Heke v R [2019] NZCA 256 (26 June 2019)

Last Updated: 2 July 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA506/2017 [2019] NZCA 256

	BETWEEN	WHAREPOURI HEKE Appellant
	AND	THE QUEEN Respondent

Hearing:	9 May 2019
Court:	Courtney, Lang and Whata JJ
Counsel:	S N Hewson for Appellant M J Lillico and P D Marshall for Respondent
Judgment:	26 June 2019 at 11.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to file the notice of appeal is granted.
2. The appeal against conviction is dismissed.

100. The appeal against sentence is allowed.

4. The sentence of eight years’ imprisonment is quashed and substituted with a sentence of six years and ten months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] On the evening of 4 September 2015 Wharepouri Heke became involved in an altercation with his brother, James Heke (James) over the ongoing care of their elderly mother. Mr Heke took a length of wood and hit James over the head at close range causing serious head injuries.
[2] Following a jury trial in the District Court at Kaikohe, Mr Heke was convicted on one charge of causing grievous bodily harm with intent to cause grievous bodily harm. Judge McDonald imposed a sentence of eight years’ imprisonment.^[1] Mr Heke appeals his conviction on the grounds that he was denied a fair trial as result of:

• (a) being refused the right to consult and instruct a lawyer at the start of the trial;^[2] and
• (b) the cumulative effect of various errors during the trial.

[3] Mr Heke also appeals his sentence on the ground that it is manifestly excessive as a result of the Judge taking too high a starting point.
[4] Mr Heke requires leave to bring his appeal because it was filed slightly out of time. There is no prejudice to the Crown and no objection raised by it. Leave is accordingly granted.

The offending

[5] Mr Heke was 51 years old at the time of the offending and had, for the preceding 20 years or so, lived with and been the primary carer of his elderly mother. He received a benefit for that purpose. Sometime in the month or so preceding the offending Mr Heke’s mother suffered a stroke and was admitted to hospital.
[6] There was disagreement among Mr Heke’s siblings as to Mrs Heke’s ongoing care upon leaving hospital. James and a sister, Pearl Kovalyov (Pearl), proposed that Mrs Heke stay with Pearl while renovations were undertaken to Mrs Heke’s home and that James and his wife then move in with her to provide care. It was unclear from the evidence whether that proposal would see Mr Heke continue to reside at that house or not. Moreover, there was disagreement among other family members as to whether this was the appropriate course. Nevertheless, the proposal was acceptable to hospital staff and Mrs Heke was discharged into Pearl’s care.
[7] Mr Heke had planned to collect his mother from the hospital but on the day she was discharged another brother contacted him to say that she had already been taken home with Pearl. Mr Heke unsuccessfully sought assistance from the police. He then drove to Pearl’s house. Although Mrs Heke wished to see him, Pearl would not allow Mr Heke to enter the house.
[8] Two other occupants of the house took videos on their cellphone of the events that unfolded. They showed Mr Heke banging on the windows, visibly agitated, demanding to see his mother. Mrs Heke could be heard asking to see him. Then James arrived, having been out to get a prescription filled. The two men spoke. Mr Heke was clearly agitated. James got his cellphone out and called the police. While he was speaking Mr Heke picked up a substantial length of wood lying nearby. He approached James with the wood. James attempted to move closer, apparently to reduce the distance between them. Mr Heke swung the wood towards James’ head and James fell instantly to the ground and lay, unmoving.
[9] When questioned by the police Mr Heke maintained that James had threatened him with the cell phone and that he had been acting in self defence, and with reasonable force. He maintained that claim in evidence and also said a number of times that he had not intended to inflict such serious harm on his brother.

First ground of appeal against conviction: lack of representation

The issue

[10] Mr Heke had been represented by four separate legal aid counsel at the early stages of the process. Mr Heke dismissed two of them and two others withdrew for various reasons. As a result , Mr Heke was without representation by December 2016. In late March 2017 he made a further, unsuccessful, application for legal aid. Out of concern at Mr Heke’s lack of representation, the Court appointed Mr Moroney, nominally as amicus curiae but with a brief that was really one of standby counsel.^[3] On the first day of the trial Mr Heke applied unsuccessfully for an adjournment in order to engage counsel privately.
[11] Mr Heke’s appeal is based on the premise that he was not self-represented by choice and that his lack of representation led to a miscarriage of justice. Mr Hewson, for Mr Heke, submitted that Mr Heke ought not have been forced to proceed without representation, given the complexities of the trial, including the fact that Mr Heke would have to cross-examine family members personally. The Crown, however, says that Mr Heke’s lack of representation was the result of his own decisions in dismissing previous counsel and, in any event, no miscarriage of justice resulted from him conducting the trial himself with Mr Moroney’s assistance.

Appeal by a defendant who was unrepresented at trial

[12] A defendant has the right to self-represent. If he or she proceeds to trial having made an informed decision to do so the trial will not be unfair simply because counsel may have done a better job, though the defendant may nevertheless appeal on the basis that the trial was substantively unfair, resulting in a miscarriage of justice.^[4] In this case, however, Mr Heke complains that he did not want to selfrepresent. Instead, he wanted legal representation but he was denied it as a result of the Judge refusing his application for adjournment to enable him to engage counsel.
[13] Section 30 of the Sentencing Act 2002 provides:

(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

(2) Subsection (1) does not apply if the court is satisfied that the offender—

(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2011; and

(b) fully understood those rights; and

(c) had the opportunity to exercise those rights; and

(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—

(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b) quash the conviction and direct a new trial, or make any other order that justice requires.

