Wirihana v The King - [2025] NZCA 408

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA807/2024
[2025] NZCA 408

BETWEEN	MAIORA WIRIHANA Appellant
AND	THE KING Respondent

Hearing:	29 July 2025
Court:	French P, Jagose and Gault JJ
Counsel:	X Wang and G A R W Warwick for Appellant M H Cooke for Respondent
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…

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: [2025] NZCA 408
Decision Date: 18 August 2025 at 12.30 pm

CaseChat Overview and Summary

Maiora Wirihana has appealed both his conviction and sentence for burglary. The appeal against conviction is predicated on two contentions: the trial Judge failed to give a warning to the jury regarding visual identification, and failed to clarify the defence case, resulting in an inadequate summing up. In relation to the first ground, the Court found that the case against Mr Wirihana did not depend substantially on the visual identification evidence, so no identification warning was required. The Court also found that the complainant's unequivocal identification of Mr Wirihana was not an unintended dock identification, so no further direction was necessary. Concerning the second ground, the Court found no error in the Judge's summing up of the defence case, noting that the Judge had directed the jury to consider whether there was doubt about the identification of the person in the house. The appeal against sentence was based on the argument that the sentence was manifestly excessive. The Court found that the sentence was within an appropriate range, given the seriousness of the offending and Mr Wirihana's extensive criminal history.

The appeal against conviction was dismissed. The appeal against sentence was dismissed. The Court made no further orders.

Orders