At, Court of Appeal of New Zealand
By, THE HONOURABLE MR. JUSTICE KÓS P
By, THE HONOURABLE MR. JUSTICE WYLIE & THE HONOURABLE MR. JUSTICE MUIR
For the Appellant: D.J. Dufty, Advocate. For the Respondent: R.K. Thomson, Advocate.
REASONS OF THE COURT(Given by Wylie J)Introduction On 4 April 2008, the appellant, James Toia, was convicted following trial by jury in the District Court at Auckland on one charge of male assaults female. He was fined the sum of $750 and ordered to pay court costs of $130. Mr Toia’s conviction arose from a domestic incident. The complainant was his partner at the time. At trial, the Crown relied in large part on the evidence of one of the complainant’s friends. The friend gave evidence at trial that she saw the complainant on the day following the alleged incident and observed injuries on the complainant that were consistent with her version of events. Mr Toia appealed his conviction to this Court, on the principal ground that inadmissible evidence had been given by the complainant at trial, which had led to a miscarriage of justice. At this stage there was nothing to impugn the friend’s evidence, and it was not challenged on appeal. The appeal was dismissed. In May 2012, the friend swore an affidavit. She accepted that the evidence she gave at trial was false. She said that she had not observed any injuries on the complainant. She said that the complainant was a friend, that she felt sorry for her and that, as a result, she sought to help her by lying to the police and when giving evidence in court. In June 2012, Mr Toia applied to the Governor-General for the exercise of the Royal prerogative of mercy. The friend was convicted of perjury in August 2014, having entered a plea of guilty to that charge. She was sentenced to 10 months’ home detention. The Governor-General referred the matter to this Court in March 2020, pursuant to s 406(1)(a) of the Crimes Act 1961. The Crown acknowledges the fresh evidence — namely the friend’s sworn affidavit and her conviction for perjury. It accepts that this indicates that a miscarriage of justice may well have occurred, and that the appeal should be allowed. The hearing of the appeal took place on 31 August 2020. We allowed the appeal. We now give our reasons.Discussion We are satisfied that there has been a miscarriage of justice, and that the conviction should be set aside. While the consequence would ordinarily be a retrial, we agree with the Crown that in the particular circumstances of this case, there is no public interest in such course. Twelve years have elapsed since the alleged incident. The alleged offending was of only moderate seriousness. Further, the fresh evidence suggests that any further prosecution for the alleged offending would have at best a limited prospect of success.Result Accordingly, the appeal is allowed. The conviction is set aside pursuant to s 233(2) of the Criminal Procedure Act 2011. Further, we direct that there is to be no retrial of the matter. We order, pursuant to s 350 of the Criminal Procedure Act, that the fine and court costs paid by Mr Toia ar
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e to be reimbursed to him out of the Crown fund, together with interest calculated as if it were payable under the Interest on Money Claims Act 2016.------------------------------------------------------------- Crimes Act 1961, s 194(b). R v Toia DC Auckland CRI-2007-090-2230, 4 April 2008. R v Toia  NZCA 343.