(4) For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—

(a) refuses or fails to apply for legal aid under the Legal Services Act 2011 or applies for it unsuccessfully; and

(b) refuses or fails to engage counsel by other means.

[14] In R v Condon, which concerned a defendant who had dismissed his counsel prior to trial, the Supreme Court explained that:^[5]

[79] So the appropriate question in a case like the present is whether the accused’s lack of the proper opportunity to have legal representation made or contributed to making the trial, looked at as a whole, unfair so that there has been a substantial miscarriage of justice. ... Where, in the absence of waiver or forfeiture as explicitly contemplated by Parliament in subs (2) and (4) of s 30 of the Sentencing Act, legal counsel was not available at trial there will have been a breach of one or more of the subsidiary rights in s 24 of the Bill of Rights and prima facie an unfair trial will have resulted from that breach. The conviction will then be quashed unless the Crown is able to satisfy the appeal Court that the trial was actually fair in terms of s 25(a). The conclusion the trial was fair is not one to which a Court will easily be drawn.

[80] In contrast, if the accused makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated, there will have been no breach of the s 24 rights. But even in such circumstances an appeal Court must still examine the overall fairness of the trial, as was done in the New Zealand cases cited earlier, because the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair. If there had been no breach of the appellant’s right to representation, because the trial Court was properly “satisfied” in terms of s 30(2) of the Sentencing Act, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel. In some circumstances the manner in which the accused through his or her own choice or conduct came to be unrepresented may be relevant to the assessment of fairness.

(Footnotes omitted).

[15] In the present case, therefore, the first question is whether Mr Heke refused or failed to exercise his right to legal representation or dismissed counsel so as to come within s 30(2)(d). If not, it is for the Crown to satisfy us that the trial was fair. If, however, s 30(2) was engaged, it is for Mr Heke to show that the trial was unfair because the case could not have been conducted adequately without the assistance of counsel.

Refusal of adjournment application on the first day of the trial

[16] On the first day of trial Mr Heke applied for an adjournment. The Judge heard him on the application and gave a written ruling that records Mr Moroney’s presence in support of Mr Heke.
[17] The Judge noted that Legal Services had previously appointed five counsel^[6] to represent Mr Heke and had said it would not appoint a sixth. The Judge recorded Mr Heke’s submission that he would engage counsel privately but dismissed that, saying that “[i]n my view, he does not have sufficient funds to do so”. The Judge then expressed concern about the delays in the case to that point and noted the narrow factual compass of the case, with the main issue being self defence. Dismissing the application, the Judge said:^[7]

[18] Mr Heke has got himself into this position. There were no questions raised and never have been raised as to fitness to plead. Mr Heke is a competent person to act for himself. I have considered his interview with Detective Lupi. He had, that is Mr Heke, a fine grasp of what self defence is, not only that he was acting in defence of himself, but unusually for a lay person without any legal training being interviewed said that the force he used was reasonable.

[19] I see nothing before me today which leads me to the view that Mr Heke will not receive a fair trial if the case proceeds. The Courts cannot, as a general proposition, be held hostage to people who decide to act for themselves and then for spurious reasons want their case put off again and again.

[18] It is unclear whether the Judge was conscious of s 30(2) as his ruling did not address the specific facts required to be decided by s 30(2)(a)–(d). We therefore turn to consider how Mr Heke came to be unrepresented at trial.

