [he saw] from the street is me”. The complainant’s answer was that he was “100 per cent” sure.
As noted by Ms Warwick, this Court held in Dey v R that if an unintended dock identification occurs, the Judge must give a properly tailored direction to the jury in terms of s 126.[6] That ruling was consistent with earlier authorities (including decisions that predate the Evidence Act) that courts should be wary of accepting dock identifications because of their limited probative value and potential for unfair prejudice.[7]
[6]Deyv R [2021] NZCA 342 at [31].
[7]See Ake v R [2015] NZCA 334 at [10]; and Young v R [2009] NZCA 453 at [29]–[30].
In our view however, the circumstances of this case are very different from Dey.
In particular, contrary to a submission made by Ms Warwick, we do not accept that what happened here was an unintended dock identification. Ms Warwick suggested it came within the category of unintended identifications because the question contained the personal pronoun “me” instead of “the defendant”. In our view, in circumstances where the questioner and the complainant knew the questioner was the defendant, it must be immaterial whether the words “the defendant” or “me” were used. What matters is that the identification was directly solicited by the question.
This stands in stark contrast with both Dey and Ake v R (the decision relied on in Dey). In Ake for example a witness gave an unanticipated dock identification in response to questions concerned with visibility at the time of the incident.[8] Further, in neither case was there uncontested evidence of an admission by the defendant that he was the person at the scene and that he had gone inside the house.
[8]Ake v R, above n 7, at [3].
In our view, in the particular circumstances of this case, the Judge was not obligated to give an identification warning about the complainant’s answer of being “100 per cent” sure he saw Mr Wirihana.
We conclude that this ground of appeal is not sustainable and turn to address the second ground of appeal.
Did the Judge fail to clarify the defence and sum up the defence position accurately?
Mr Wirihana’s closing address consisted of the following submission:
Members of the jury, in conclusion to my summary of facts there are the time line of event discrepancies. The description of how many offenders or offender in the home discrepancies and there are inconsistencies in the [witnesses’] statements.
How can it be determined that I, the accused, committed the burglary when there are so many discrepancies throughout the whole case. Let’s not forget members of the jury, that there has been no evidence of my DNA, fingerprints or video footage that places myself at the burglary.
Thank you.
The reference in the first paragraph to a summary of facts is a reference to the police summary of facts, aspects of which were inconsistent with the trial evidence. During the trial, the Judge had explained to Mr Wirihana that the police summary of facts was not in evidence and was not something he could rely on.
On appeal, Mr Wang argued that “it has to be accepted that Mr Wirihana’s closing address did not squarely set out the defence” position. Mr Wang further contended that this was mirrored in the Judge’s summing up where, after summing up the prosecution case as being Mr Wirihana caught “red-handed”, the Judge made the following statement:
[52] The defence case is, well, no, there’s enough discrepancy in the statements and the evidence of the police officers for you to have some doubt about what happened here, and the defendant should therefore be entitled to an acquittal on the basis of a reasonable doubt.
The criticism made of the Judge is that it is implicit in a trial judge’s obligations to a self-represented litigant that the judge understands what the defence case is.[9] That obligation, it is submitted, may if necessary require a judge to enquire directly of the defendant. The Judge did not do that in this case and as a result he did not understand the defence case and was therefore unable to sum it up appropriately.
[9]As set out in Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [50], those obligations are to explain the rights to legal representation and aid, satisfy itself the defendant fully understands those rights, and provide the defendant an opportunity to exercise them; explain the trial process and the rights that it affords the defendant; explain the rules of evidence; intervene as necessary to ensure overall fairness to each side, which may include offering the defendant a degree of guidance; and to put to the jury any defence available in law, whether or not the defendant has advanced it.
We do not accept this is a fair criticism. It is noteworthy that Mr Wang did not suggest what Mr Wirihana would have told the Judge, had the latter made those inquiries. The criticism also ignores other passages in what was a relatively concise summing up.
In a passage before the one quoted by Mr Wang in his written submissions, the Judge had told the jury that it was “at least implicit in what Mr Wirihana has asked of the witnesses and some of the things that he said to you that there might be some issue over identification”. The Judge then traversed some of the evidence about the events at the house on the night in question.
Importantly in relation to the evidence of Mr Wirihana’s statements to the police, the Judge pointed out that the statements had not been given on oath nor tested by cross-examination. He further directed the jury that the view they took of the statements was for them to decide, expressly including in the list of possible interpretations that the jury might not regard the statements as identifying Mr Wirihana as having been there. The Judge’s exposition ended with a further direction that if the jury considered there was doubt about the identification of the person in the house, then clearly Mr Wirihana would be entitled to the benefit of any doubt they might have.
We are not persuaded that the Judge’s failure to confer with Mr Wirihana was a breach of the Judge’s obligations to a self-represented litigant, nor did it result in an unfair trial or create the risk of a possible miscarriage of justice.[10]
[10]Criminal Procedure Act 2011, s 232(2).
