Mihaka v R [2015] NZCA 560 (19 November 2015)

Last Updated: 26 November 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA377/2015 [2015] NZCA 560
BETWEEN	TE RINGA MANGU NATHAN MIHAKA Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2015
Court:	Kós, Fogarty and Mallon JJ
Counsel:	B Crowley and N Bourke for Appellant I R Murray for Respondent
Judgment:	19 November 2015 at 3.00 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is allowed.

2. The application for leave to appeal is dismissed.

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REASONS OF THE COURT

(Given by Fogarty J)

[1] Mr Mihaka was found guilty of assault after a trial in the District Court.^[1] He was sentenced to 80 hours community work.^[2] He appealed that decision to the High Court, as was his right.^[3] His appeal against conviction was dismissed. His sentence appeal was allowed, the sentence was set aside and he was convicted and discharged. He now seeks leave from this Court to appeal the decision upholding the conviction. The application for an extension of time to appeal was not opposed. It is allowed.
[2] Section 237 of the Criminal Procedure Act 2011 provides:

237 Right of appeal against determination of first appeal court

(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[3] Mr Mihaka argues, in support of the application, that his case was:

• (a) a matter of general or public importance; and also
• (b) a miscarriage of justice occurred.

The facts

[4] Mr Mihaka and the complainant lived in separate flats in the same building. One Sunday afternoon, Mr Mihaka misplaced his keys and was not able to get replacements because it was Sunday. The complainant was his neighbour who he had known for several years. His neighbour found him outside, and after walking around the block looking for his keys, offered Mr Mihaka a place to stay for the night. They drank some wine and then Mr Mihaka went to sleep on the couch.
[5] The complainant woke up first and made coffee. He woke Mr Mihaka up. There is a dispute as to whether he woke him up by touching him on the shoulder or by hitting him. In any event, Mr Mihaka got up. There is then a dispute as to what happened. But shortly after what happened, Mr Mihaka left. His neighbour complained to the police and to the landlord, the Housing Corporation. As a result of this incident and the subsequent conviction, Mr Mihaka lost his right to be a tenant for up to a year.
[6] The complainant says that he touched Mr Mihaka, who was sleeping on the couch, on the shoulder to say that coffee was being made. He says Mr Mihaka got up, came over to him, put his hands around his throat and tried to throttle him. The complainant managed to break the hold.
[7] Mr Mihaka gave conflicting evidence. As to the complainant touching him, he variously said that the complainant punched him, or put his hand on Mr Mihaka’s chest, or tapped his shoulder. He later said it was a closed-fist punch to the shoulder.
[8] Mr Mihaka then says in response he pushed the complainant away and left. He denied the throttling.
[9] There is no doubt that the complainant had an injury around the throat. That was witnessed by a police officer.

District Court trial

[10] The case was tried in the District Court before Judge JM Kelly sitting alone. She found the complainant’s version of the facts was credible and rejected Mr Mihaka’s version, that he simply pushed the complainant away and left.^[4]
[11] She preferred the complainant’s version as it was consistent with the objective facts, including the observed injury to the complainant’s throat.
[12] Judge Kelly had been alive to the possibility of self defence if Mr Mihaka’s evidence as to what happened was believed. But having found his evidence was inconsistent with the bruising on the complainant’s neck (observed by a police officer), she said:^[5]

... I am satisfied that even if the issue of self defence was raised on the evidence, the police have proved beyond reasonable doubt that Mr Mihaka was not acting in self defence.

The appeal

[13] The appeal was heard in the High Court before Simon France J.
[14] In the High Court, for the first time, Mr Mihaka had a lawyer. The principal argument in the High Court was that Judge Kelly had not properly directed herself on the elements of self defence and, accordingly, had failed to adequately consider the defence. In particular, there was no initial identification of the circumstances, as Mr Mihaka believed them to be. That resulted in the self defence being wrongly rejected.
[15] The argument in reply was that Judge Kelly was entitled to assess Mr Mihaka’s credibility and, having done that and finding that his version of events was simply not true, then there was no basis on those facts to support self defence.
[16] In the High Court, Simon France J considered that the District Court Judge was wrong to place some reliance on Mr Mihaka’s exercise of his right of pre-trial silence in assessing his credibility. He was not prepared to draw any inference from that. He compared the right of silence now enshrined in the New Zealand Bill of Rights Act 1990, s 23(4), and s 32 of the Evidence Act 2006, with the traditional position of common law set out in R v Coombs.^[6] He considered that while there may remain circumstances in which it is legitimate to regard silence as relevant to credibility, it was not legitimate to do so in the present circumstances for the reasons he explained.
[17] The Judge also doubted that there was any significance to Mr Mihaka’s credibility in that a witness had not come up to brief.
[18] Putting aside these two matters, Simon France J was of the view there was no basis to doubt Judge Kelly’s assessment of the complainant’s evidence reached against the background of the vagueness of Mr Mihaka’s evidence at trial and the inconsistency of it and the objective evidence of bruising on the complainant’s throat.
[19] That led to the conclusion by Simon France J:^[7]