The history of Mr Heke’s representation

[19] Mr Lillico acknowledged that some of Mr Heke’s previous counsel had withdrawn for reasons not of Mr Heke’s making but submitted that he had three counsel leading up to trial all of whom he dismissed either explicitly or constructively: Mr Puriri withdrew after Mr Heke filed his own bail variation application; Mr Muston and Mr Blaikie were both dismissed.
[20] Mr Hewson argued that Mr Heke’s legal aid history was not as straightforward as it appeared from the Judge’s ruling. On the basis of Mr Heke’s affidavit provided for the purposes of the appeal and the Court file, he submitted that the position regarding Mr Heke’s representation was as follows.
[21] Mr Heke first appeared on 5 September 2015. The duty solicitor assisted him to complete a legal aid application. At the suggestion of the duty solicitor Mr Heke named Mr Fairlie as the solicitor he wished to have assigned, even though Mr Heke had actually suggested Mr Blaikie, whom he knew to be a Kaikohe lawyer (the area in which Mr Heke lived).
[22] Mr Heke was remanded to appear by AVL on 9 September 2015. By then he had received confirmation of Mr Fairlie’s assignment and also a letter from Mr Fairlie. However, an agent (whose name Mr Heke does not know) appeared for Mr Fairlie on 9 September 2015. Mr Heke was remanded for plea to 29 September 2015. Once again, an agent (Mr Cribb) appeared for Mr Fairlie. Mr Hewson advised that leave had been granted for Mr Fairlie to withdraw, though the Court record does not mention that. No plea was entered. No application for bail was made. Mr Heke was remanded until 21 October 2015.
[23] Mr Heke says that he never had any direct contact with Mr Fairlie and when he telephoned Mr Fairlie’s office after the 29 September 2015 appearance he was told that Mr Fairlie was no longer acting and Mr Muston would be acting instead. Mr Fairlie did not provide an affidavit for the appeal.
[24] On 21 October 2015 Mr Littlefair as agent for appeared for Mr Muston. Mr Heke was remanded in custody to 3 November 2015 for a bail application and then to 22 December 2015 for a case review hearing. Mr Littlefair appeared as agent for Mr Muston on 3 November for the bail application, which was adjourned to 17 November 2015. Mr Muston appeared on 17 November 2015 and obtained bail.
[25] Mr Muston spoke to Mr Heke before the case review hearing scheduled for 22 December 2015 and advised him that the review would be adjourned to another date. Mr Heke did not agree to that. He wanted to know about the case against him and wanted to apply to vary his bail conditions. He went to court on 22 December 2015, to be told that the case review hearing was not proceeding. The next day he telephoned Mr Muston and, after an argument, dismissed him. Mr Muston did not provide an affidavit for the appeal.
[26] The case review hearing proceeded on 25 February 2016 with Mr Heke unrepresented. Mr Heke was remanded on bail to the first trial callover on 24 March 2016 pending reassignment of legal aid counsel.
[27] Mr Puriri was assigned and appeared for Mr Heke. Mr Heke instructed Mr Puriri to apply for a variation of bail conditions, which he did. An agent, Mr Ellis, appeared for Mr Puriri in support of the application on 5 April 2016. The application was refused. Mr Heke says that later that day Mr Puriri emailed him to advise that he could no longer represent Mr Heke because (Mr Heke recalls) Mr Puriri felt compromised by the application.
[28] Mr Puriri did file an affidavit in relation to the appeal. He says that his reason for withdrawing was that Mr Heke had filed the application to vary bail himself. He does not set out the date that this occurred, but the Court file indicates that it was between 5 April and 22 June 2016. Although there is a slight difference in the chronology, it is clear that Mr Heke did file an application to vary bail personally and Mr Puriri did feel compromised by Mr Heke’s actions.
[29] By 22 June 2016 Mr Blaikie had been assigned. He appeared for Mr Heke on the pre-trial applications on 20 July 2016 and at a hearing for an alleged bail breach on 29 July 2016. Mr Heke was remanded in custody until 23 August 2016. That day Mr Littlefair appeared as agent for Mr Blaikie. The trial was set for 1 May 2017, with a callover scheduled for 1 December 2016. An EM bail application was scheduled for 9 September 2016 too.
[30] The EM bail hearing did not proceed and Mr Heke was remanded until 1 December 2016. When he contacted Mr Blaikie to discuss the slow progress of the EM bail application there was an argument that resulted in Mr Heke dismissing him. In his affidavit Mr Heke acknowledged that he was annoyed at not getting bail and may have unfairly blamed Mr Blaikie. Mr Blaikie was granted leave to withdraw at the callover on the ground that his relationship with Mr Heke had broken down. The Court file records the Judge’s note on 1 December 2016 that:

Blaikie [given] leave to w/d; break down in relationship with client. S 30 explained – wants lawyer. RIC to 24/1/17 to check representation. [Trial] 1/5/17 remains FIRM.

[31] Mr Heke was still unrepresented at the case review hearing on 21 January 2017. His EM bail application was called on 24 January 2017 and adjourned for enquiries into the proposed address. This was first called on 2 March 2017, but was called again on 8 March. Mr Littlefair appeared that day, apparently as duty solicitor.
[32] On 9 March 2017 Mr Heke lodged a fresh EM bail application. This was heard on 23 March 2017 when he again appeared unrepresented. The Court file recorded that he was “[a]dvised of rights for L/Aid. Aware of that. Was refused. Intends to instruct counsel”. He was remanded in custody to 29 March 2017.
[33] On 29 March 2017, Mr Heke appeared and was assisted by a duty solicitor to reapply for legal aid. Mr Heke’s EM bail application was granted that day, effective the following day.
[34] On 11 April 2017 Mr Heke appeared again. He was still unrepresented, though there was a duty solicitor present. He was remanded on bail to a firm fixture of 1 May 2017 and an order was made for amicus to be appointed.
[35] At a pretrial conference on 21 April 2017 the matter was noted as being ready for trial but with no reference to Mr Heke’s lack of representation. After a teleconference on 27 April 2017 the Judge recorded in a minute that “Mr Moroney had spoken with the Legal Aid Grants Officer. That officer has indicated that further legal aid assignment would not be made to Mr Heke as the Legal Aid was withdrawn the last time.” Mr Heke indicated then that he might not be in a position to proceed to trial but was not actually applying for an adjournment at that point.
[36] This summary confirms that there were four legal aid lawyers assigned, not five. No doubt the confusion arose from the number of times agents appeared on instructions from the assigned lawyer. However, it is also clear that, apart from Mr Fairlie, Mr Heke must take responsibility for the three other lawyers ceasing to act. Further, Mr Heke had known since 9 September 2016 (when he dismissed Mr Blaikie) that he had no legal aid counsel and no other representation for trial.
[37] Despite having the issue raised by the Judge on 1 December 2016 and Mr Heke saying then that he wanted representation he did nothing for almost four months. On 9 March 2017 he indicated that he would engage counsel privately but did not do so. On 29 March 2017, four weeks before trial, he completed a further legal aid application. It must have been obvious then that, even if Legal Services could process the application within that time frame, it would be declined, given Mr Heke’s history. Finally, when Mr Moroney advised the court on 27 April 2017 that legal aid would not be granted Mr Heke still did not apply for an adjournment. Nor did he take any steps to engage a lawyer privately. In his affidavit filed in support of the appeal Mr Heke makes no reference to any attempt to arrange representation privately.
[38] In these circumstances Mr Heke cannot say there was insufficient time or warning of the problem he would face if he did not engage counsel. We consider that his actual or constructive dismissal of three counsel and his failure to take any steps to engage counsel privately, even after indicating his intention to do so, brought him within s 30(2)(d). We do not consider that the Judge erred in refusing to adjourn the trial. It is therefore for Mr Heke to persuade us that the trial was unfair because it could not have been conducted adequately without counsel.