We would add that some of the submissions made on behalf of Mr Wirihana went beyond the two specific grounds of appeal and appeared to advance a general proposition that because Mr Wirihana’s conduct of the defence was “woeful” that meant the trial was in itself unfair and the conviction should be quashed.
We accept that in principle a defendant who makes an informed decision to represent themselves is not automatically precluded from establishing on appeal that the defence could not have been put adequately without counsel’s assistance and that in consequence a real possibility of acquittal was lost.
The onus however is on the appellant and we are not persuaded that the present case is one where that onus has been discharged. As Mr Wang acknowledged, Mr Wirihana was not denied a reasonable opportunity of legal representation. He was well aware of his right to legal aid and legal representation and had been given written advice regarding this in a court minute. He was also familiar with trial processes having successfully represented himself at an earlier jury trial. His previous experience at self-representation was said to have been “obvious” at the trial.[11] In addition, before the trial commenced, the trial Judge had provided Mr Wirihana with a ten-page memorandum containing detailed information on the trial process including the rules of evidence.
[11]Sentencing notes, above n 1, at [3].
It is clear too from the trial record that during the trial the Judge intervened at appropriate times to assist Mr Wirihana in a way that was helpful but at the same time consistent with the judicial duty to maintain the appearance of neutrality.
Further, as already noted, Mr Wirihana had had the benefit of talking to a lawyer about his defence prior to trial, so this was not a situation of a defence being available that would not necessarily have been apparent to a layperson. Mr Wang sought to negate that point by suggesting that in order for the identification defence to succeed in this case, Mr Wirihana needed to have given evidence but without the benefit of legal advice, had made the wrong election. That argument was not accompanied however by an affidavit from Mr Wirihana setting out the evidence he would have given. In the absence of such an affidavit, we do not consider this a particularly compelling point.
There must, as was stated by this Court in Cant v R and reiterated in Fahey v R, “be a realistic limit to the extent to which courts are required to protect defendants from the consequences of their own decisions”.[12] Here, the Crown case was very strong and, although competent legal counsel would have conducted the defence more skilfully than Mr Wirihana, that in itself is not enough.[13]
[12]Cant v R [2013] NZCA 513 at [26]; and Fahey v R, above n 9, at [48(c)].
[13]Fahey v R, above n 9, at [48(b)] citing R v Chatha [2008] NZCA 547 at [123]–[124].
For all these reasons, the appeal against conviction is accordingly dismissed.
The appeal against sentence
Arguments on appeal
In sentencing Mr Wirihana, the Judge did not follow the standard two-step methodology. He arrived at the end sentence of two years and one month after traversing the facts of the case and Mr Wirihana’s extensive criminal history.[14]
[14]Sentencing notes, above n 1, at [7].
In challenging that sentence, Mr Wang acknowledged that the focus on appeal is the end sentence rather than the methodology.[15] However, in endeavouring to demonstrate that the end sentence was manifestly excessive, his submissions adopted the two-step framework. Mr Wang contended that in a case where no property was actually taken, a starting point in the vicinity of 20 months’ imprisonment would have been appropriate. That was consistent, he argued, with the decisions of Gorgus v R and Stepanicic v R where this Court endorsed starting points of two years for more serious offending.[16]
[15]Criminal Procedure Act, s 250. See also Dellaway v R [2010] NZCA 100 at [22].
[16]Gorgus v R [2016] NZCA 508 at [10]; and Stepanicic v R [2015] NZCA 211 at [9].
In terms of mitigating personal factors, Mr Wang accepted that no discount for personal mitigating factors would have been available given that Mr Wirihana had defended the charges and waived his right to a pre-sentence report. Mr Wang also accepted that there would appropriately be an uplift of two to three months for Mr Wirihana’s previous convictions.
Adopting Mr Wang’s analysis would result in an end sentence in the vicinity of 22 to 23 months’ imprisonment, some two to three months less than the sentence imposed by the Judge. Mr Wang acknowledged that in some circumstances that might be viewed as tinkering but it was an important difference because it was said to represent the difference between a short term of imprisonment and one which puts Mr Wirihana in the realm of the Parole Board.
Our view
We are not persuaded that appellate intervention is warranted.
As submitted by Ms Cooke for the Crown, this was a night time invasion of a domestic dwelling with a high risk of encountering the occupants. Further, the only reason nothing was taken was because Mr Wirihana was apprehended at the scene after removing items from the house to take away.
This Court has previously stated in the decision of Arahanga v R that a starting point of between 18 months and two and a half years is ordinarily justified for a burglary of a dwelling house at the relatively minor end of the scale.[17] In light of that and Mr Wirihana’s 52 convictions for burglary dating back 30 years,[18] we consider that an end sentence of 25 months was well within range.
[17]Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
[18]As well as 47 additional dishonesty, theft, or burglary-related convictions.
The appeal against sentence is accordingly dismissed.
Outcome
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent