Witehira v The Queen - [2016] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

CA751/2013
[2016] NZCA 123

BETWEEN	ROBERT WILLIAM WITEHIRA Appellant
AND	THE QUEEN Respondent

Hearing:	9 February 2016
Court:	Miller, Fogarty and Toogood J
Counsel:	G R Boot for Appellant P K Hamlin for Respondent
Judgment:	14 April 2016 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed.
BThe conviction of assault using a motor vehicle as a weapon is quashed and no retrial is directed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J)

Introduction

On 10 September 2013 Mr Witehira was found guilty by a jury in the Hamilton District Court on one representative charge of assaulting Sarah Hunter, a former partner, using a motor vehicle as a weapon. Judge Connell sentenced him to nine months’ supervision and 80 hours’ community work.[1] Mr Witehira appeals against both his conviction and sentence.
[1]R v Witehira DC Hamilton CRI-2010-019-8267, 30 October 2013 [Sentencing notes].
The essential ground for the conviction appeal is that Mr Witehira’s trial counsel (not Mr Boot) conducted the trial on the basis of an incorrect view of the law, which affected decisions about the cross-examination of Ms Hunter, and whether Mr Witehira should give evidence. It is argued that the fundamental error in counsel’s approach had the effect of depriving Mr Witehira of a proper defence and led to a miscarriage of justice.
As to sentence, Mr Witehira says that the Judge failed to give proper recognition to the fact that he had spent 40 days in custody and a period of some five months on electronically monitored bail, prior to trial. It is said that the discount given by the Judge on sentencing was inadequate to recognise these serious restrictions on his liberty prior to trial.

The Crown’s approach to the charge

The indictment charged that:
ROBERT WILLIAM WITEHIRA on the 6^th day of October 2010 at Hamilton assaulted Sarah Hunter using a motor vehicle as a weapon.
Representative charge.
Particulars: On various occasions the accused rammed the car the complainant was travelling in.
Opening the case for the Crown, Mr Cornegé described what he understood the complainant’s evidence would be. He said:
Now on 6 October 2010 the complainant Ms Hunter left her home in Taupiri and was driving towards Hamilton and she left at about 10.50 am that morning and she was driving a BMW and in the car were her daughter Zoe, who was in the front passenger seat and her son Lucius, who was in the rear. Now as they were coming out of Gordonton, the complainant Ms Hunter saw a vehicle driven by the accused driving in the opposite direction and she could see that the accused was the driver and also recognised the vehicle, it being a green Nissan and it had some distinctive modifications to it and she continued about five kilometres up the road heading in towards Hamilton at which point the accused’s vehicle, which had clearly turned around and caught up with…

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 Witehira v The Queen

Details

AGLC: Witehira v The Queen [2016] NZCA 123
Case: [2016] NZCA 123
Decision Date: 14 April 2016 at 10.00 am

CaseChat Overview and Summary

Witehira v The Queen was an appeal against both conviction and sentence. The appellant, Mr Witehira, was found guilty by a jury in the Hamilton District Court of assaulting Sarah Hunter, his former partner, using a motor vehicle as a weapon. Mr Witehira appealed against both his conviction and sentence. The essential ground for the conviction appeal was that his trial counsel adopted the trial on the basis of an incorrect view of the law, which affected decisions about the cross-examination of Ms Hunter, and whether Mr Witehira should give evidence. It was argued that the fundamental error in counsel’s approach had the effect of depriving Mr Witehira of a proper defence and led to a miscarriage of justice. The Court found that Mr Henry’s insistence that the evidence could not support a conviction, despite the Judge correctly refusing to allow the Crown to amend the indictment because threatened force was an included element in the charge as laid, had created a miscarriage of justice. Mr Witehira was deprived by counsel’s view of the law from advancing a defence that was more likely to result in the jury not being satisfied that the Crown had proved its case beyond reasonable doubt. The conviction appeal was allowed, and the conviction of assault using a motor vehicle as a weapon was quashed and no retrial was directed.

Orders