Refusal of application to discharge the jury

[39] At the end of the Crown case on Wednesday 3 May 2017 the Judge adjourned early to allow Mr Heke time to consider whether he would call witnesses or give evidence. Early the following morning Mr Heke emailed the Court registrar with an application to discharge the jury or adjourn the trial.
[40] Mr Heke gave a number of reasons in support of his application: being taken by surprise by the Crown calling James to give evidence; wanting extant Family Court proceedings to be resolved before the trial proceeded; wanting more time to analyse the video footage; wanting to advance a different factual scenario from that advanced in the trial to date, namely that when he swung the wood at James, he missed so that there was no contact between the piece of wood and James’ skull.
[41] The Judge saw no merit in any of these reasons. To the extent they are maintained in the context of this appeal, we consider them later. For present purposes the relevant aspect is that Mr Heke also sought time to engage a lawyer privately. Although Mr Heke had been unrepresented in relation to the other issues, Mr Cribb appeared and made submissions on Mr Heke’s behalf in relation to the question of representation.
[42] The Judge refused Mr Heke’s application, giving brief reasons^[8] which he elaborated on in a further ruling dated 11 May 2017.^[9] On the question of representation, the Judge recorded Mr Cribb’s advice that Ms Cull was prepared to accept instructions provided arrangements for her fee were made and, that if Mr Heke could not make suitable arrangements then Mr Cribb would act for him pro bono. But the Judge confirmed his earlier view that Mr Heke’s lack of representation had arisen from his own conduct in relation to legal aid lawyers assigned to him and that, despite having sufficient time prior to the trial, he had taken no steps to engage a lawyer privately. He concluded that:

[24] Mr Heke has been able to advance his defence through crossexamination himself of Crown witnesses and with the assistance of Mr Moroney. I have allowed Mr Moroney a wide ranging brief which goes outside the traditional role of amicus. ...

[25] Mr Heke is an articulate intelligent man. He was able to clearly express himself in respect of legal arguments in the absence of the jury. Before the jury he was able to ask questions and put his case. Mr Moroney assisted him in cross-examination. Mr Moroney after receiving advice from Mr Heke opened for Mr Heke after the Crown opening. Mr Moroney has led the legal arguments for him. That will continue.

[43] The Judge concluded by expressing his “firm view that Mr Heke does not want his case to go to verdict”.
[44] In our view the Judge made no error in his assessment of the situation as it stood on 4 May 2017 in relation to representation. Satisfaction of s 30(2) still leaves it open to Mr Heke to argue that “the trial was unfair because the defence could not, in the particular case, have been adequately conducted without assistance from counsel”.^[10] However, we are satisfied that Mr Heke cannot show this to have been the case.
[45] The Crown and defence cases were both straightforward. There were only two factual issues, whether Mr Heke struck James with the wood and, if so, whether he intended to cause grievous bodily harm when he did so. There were no complex legal issues. Mr Heke gave evidence and was able to put his account before the jury directly. Moreover, he had effective assistance from Mr Moroney throughout the trial and it is evident from our earlier discussion that Mr Moroney addressed the jury in both opening and closing on all the relevant facts and issues.
[46] Assistance is to be had from this Court’s decision in Chatha v R.^[11] There, Mr Chatha faced five charges of using a document with intent to defraud and one charge of forgery. The circumstances of the charges and Mr Chatha’s defences to them varied widely. This Court was satisfied, however, that it was not a case that required “assistance from counsel”, despite its complexity and the assistance of an amicus being withdrawn partway through the trial.^[12] We agree with the Crown that the charge against Mr Heke could not fairly be regarded as a more complex case than Chatha.
[47] This ground of appeal accordingly fails.

Second ground of appeal against conviction: was the trial otherwise unfair?

[48] Mr Hewson argued that, regardless of whether Mr Heke had been responsible for his lack of legal representation, and notwithstanding Mr Moroney’s assistance, the trial was unfair as a result of:

• (a) the inadequacy of police disclosure;
• (b) pre-trial rulings regarding the video clips and mode of evidence;
• (c) the admissibility of Mr Heke’s police interview;
• (d) Mr Heke’s inability to brief any witnesses; and
• (e) Mr Heke’s inability to pursue plea negotiations for a lesser charge.

[49] Before considering these specific aspects, we briefly discuss Mr Moroney’s involvement in the trial. Mr Moroney provided an affidavit and gave evidence in the appeal. It is clear that his brief was really in the nature of standby counsel rather than amicus. In his affidavit he explained that he had three or four reasonably lengthy telephone conversations with Mr Heke before the trial but did not have any real discussions other than that. Mr Heke was running his own case and Mr Moroney was simply there to advise on how he might do that. He discussed the defence of selfdefence with Mr Heke and asked him questions to get him through his evidence-in-chief. It is apparent from the trial transcript that Mr Moroney was active in other ways during the trial and was effective; he made an opening statement at Mr Heke’s request, raising the issue of self-defence and emphasising the importance to the defence case of the family context in which the incident had occurred. He undertook some of the cross-examination. He made a closing statement emphasising the importance of intent.

