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James William Manuoa Te Hiko v/s The Queen


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Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 321 of 2017

    Decided On, 13 May 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE MANDER & THE HONOURABLE MR. JUSTICE DUNNINGHAM

    For the Appellant: In person. For the Respondent: A.D.H. Colley, Advocate.



Judgment Text


REASONS OF THE COURT

(Given by French J)

[1] Mr Te Hiko was found guilty of murder in a High Court jury trial. He was convicted and sentenced by Gilbert J to life imprisonment with a non-parole period of 17 years.[1]

[2] Mr Te Hiko appealed his conviction and sentence to this Court. The appeal was dismissed.[2]

[3] Mr Te Hiko now seeks a re-hearing of the appeal primarily on the grounds of alleged shortcomings by the lawyer who represented him at the appeal.

[4] The question for determination in this judgment is whether a re-hearing should be granted. Miller J directed that this issue should be determined separately from the merits of the proposed appeal. He further directed that the application for a re hearing should be heard on the papers.[3]

[5] The Crown opposes the application for a re-hearing. It has not filed any affidavit evidence.

The trial

[6] The deceased was Mr Te Hiko’s partner, a Ms Thompson. There has never been any dispute that Mr Te Hiko assaulted and killed her. The issue at trial was whether the jury could be sure he had murderous intent and so guilty of murder rather than manslaughter.

[7] The Crown case was that Mr Te Hiko had subjected Ms Thompson to a savage beating as a result of which she sustained serious head injuries. Those injuries had caused her to lose consciousness, inhale blood and possibly vomit, which then blocked her airways leading to death.

[8] One of the key Crown witnesses was a pathologist Dr Stables. He said there were at least 70 separate injuries to Ms Thompson’s head and body. A metal pipe had been found at the scene with a hair and contact bloodstain on it. The blood was Ms Thompson’s. Dr Stables said this pipe could have caused some of the injuries based on their size, depth and well-defined impact. There were no skull fractures but deep injuries to the brain stem suggested she had experienced blows that caused the brain to move and twist with rapid loss of consciousness following.

[9] In cross-examination, Dr Stables accepted that most of Ms Thompson’s injuries would not have caused death. He also acknowledged he could not exclude other causes of brain trauma such as falling against furniture.

[10] Mr Te Hiko gave evidence at the trial.

[11] He told the jury about his addiction to methamphetamine and alcohol and his efforts to seek treatment. He explained he had a safety plan designed to keep him sober which Ms Thompson had breached by inviting people to their home to drink. He said he ended up drinking too and also smoked methamphetamine. After the guests had left, he got into an argument with Ms Thompson. She gave him to understand she may have slept with someone else but refused to say whom. He became enraged and attacked her, an action he attributed to the effects of methamphetamine. He estimated the assault would have lasted approximately 30 minutes with each blow accompanied by the question “who the fuck is it?” He admitted punching her in the head, kicking her “in the guts”, lifting her up off the bed by her hair and throwing her around but denied ever using the pipe. He accounted for her blood on the pipe by saying the police or ESR must have planted it.

[12] In closing, Mr Te Hiko’s trial lawyer submitted the Crown could not prove that Mr Te Hiko acted recklessly, knowing he might kill Ms Thompson. Counsel argued Mr Te Hiko was affected by intoxication and had no real understanding of how severe the beating was. It was further argued that transference could explain the blood on the pipe.

The appeal

[13] The grounds of appeal raised issues of trial counsel error. Both Mr Te Hiko and his trial counsel provided affidavits. At the appeal hearing, trial counsel was cross examined by Mr Gardiner who was acting for Mr Te Hiko on the appeal.

[14] In its subsequent decision, this Court identified three grounds of appeal against conviction:[4]

(a) Trial counsel did not properly prepare Mr Te Hiko to give evidence and as a result the cross-examination went badly for him.

(b) The implications of his drug addiction for murderous intent were never adequately explained to the jury.