The analysis of self defence must therefore proceed on the basis that the force in issue was a throttling of the victim, done a short time after any contact, while the victim is sitting in a chair.

[20] The Judge then allowed for the fact that Mr Mihaka did genuinely think himself the victim of an assault. But on his own evidence, having pushed the complainant aside, he was able to readily leave. Instead the evidence, as found in the District Court and accepted in the High Court, was that Mr Mihaka got up, walked across to the seated complainant and began throttling him. Simon France J concluded:^[8]

There is no basis on which one could find this to be acting in defence of himself, or with reasonable force, even picking the most favourable option (to Mr Mihaka) concerning the force of the contact made on him by the complainant.

[21] Accordingly, Simon France J considered self defence to be an unrealistic argument. That led to him dismissing the appeal.

The application for a second appeal

[22] The application for leave was argued on a blend: of matters of general importance, and on miscarriage of justice.
[23] The argument of general importance was that New Zealand judges are not as well informed, nor carry out procedures appreciated and followed by judges in some overseas jurisdictions in the case of lay litigants. Reliance was made principally on statutory materials. There is very little statutory guidance in New Zealand to judges on how to try cases with lay litigants.
[24] New Zealand judges are conscious of the challenges faced by selfrepresented litigants and are alive to the potential for a miscarriage of justice where the litigant is self-represented. Regularly procedural standards insisted upon when professional advocates are conducting cases are adapted for self-represented litigants. Where needed, the judges can question the witnesses.
[25] This is not to say that, of course, New Zealand courts cannot develop better techniques for dealing with self-represented litigants. But we do not think that the setting of this case is the appropriate forum to examine the needs of self-represented litigants. First, the issues associated with self-represented witnesses were addressed at length by this Court, very recently, in Mount v R.^[9] Secondly, this case has a very simple factual setting. It does not present issues requiring consideration that were overlooked in Mount v R. The reasoning of the two Judges does not therefore raise any matter of general importance worthy of consideration in a second appeal.
[26] It follows that the only basis upon which a second appeal could be considered is whether there was a risk of a miscarriage of justice. We do not think that there is an argument available that there was a miscarriage. First, Mr Mihaka made an informed choice to represent himself, rather than have counsel assigned on legal aid. Secondly, at the trial Judge Kelly intervened on a number of occasions to inform Mr Mihaka as to how he needed to proceed. Counsel for Mr Mihaka submits that she did not do so in a way that was adequate to ensure he had a fair hearing. We do not agree. Our impression from the notes of evidence at trial is that the Judge guided Mr Mihaka fairly, in particular as to the need to put his case to the complainant in cross-examination. At times she had to reign in Mr Mihaka’s tendency to make speeches, rather than put questions to the witness. She did bring the crossexamination to an end, eventually, but the further matters Mr Mihaka seemed to want to ask the complainant about were of peripheral relevance at best. The Judge allowed Mr Mihaka to tell his account of events in his own defence, and then asked him a number of questions eliciting further helpful detail. Thirdly, Judge Kelly’s decision, having heard the evidence, was oral, and appropriately so, and she set out reasons for accepting the complainant’s evidence. The decision in the High Court came after deliberation. Simon France J reserved the decision. His analysis is careful and precise. There is no basis for an argument that a miscarriage of justice may have occurred in either of the two decisions.
[27] Accordingly, this application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] New Zealand Police v Mihaka [2015] NZDC 6404.

^[2] New Zealand Police v Mihaka [2015] NZDC 6474.

^[3] Mihaka v New Zealand Police [2015] NZHC 1318.

^[4] New Zealand Police v Mihaka, above n 1.

^[5] At [26]

^[6] R v Coombs [1983] NZLR 748 (CA) at 751–752.

^[7] Mihaka v New Zealand Police, above n 3, at [18].

^[8] At [19].

^[9] Mount v R [2015] NZCA 489.