Police disclosure

[50] Mr Heke complained that he did not receive full disclosure and was therefore hampered in his preparation for trial. However, the issue of disclosure was raised pretrial at Mr Heke’s request and considered at a telephone conference on 27 April 2017. Mr Heke was concerned that he had not received full disclosure, including a copy of his video interview. The prosecutor, Mr Smith, had said he would do his best to provide a further copy^[13] and the Judge noted that “[e]veryone had fulfilled their obligations so far as disclosure was concerned in Mr Moroney’s view”. There is simply no factual basis for this complaint.
[51] In any event, the only issue said to have arisen from any lack of disclosure was Mr Heke’s claim to have been taken by surprise by James being called as a witness. The Judge rejected this assertion; he was satisfied that Mr Heke would not have been taken by surprise because James’ statement was part of the disclosure provided by the Crown prior to trial and, given that James had no memory of the actual attack (his last memory was of Mr Heke coming towards him while he was speaking on the phone to the police) it was difficult to see how Mr Heke could be prejudiced. Further, as Mr Lillico pointed out, James was named on a witness list filed by the Crown at the pre-trial callover on 26 January 2016 and the Crown had referred in its opening on the first day of trial to its intention to call James as a witness.
[52] Moreover, the only specific consequence that Mr Heke identified was that he himself was left to cross-examine James and was unprepared for that task, as the numerous objections by the Crown and interjections by the Court recorded in the notes of evidence show. Under s 95 of the Evidence Act 2006 a selfrepresented party’s ability to cross examine certain witnesses is restricted. Relevantly, subsection (1)(a) is an absolute bar to a defendant cross-examining the complainant in proceedings concerning family violence: ^[14]

(1) A defendant in a sexual case or a defendant in or a party to criminal or civil proceedings concerning [family violence] or harassment, is not entitled to personally cross-examine—

(a) a complainant or a party who has made the allegations [of family violence] or harassment ...

...

(5) A defendant or party to a proceeding who, under this section, is precluded from personally cross-examining a witness may have his or her questions put to the witness by—

(a) a lawyer engaged by the defendants; or

(b) if the defendant is unrepresented and fails or refuses to engage a lawyer for the purpose within a reasonable time specified by the Judge, a person appointed by the Judge for the purpose.

[53] “Family violence” is defined in s 9 of the Family Violence Act 2018 (FVA). While the FVA is not yet in force, the transitional provisions in the Evidence Act make any reference to the FVA a reference to the corresponding provisions in the Domestic Violence Act 1995 (DVA).^[15] Mr Heke’s offending against James was “domestic violence” as per s 3 of the DVA. Mr Heke therefore should not have been permitted to crossexamine James. This error appears to have gone unnoticed by both the Judge and Mr Moroney. However, it could only lead to a miscarriage of justice if it created a real risk that the outcome of the trial was affected.^[16] We are in no doubt that there was no such risk.
[54] A review of the cross-examination shows that, while there were some interjections by the Judge, Mr Heke conducted a reasonably coherent crossexamination directed mainly towards the situation leading up to the offending. He directed some questions towards the offending itself but made little headway because James had no recollection beyond getting out of his car and being confronted with Mr Heke. Because of his limited recall, James’ evidence had no real effect on either the Crown case or the defence that Mr Heke was advancing. As a result, even if Mr Heke’s cross-examination of James was the work of an unskilled defendant in person, it had limited scope to affect the trial. This was the reason for the Judge rejecting Mr Heke’s claim to have been taken by surprise as a reason to adjourn the trial. On the other hand, the video recordings, the eye-witness evidence and James’ injuries meant that the evidence against Mr Heke was overwhelming.
[55] We agree that in these circumstances there is no basis on which Mr Heke could say that a lack of disclosure had undermined the fairness of the trial.

Pre-trial issue: admission of the cell phone video clips

[56] Pearl’s teenage children, Ashley Kovalyov and Petr Kovalyov, took videos of Mr Heke’s assault on James on their cell phones. The Crown sought orders that the footage (which had been downloaded from cell phones onto a USB stick and converted to a DVD) be admitted. Mr Heke, then represented by Mr Blaikie, opposed the application. In his decision, Judge Paul recorded the fact that: ^[17]

Mr Heke, along with his counsel and the Crown counsel, have viewed the cellphone footage and the downloaded recordings and they quite properly concede that the cell phone recording and the downloaded copy are the same.

The issue Mr Heke has with those recordings is he believes they may well have been edited prior to the cellphones being uplifted and the recordings made by the police.

[57] The Judge held that Mr Heke’s concern was one that could be explored with the witnesses who took the recordings and be the subject of defendant evidence if appropriate but that the recordings were admissible. However, the Judge made a note on the Court file requiring the Crown to enquire with the Digital Forensics Unit (previously known as the Electronic Crime Laboratory) whether it could say whether the footage had been edited:

Crown to make inquiries with Crime Lab as to whether the Lab can answer whether footage on the phones being edited or deleted. To advise Detective prior to next C/O. See Minute 5. Crown to obtain from Crime Lab an operable copy of footage and disclose to defence counsel.

[58] Mr Heke was never provided with information from the Crime Lab. We were advised that the police had arranged for the phones to be analysed for evidence of editing before the trial; the Crown holds an email dated 23 August 2017 stating that “[t]he first phone does not show any editing software or deleted videos on it and they are in the process of analysing the second phone and it should be done by day’s end”. The Crown acknowledge that this information should have been provided to Mr Heke pre-trial.
[59] The makers of the video recordings were not called as witnesses. Instead, the footage was played to the jury by a police officer, Detective Senior Sergeant Rhys Johnson, who confirmed that he received it from another police officer, Constable Christopher Bolger. Constable Bolger gave evidence of attending the scene, being shown footage on a cellphone taken by one of the occupants, as a result of which he immediately arrested Mr Heke. He requested that the footage on the phones (two recordings had been made) be uploaded onto a computer so that he could transfer them onto a USB stick for conversion into the DVD that was played in court.
[60] Mr Hewson submitted that, as a result of the Crown failing to call the makers of the video recordings, there was no continuous chain of custody shown, which is true. It is evident that the Judge was alive to this issue and ensured that Mr Heke was given the opportunity to challenge the evidence on that ground. After Constable Bolger had given evidence of how he obtained the video recordings he described uplifting a piece of wood from the scene, photographs of which were produced. The prosecutor, Mr Smith, sought to replay the video so that Constable Bolger could confirm that the wood the officer had uplifted was that visible in the video recordings. The Judge then addressed Mr Heke:

The Court: Well Mr Heke, the Crown have got to prove that footage that the constable saw was the footage that was taken by one of the cameras inside the house which has been shown to the jury, but will require showing this footage again. Are you challenging that this is at least some of the footage that was taken on the camera? What I don’t want is, Mr Heke, is this to be shown to the jury some 10 or 12 times during this trial.