(c) The metal pipe assumed more evidential significance than it could properly bear. It was unlikely to have been used, as evidenced by blood splatter.

[15] This Court rejected all three grounds.

[16] It also rejected an appeal against sentence. It found that on the facts s 104(1)(e) of the Sentencing Act 2002 was engaged warranting a 17 year non-parole period.[5]

The principles governing applications for a re-hearing (recall)

[17] It is well established that this Court has an inherent power to revisit — or more accurately recall — its decisions in exceptional circumstances.[6] The scope of that power was recently considered in Lyon v R and it was confirmed that the power is a narrow one based on the impeachment of the appellate process.[7] The Court held that recall was only available if three conditions are satisfied.[8] First, there must have been a fundamental error of procedure. Second, that unless the error is corrected, there will be a substantial miscarriage of justice. And, third, there is no alternative effective remedy.

[18] Mindful of those requirements, we turn now to consider Mr Te Hiko’s application for a rehearing or, more accurately, a recall.

Grounds of the application for recall

[19] In support of his application for recall, Mr Te Hiko has filed a large volume of material including an affidavit sworn by himself.

[20] In one of his communications with the Court, Mr Te Hiko says he has new evidence in the form of a previously unavailable witness who has agreed to give fresh evidence relating to Mr Te Hiko’s state of mind at the time of the homicide. Mr Te Hiko submits this fresh evidence “will turn my whole case on its head.”

[21] Mr Te Hiko does not name the new witness. Nor does he provide a statement from him. In any event, as the Lyon decision makes clear, new evidence is not a ground for recall in this Court. Therefore, an application on that basis cannot succeed. The appropriate course of action is for Mr Te Hiko to seek leave to appeal to the Supreme Court.

[22] As previously indicated, the main ground of the application for recall is the alleged incompetence of appellate counsel. Mr Te Hiko makes numerous allegations. These fall under two broad overlapping headings:

(a) Mr Gardiner misunderstood/misinterpreted the grounds of appeal and misrepresented them in his submissions.

(b) Mr Gardiner did not follow Mr Te Hiko’s instructions regarding the grounds of appeal he wanted to run and misrepresented them to the Court.

Analysis

[23] In Lyon, the Court left open the question of whether a fundamental error by appellate counsel might give rise to a sufficient error to qualify for recall. On the assumption that it does, we turn to consider the main specific criticisms made by Mr Te Hiko.

Misstating the argument about insufficient preparation time

[24] Mr Te Hiko submits his argument about inadequate trial preparation was not confined solely to the detrimental effect it had on his own evidence. It was a more general argument. But that was not how the argument was represented to this Court as is reflected in the Court’s formulation of the first ground of appeal. Mr Te Hiko says in the few meetings he did have with trial counsel, the latter failed to discuss key trial issues with him, including making sure he understood the concept of intent and providing him with all relevant evidence.

[25] This contention is not sustainable.

[26] The particularised grounds of appeal, the affidavit Mr Te Hiko swore for the appeal, and the written submissions filed on his behalf which he approved all put the focus on the effect the inadequate preparation had on the quality of his own testimony and the way he would have come across to the jury. Further, this Court found on the evidence that Mr Te Hiko was intelligent, had taken a close interest in the case, was made aware of the Crown evidence and that a written brief of evidence had been prepared based on his own diary.[9] Significantly, the brief of evidence was clearly written to advance the defence that in his intoxicated state Mr Te Hiko did not subjectively appreciate the risk of death. The actual evidence he gave at trial was consistent with the brief. We note too that during the course of his testimony he demonstrated a familiarity with the case generally including documents.

[27] Finally, we note in any event that Mr Gardiner did put the argument about preparation in more general terms to trial counsel in cross-examination. He put to him that the latter had insufficient time with Mr Te Hiko and that ultimately this disadvantaged Mr Te Hiko considerably in defending himself effectively against the serious charge of murder. Trial counsel denied this and gave compelling reasons why that was not the case.

[28] There has been no fundamental error.

