Zainey v The King - [2023] NZHC 1649

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF ANY PERSON(S) UNDER THE AGE OF 18 YEARS WHO IS A COMPLAINANT OR WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-209

[2023] NZHC 1649

BETWEEN
LUKE ARTHUR FRANCIS ZAINEY

Appellant

AND

THE KING

Respondent

Hearing: 26 June 2023

Appearances:

G A Reid for Appellant

R McDonald for Respondent

Judgment:

30 June 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 30 June 2023 at 2.00 pm.

………………………………
Registrar/Deputy Registrar

Solicitors:
Drury Law, Drury
Kayes Fletcher Walker, Auckland

ZAINEY v R [2023] NZHC 1649 [30 June 2023]

Introduction

[1] Following a judge alone trial before Judge Lovell-Smith in the District Court at Pukekohe, on 30 November 2022, Mr Luke Zainey was found guilty of assaulting a child, two charges of threatening to kill and one charge of assault with a weapon.1

[2] Mr Zainey appeals his convictions, alleging that a miscarriage of justice occurred. He contends that there has been a miscarriage of justice on the following grounds:

(a)the Judge erred in assessing the reliability and credibility of two police witnesses as the Judge was unable to hear portions of their evidence due to the poor quality of the audio-visual link (AVL) through which they each gave evidence from Australia;

(b)Mr Zainey was unfairly prejudiced as one police witness may have been able to hear what another police witness had said before giving their own evidence; and

(c)Mr Zainey was unfairly prejudiced by the prosecution’s failure to call a witness and failure to prevent her from watching the trial in advance of her then being called by the defence at the adjourned trial some two months later.

Conviction

[3] The below recounts the facts the Judge found occurred beyond reasonable doubt and which form the basis of Mr Zainey’s convictions.

[4] Mr Zainey’s convictions arose from incidents that occurred in March 2020. The complaint involved three family members: Mr Norris, Ms Wagner and their son, who was four years old at the time of the alleged offending.2 The complainants were staying with Ms Andrews, a person with whom Mr Zainey co-parented two children.

1 Police v Zainey [2022] NZDC 23748 [District Court Decision].
2 All names other than Mr Zainey’s have been anonymised to protect the identity of the child.

[5] On the evening of 15 March 2020, the complainants, Mr Zainey and others were at Ms Andrews’ address. Mr Norris had put his son to bed before going outside to see Ms Wagner. Upon hearing a “commotion” inside the house, Mr Norris walked inside to the children’s bedroom. There, Mr Norris saw Mr Zainey hitting his son in the head or eye area. Mr Norris intervened, preventing Mr…

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 Zainey v The King

Details

AGLC: Zainey v The King [2023] NZHC 1649
Case: [2023] NZHC 1649
Decision Date: 30 June 2023

CaseChat Overview and Summary

In Zainey v The King, the High Court of New Zealand considered an appeal by Luke Zainey against his convictions for assaulting a child, threatening to kill, and assault with a weapon. The appellant argued that a miscarriage of justice occurred due to issues with the audio-visual link (AVL) during the trial, the presence of a witness in the courtroom during another witness's testimony, and the prosecution's failure to call a specific witness. The Court dismissed the appeal, finding no miscarriage of justice on any of the grounds raised. The Court held that the quality of the AVL did not prevent the Judge from assessing the credibility of the witnesses, and that there was no evidence to suggest that the witness exclusion order was breached. The Court also found that the prosecution was not obliged to call a witness they deemed untrustworthy and that there was no prejudice to the appellant as a result of the prosecution's decision. The appeal was ultimately dismissed as the Court was satisfied that no miscarriage of justice occurred.

Orders