Mr Heke: So is that the one that we have just seen?

The Court: Yes.

Mr Heke: And I believe that’s footage taken by – by the police.

The Court: Well, no, by the people in the house and it was given to the police.

Mr Heke: Oh, that’s going to –

The Court: Do you want to have a quick, quiet chat to – otherwise we’ll just play it Mr Heke.

Mr Moroney: I can advise the Court, Sir, that Mr Heke does accept that that footage was taken from inside the house by someone inside the house.

The Court: And later given to this constable?

Mr Moroney: And later given to the constable.

[61] We infer from the transcript that Mr Heke did confer with Mr Moroney before Mr Moroney responded on Mr Heke’s behalf. Later, Mr Heke asked Constable Bolger in cross-examination whether he thought that the cellphone recordings had been partly deleted but the officer considered he did not have the expertise to answer that question.
[62] Mr Heke also asked Detective Johnson whether he thought the video actually showed contact between the wood and James’ head, apparently in an effort to advance the theory that he did not actually strike James but that James had effectively run into the wood. The officer said that he thought the video clearly showed that contact.
[63] It is unsatisfactory that the police failed have the forensic analysis of the cellphones undertaken and to have provided the results to Mr Heke before the trial, having been directed by the Court to do so. In addition, it is unsatisfactory in light of that direction that the Crown should have decided against calling the makers of the video recordings without addressing that at the outset of the trial. It is understandable that Mr Heke should be concerned about this aspect. However, we are satisfied that no prejudice resulted.
[64] Having raised this issue on appeal, Mr Heke failed to identify any specific concerns about the recordings by saying what parts of the recordings he thought were inaccurate or unreliable. Nor is there any basis for thinking that evidence could have emerged that might have altered what was shown on the video footage. To the contrary, the reported advice of the Crime Lab confirms that one of the recordings showed no sign of having been edited and since both recordings showed essentially the same scene it is reasonable to infer that the other recording had not been edited either. Further, if the matter were to be retried, the video recording that was examined would inevitably be admitted.
[65] Moreover, there was an eye witness whose testimony confirmed the accuracy of what was shown in the video recordings. Pearl gave evidence that she saw Mr Heke hit James with a piece of wood. She saw James fall face down, with no movement. She also said that she had seen the cell phone recordings. Pearl’s account, brief though it was, meant that there was no realistic possibility that the cell phone recordings were not an accurate record of what happened.
[66] Finally, the fact that Constable Bolger considered that he had grounds to arrest Mr Heke immediately after viewing the cell phone recordings tells strongly against any alteration to the recording the half hour between that time and when the officer returned to uplift the USB stick.
[67] In these circumstances it is simply not tenable to argue that the failure to call the makers of the recordings could have made any difference to Mr Heke’s position at trial.

Pre-trial issue: mode of evidence

[68] The Crown applied for an order that the evidence-in-chief of a witness to the assault, Richard Baker, be adduced by way of his evidential video interview and that cross-examination be conducted by way of close circuit television. Mr Baker is the nephew of Mr Heke and James. The ground for the application was that Mr Baker, although an adult, was intellectually impaired.
[69] Mr Blaikie unsuccessfully opposed the application on Mr Heke’s behalf.^[18] In the end, however, the Crown did not adduce the evidence of Mr Baker’s evidential video interview nor call him to give evidence. There was no evidence before us as to what Mr Baker had said in his evidential video interview. It was suggested that one of the video recordings may have been taken by Mr Baker but that is not clear from the evidence. The fact that he did not give evidence effectively removes this issue as an arguable ground of appeal.

Admissibility of police interview

[70] On the second day of the trial Mr Moroney raised an issue about the admissibility of parts of Mr Heke’s police interview. The Judge expressed the same concern, namely that the detective had cross-examined Mr Heke in breach of the Chief Justice’s practice note on police questioning.^[19] The prosecutor, Mr Smith, Mr Moroney and Mr Heke agreed as to what deletions would be made and these were recorded by the Judge who commented that he held the same view and would have made a ruling to that effect if necessary.^[20]
[71] Mr Hewson submitted that the admissibility of the video interview was a matter that ought properly to have been dealt with at the pre-trial stage and the failure to do so bore upon Mr Heke’s representation. Mr Hewson did not, however, identify any specific prejudice that may have arisen from the failure to identify the problem with the police interview earlier. We are satisfied that, as a result of Mr Moroney’s diligence, the matter was properly dealt with and no prejudice arose from the fact that this did not occur until the second day of the trial rather than at the pretrial stage.