Breaching instructions regarding questions to put to trial counsel

[29] Mr Te Hiko has filed a list of questions which he says he instructed Mr Gardiner to ask trial counsel and which he failed to do.

[30] The first point we would make is that cross-examination is one of those areas where counsel have a large measure of discretion and are not required to ask every question that the client wants them to put. In any event, we are satisfied that the questions on Mr Te Hiko’s list were either in fact asked or were irrelevant and would not have assisted his appeal.

Failing to raise on appeal the trial judge’s exclusion of propensity evidence

[31] At trial, defence counsel sought to adduce evidence the deceased had been dismissed from her employment because of a drink driving conviction, that she was drinking heavily and that her life was unravelling. Gilbert J held the evidence was not relevant and it was therefore inadmissible.[10]

[32] Mr Te Hiko says the evidence was relevant and had trial counsel explained it properly, then the Judge would have admitted it. In breach of Mr Te Hiko’s instructions, Mr Gardiner did not raise the matter on appeal.

[33] This issue did not however feature in the grounds of appeal nor the written submissions. In any event, it would have been an appeal point with no prospect of success. Contrary to Mr Te Hiko’s submission, the evidence was plainly not relevant to his state of mind at the time of the assault. In so far as Mr Te Hiko says the evidence was relevant because it showed the dynamics of his relationship with the deceased, there was in fact ample evidence of that already before the jury.

Not objecting to trial counsel’s failure to call alcohol and drug counsellor.

[34] Mr Te Hiko says in breach of his instructions, Mr Gardiner did not object to trial counsel’s failure to call his alcohol and drug counsellor as a witness.

[35] This criticism is unfounded. Mr Gardiner made an application to adduce the evidence of the counsellor — a Mr Putai — on appeal. The failure to call Mr Putai at trial was a ground of appeal and when cross-examining trial counsel, Mr Gardiner put it to him that he should have called Mr Putai.

[36] This Court granted the application to receive Mr Putai’s evidence but concluded it did not assist Mr Te Hiko’s appeal against conviction. In his evidence, Mr Putai recounted Mr Te Hiko’s drug addiction and genuine attempts to gain control over it. He also stated that psychosis was a risk factor for Mr Te Hiko when he was in withdrawal after using methamphetamine.[11] However, as the Court observed, the evidence did not go so far as to suggest Mr Te Hiko may have lacked murderous intent.[12]

[37] As the Court noted, the possibility that Mr Te Hiko was so affected by methamphetamine as to lack murderous intent was squarely before the jury.[13] The jury’s rejection of that as a reasonable possibility was clearly open to them. One of the many difficulties Mr Te Hiko faced was evidence that none of the guests remembered him taking methamphetamine and he had received a text that night telling him there was none available. His ability to recount the detail of the assault also told against him being so intoxicated or impaired as to be incapable of forming intent. An intoxicated intent is still in law an intent.

Breaching instructions by raising arguments about the pipe

[38] Mr Te Hiko says he instructed Mr Gardiner not to argue about whether the evidence showed Mr Te Hiko had used the pipe, because this point had already been sufficiently covered at trial. In breach of those instructions, Mr Gardiner did run those arguments and so wasted time.

[39] The pipe was listed as a ground of appeal and addressed in the written submissions. In any event, the raising of it is not capable of being classified as a fundamental error occasioning a miscarriage of justice.

Failing to challenge the evidence that Mr Te Hiko had hit the victim at least 70 times with tremendous force

[40] Mr Te Hiko says he instructed Mr Gardiner to make this challenge but he failed to do so. However, the issue was in the amended grounds of appeal and (albeit briefly) in written submissions. Mr Gardiner did also endeavour to put the issue to trial counsel in cross examination and raised it in oral submissions. He submitted that on its face 70 blows sounded dreadful but when one did a breakdown of where the impacts occurred they were all over the body and most of the impacts were scratches and abrasions.

