Witehira v The Queen - [2013] NZCA 58

IN THE COURT OF APPEAL OF NEW ZEALAND

CA402/2012
[2013] NZCA 58

BETWEEN ROBERT WILLIAM WITEHIRA
Appellant

AND THE QUEEN
Respondent

Hearing: 4 March 2013

Court: White, MacKenzie and Mallon JJ

Counsel: B P Henry and P J Knapp for Appellant
K E Salmond for Respondent

Judgment: 15 March 2013 at 10.30am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe appellant’s pleas of guilty in the District Court are vacated and the convictions based on them are quashed.

CThe charges are remitted to the District Court at Hamilton for the appellant to replead and for a trial date to be set.

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Witehira appeals against the decision of the District Court to dismiss his application to vacate his guilty pleas on charges of assault with a weapon and reckless driving. The appeal is brought as an appeal against conviction although Mr Witehira is yet to be sentenced. This is said to be an exceptional case such that it is appropriate for the Court to deal with this appeal prior to sentencing.

Background

The charges

The charges against Mr Witehira arose out of a driving incident involving his former partner (the complainant) and her children (a daughter aged 11 years old and a son aged three years old). It was alleged that Mr Witehira had intentionally driven his car so as to hit the car in which the complainant and her children were travelling. Following the incident he was charged with assault with a weapon and reckless driving.
Mr Witehira intended to defend the charges. He was remanded in custody for a period. He was later granted bail, initially on an electronically monitored basis and then ordinary bail with residential and non-contact conditions. He was committed for trial in February 2011 on the assault with a weapon charge (reckless driving being a summary offence). The indictment on which he was to be tried contained three charges of assault with a weapon (one for each person in the complainant’s car). They were each representative charges because the Crown alleged that Mr Witehira had rammed the complainant’s car more than once in the course of the incident. The allocated trial date was 21 July 2011. Both parties were ready to proceed that day.

The Crown case

The Crown case, as set out in the police summary of facts, was as follows. At about 10.50 am on 6 October 2010, the complainant was driving her car towards Hamilton. She had her daughter in the front passenger seat and her son in the back seat. Mr Witehira drove past her in the opposite direction. When he saw the complainant, he turned his car around, caught up with her and immediately drove into the back of her car. At this time the complainant had entered a 100 km/h zone. The blow to the car was significant and caused the complainant to swerve dramatically to the left. The complainant was too scared to stop. She continued…

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 [2013] NZCA 58
Case: [2013] NZCA 58
Decision Date: 15 March 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Robert William Witehira against the decision of the District Court to dismiss his application to vacate his guilty pleas on charges of assault with a weapon and reckless driving. Witehira, who had intended to defend the charges, entered guilty pleas after the Crown suggested that his level of culpability could be reflected by one charge of assault with a weapon and the summary charge of reckless driving. The appeal was brought as an appeal against conviction, although Witehira was yet to be sentenced. Witehira argued that the appeal should be allowed because the Judge erred in refusing to permit him to vacate his guilty pleas, which gave rise to a miscarriage of justice.

The legal issues the Court had to decide were whether the appeal should be heard before sentencing, and whether the District Court Judge erred in refusing to allow Witehira to vacate his guilty pleas. The Court found that this was an exceptional case where it was pragmatically desirable to hear the appeal now, as Witehira intended to seek a disputed facts hearing prior to being sentenced, which would result in the complainant and her daughter having to give evidence twice. The Court agreed that the guilty plea was entered without a proper understanding of whether imprisonment was ever a prospect, and following a Crown proposal that potentially offered no advantage to Witehira. The conviction on a guilty plea given in those circumstances gave rise to a miscarriage of justice.

The appeal was allowed. Witehira's guilty pleas on the charges of assault with a weapon and reckless driving were vacated, and his convictions on the basis of those pleas were quashed. The charges were remitted to the District Court at Hamilton for Witehira to replead and for a trial date to be set.

Orders