Inability to brief potential witnesses

[72] Mr Hewson submitted that lack of representation meant that there was no preparation or interviewing of witnesses who might have been called by the defence. Mr Heke had been in custody following an alleged bail breach from 29 July 2016 and on EM bail on strict conditions from 30 March 2017. He argued that there were a number of potential witnesses who could have assisted Mr Heke’s case at trial. These included:

• (a) members of Mr Heke’s family involved with Mrs Heke’s admission to hospital;
• (b) Whangarei Hospital staff as to the process undertaken for the release of Mrs Heke and her care arrangements;
• (c) persons that Mr Heke claims to have spoken with before going to Pearl’s house on 4 September 2015, including personnel at the police station;
• (d) staff at the Kaikohe Pharmacy where James had been prior to arriving at Pearl’s address; and
• (e) confirmation from the Ministry of Social Development for the care arrangements put in place for Mrs Heke prior to her admission to hospital.

[73] The difficulty with this submission is that Mr Heke has not provided an affidavit from any specific witness nor even identified the evidence that any specific witness might have given. None appear to have been able to give evidence touching on the essential questions for the jury, namely whether Mr Heke struck James and what his intention was. There is, therefore, no basis on which to find that Mr Heke was prejudiced by not being able to brief these witnesses.

Inability to pursue plea negotiations

[74] Mr Hewson argued that there was never any realistic assessment by previous counsel of the defence of self-defence that Mr Heke wanted to advance, nor any consideration given as to what other issues could be emphasised either at trial or in discussions with the Crown pre-trial in an effort to resolve the matter. Specifically, Mr Hewson suggested that the issue of intent ought to have been the focus of the defence given Mr Heke’s stated position that he never intended to injure his brother so badly. He proposed that with the benefit of counsel, a better assessment could have been made of how the defence could have been run and an effort made to negotiate a change in the charge from s 188(1), which carries a maximum term of 14 years’ imprisonment to s 188(2), which carries a maximum term of seven years’ imprisonment. The critical difference was the intent, with the latter only requiring an intent to injure rather than the intent to cause grievous bodily harm required by the former.
[75] We see this approach as essentially speculative. There is no basis for thinking that the Crown would have countenanced a change in the charge. The reason is selfevident; even though Mr Moroney put intent squarely in issue and the Judge directed on it clearly, including reminding the jury of Mr Heke’s evidence that he did not intend to harm James, the video evidence provided a compelling basis from which to infer that Mr Heke had the requisite intent. In the circumstances it seems highly unlikely that any attempt by Mr Heke to secure an amendment in the charge would have been successful.

The issue of intent was not adequately addressed at trial

[76] Allied to the previous point, Mr Hewson argued that Mr Heke had wrongly focused on self-defence, which the Judge took from the jury, rather than the real issue which was intent. When Mr Heke gave evidence, however, he was led by Mr Moroney and gave a coherent account of the incident and said plainly that he had no intention of inflicting harm on James.^[21]
[77] Mr Moroney identified intent as an issue and emphasised it in his closing statement to the jury. The Judge also identified this as the main issue for the jury. Question 3 of the Question Trail was directed specifically to whether, when Mr Heke hit James, he intended to cause grievous bodily harm. In his summing-up the Judge talked about proving intent through drawing inferences and recorded Mr Heke’s position:

[18] Well Mr Heke says, “No that was never my intention. I was never attempting to seriously hurt my brother, or indeed hurt my brother at all.” Mr Moroney said to you, “Well you’ve first got to look at why he went there, not to attack anyone, he went there to get his mum. He didn’t take any weapon with him at all. He told you when he gave evidence, that is Mr Heke”, said Mr Moroney, “that he didn’t intend to harm his brother in any way, when he took the action that he did which caused the bit of 4 x 2 to contact with Mr James Heke’s head”. As Mr Moroney said that is the key question for you to answer, did he intend to cause it. Putting aside all sympathy and prejudice is that an inference you can safely draw? If you think that what he told you is reasonably possible, reasonably or might be true then, of course, you would have reasonable doubt, but it has to be reasonably possible and that is where Mr Moroney said you should focus.

[78] It is not tenable to say that the issue of intent was not fairly before the jury nor that the jury was not properly directed on it.

Cumulative effect of errors

[79] We agree that there were some errors in the trial. Mr Heke was not provided with the Crime Lab information, contrary to the Judge’s specific direction. He was permitted to cross-examine family members contrary to s 95 of the Evidence Act. The chain of custody relating to the video recordings was not proven. Mr Heke’s police video interview should have been edited before the trial. But we are nevertheless satisfied that the trial was fair.
[80] First, the only real issue for the jury was whether Mr Heke intended to cause grievous bodily harm. Mr Heke gave evidence and was clear that he did not intend to harm James. He was able to advance his theories of the case, namely self-defence and the suggestion that he had not actually hit James or that James had moved forward himself. But the evidence of the eye witness and the cell phone recordings meant that these claims were not tenable. The Judge properly took self-defence away from the jury. The other possible scenarios would inevitably be rejected in light of the videos.
[81] Secondly, Mr Heke had the benefit of very effective counsel assisting. Mr Moroney put Mr Heke’s position to the jury clearly. The Judge reinforced Mr Moroney’s address, including reading out the critical passage from Mr Heke’s evidence-in-chief. This was a straightforward trial with a compelling Crown case in which Mr Heke’s account was bound to be rejected. It cannot reasonably be said that there was any other possible outcome, regardless of whether Mr Heke had counsel or not.

Appeal against sentence

Sentencing in the District Court

[82] At sentencing, Mr Heke was unrepresented, though Mr Moroney appeared again in his capacity as amicus. The Judge heard from one of Mr Heke’s sisters, Violet Heke, and his niece, Hope Ambrose, in support of Mr Heke. It was evident from the Judge’s sentencing notes that a number of other family members were present and the Judge was concerned to recognise the familial context in which the offending had occurred.
[83] The Judge referred first to the guideline judgment R v Taueki^[22] and said:^[23]

[14] Factors I take into account in your case are these.