[41] However, the Crown case did not depend on there being 70 blows, so this was never going to be an argument that would result in a successful appeal. As already mentioned, the pathologist acknowledged that not all the injuries were capable of causing death and that some of the injuries may have had other explanations. What mattered was that there were a number of injuries that it was reasonable to infer could only have been caused by blows and that a number of blows were capable of causing the actual fatal injury which was a twisting of the brain.

Failing to obtain expert evidence relating to Mr Te Hiko’s alcohol and drug addiction and intoxication at the time of the offending

[42] Mr Te Hiko says he instructed Mr Gardiner to obtain this evidence and it was never done.

[43] However, Mr Te Hiko also says in his affidavit that Mr Gardiner has since told him he did consult experts and further has provided him with details of what the experts said. By implication, the advice of the experts was not helpful to Mr Te Hiko because he goes on in his affidavit to take issue with the experts and says an important point they and everyone else has overlooked is that he did not want to drink that night but because of his severe addiction to alcohol he was incapable of resisting. That he contends is a very important point of mitigation “overlooked at my Appeal Hearing, and it was certainly overlooked at my Trial for Murder”.

[44] However, that is not a mitigating factor capable of impugning the conviction. It is relevant to the sentence appeal but it cannot justify recall because it was in fact taken into account by this Court. In its decision, the Court expressly stated it recognised Mr Te Hiko was trying to deal with his addiction and attempting to keep alcohol and drugs out of the house.[14] It further said he had some commendable personal qualities and he was seeking to deal with the addiction that may have contributed to the murder but those considerations were offset by his past history, absence of remorse and the sheer brutality of the attack.[15]

Failing to investigate missing sections of the transcript

[45] Mr Te Hiko claims there is a “significant amount of dialogue” missing from the transcript of the evidence he gave at trial about how much alcohol he had drunk that night, and the amount of methamphetamine he smoked. He says he instructed Mr Gardiner to recover the missing dialogue but that he failed to do so.

[46] According to Mr Te Hiko’s affidavit, it appears that Mr Gardiner did make inquiries of the High Court and was satisfied the transcript was complete. There are no obvious gaps in the transcript and we do not consider Mr Gardiner was required to pursue the matter any further.

Oral submissions unclear

[47] Finally, Mr Te Hiko claims that Mr Gardiner was “inexperienced” and “way out of [his] league”. At the hearing, his oral submissions were unclear.

[48] The difficulty with this allegation is that regardless of the quality of the oral submissions, the particularis

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ed grounds of appeal and the written submissions were detailed and very clear. The Court was well aware of the arguments which it for good reasons considered wholly untenable. The quality of the oral submissions would have had no effect on the outcome of the appeal. Conclusion [49] We are not persuaded that Mr Te Hiko’s application for a recall satisfies any of the three prerequisites for recall. There has been no fundamental error in the appeal process let alone one which requires correction in order to avoid a miscarriage of justice. We further note that, as minuted by Miller J, Mr Te Hiko has the option of seeking the leave of the Supreme Court to appeal to that Court.[16] Outcome [50] The application for a recall of the Court’s earlier decision dismissing the appeal against conviction and sentence is declined. -------------------------------------------------------------------------------- [1] R v Te Hiko [2017] NZHC 1260. [2] Te Hiko v R [2019] NZCA 41. [3] R v Te Hiko CA321/2017, 29 April 2019. [4] Te Hiko v R, above n 2, at [7]–[9]. [5] At [23]. [6] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA). [7] Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [23]. [8] At [27]. [9] Te Hiko v R, above n 2, at [14]. [10] R v Te Hiko HC Rotorua CRI-2016-063-1304, 21 March 2017. [11] We consider that this evidence is not relevant to whether Mr Te Hiko had formed murderous intent at the time of the offending because his contention was that he had taken methamphetamine that evening and so would not yet have been experiencing withdrawal. [12] Te Hiko v R, above n 2, at [8]. [13] At [17]. [14] At [22]. [15] At [24]. [16] R v Te Hiko, above n 3, at [3].
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