(a) Serious injury. James suffered a fractured skull. As I have said his injury was life threatening. He will have ongoing difficulties.
(b) Use of a weapon. This was a piece of 4 x 2 swung full force which connected with James’ head. It was not a tap as the jury found as you tried to convince them it was.
(c) Attack to the head. You quite deliberately struck him on the side of the head.
(d) It occurred at Pearl’s home where you were not welcome. They had closed the curtains, locked the doors, told you to go.
(e) Provocation. There was no provocation. You were just angry and not getting your way.
[84] The Judge considered that these factors produced three to four aggravating factors for the purposes of Taueki, bringing the offending within the top of band two, bottom of band three.^[24] On that basis he took a starting point of 10 years.^[25]
[85] Noting that there were no aggravating factors and that Mr Heke’s previous convictions were historic, with none for serious violence, the Judge identified as mitigating factors the fact that Mr Heke had been on EM bail for around eight months and had shown some remorse. The Judge also noted that Mr Heke had been willing to attend restorative justice, but that James did not wish to participate in that. The Judge considered that no minimum period of imprisonment was required. The Judge then concluded:^[26]

As Mr Moroney quite rightly submitted to me this is an extremely difficult sentencing exercise. On the one hand I must follow the law. There is a real victim, your brother. He almost died. On the other there is the background. You are now remorseful. Your lack of previous violent offending.

From a start point of 10 years I am prepared exercising [sic] my judgment to allow you two years’ discount, 20 percent. Some may see that as extremely high. In my view, however, the justice of this case requires a sentence of eight years which is the absolute minimum, in my view, that I can impose.

Appeal

[86] Mr Hewson submitted that the Judge took a formulaic approach to the aggravating factors, which led to too high a starting point. He argued that, viewed overall, and against the background of the offending, a starting point at the lower end of band two would have been available.
[87] Mr Hewson submitted that the true nature of the offending was a spontaneous incident involving a single blow from a weapon picked up at the scene with Mr Heke immediately desisting after that single blow. He argued that there was an element of double counting in the Judge’s treatment of the serious injury, use of a weapon and attack to the head as three separate aggravating features. In Mr Hewson’s submission an attack to the head with such a weapon would inevitably result in serious injury.
[88] Mr Hewson further submitted that the fact that the offending occurred at Pearl’s house was a neutral factor, not an aggravating factor. It was not a home invasion and the fact that Mr Heke had been told he was not welcome ought not to have been viewed as aggravating the offending. Finally, Mr Hewson submitted, that although the Judge correctly excluded provocation as a mitigating factor, the deceptive conduct surrounding Mrs Heke’s release from hospital could not be ignored when assessing Mr Heke’s purpose and motive leading up to the confrontation. Instead, the context in which the incident occurred, namely Mr Heke’s role as a long-time caregiver for his mother being peremptorily terminated and being denied access to his mother (against her wishes), ought to have been taken into account in assessing the overall level of criminality.
[89] Mr Lillico responded that the starting point of 10 years’ imprisonment was well within range, on the basis that there were four aggravating factors, bringing the offending within the top of band two or the bottom of band three of Taueki. He submitted, moreover, that the aggravating factors were “strongly present and amplified the seriousness of the offending”. He did not accept that Mr Heke’s presence on Pearl’s property was to be regarded as neutral; although it was not a home invasion in the sense of entering the house, Mr Heke knew that he was not supposed to be there. The house was locked, he was clearly and repeatedly told to leave, and he had already been trespassed from that address.
[90] We deal with the last point first; we do not see the location of the attack as a distinct aggravating feature. It was not a home invasion. Nor did it actually contribute to the nature of the offending. Mr Heke was clearly upset and wanted to engage with James over the issue and the video footage shows that he first approached James near the gate onto the property. The two men moved back and forth from there. The confrontation between Mr Heke and James could just as easily have occurred outside the gate. The fact that it happened on Pearl’s front lawn ought not be treated as a specific aggravating feature.
[91] We turn, then, to the other aggravating features identified by the Judge; the seriousness of the injury, use of a weapon and attack to the head. We agree that in cases such as this some of the aggravating features identified in Taueki as distinct may nevertheless overlap. This requires a careful assessment of the true nature of the offending. In Taueki this Court commented that:^[27]

Setting the appropriate starting point for sentencing will involve an assessment of a number of features which add to or reduce the seriousness of the conduct and the criminality involved. As the Court noted in Mako at para [34], it is the particular combination of those variable features which requires assessment for sentencing in each case.^[[28]] And at para [35] the court went on to say:

the task of placing the particular combination of features comprising an offence in its proper relative position on the scale of seriousness is a matter of judgment calling for the careful exercise of the sentencing discretion. Features of the offending requiring assessment cannot be exhaustively listed.

[92] And more recently, in Couper v R:^[29]

[s]tarting points must reflect the overall culpability, rather than a mathematical calculation of aggravating factors.

[93] Although the use of a weapon and an attack to the head are identified in Taueki as distinct aggravating features, they will often lead to serious injury. It is recognised that finding the appropriate starting point where these features are in combination requires care to ensure that potentially overlapping factors do not lead to an unduly high starting point. In Taueki this Court cautioned that care was needed not to double count the level of violence inflicted and the seriousness of the resultant injuries. In this case we agree that there was overlap of these three features but that the Judge appeared not to approach the matter in that way.
[94] There seems little by way of comparative cases. The Judge did not refer to any other similar cases and counsel did not refer us to any comparator cases either. There are, however, some cases that have similar features in which the issue of overlap has been considered.
[95] Ta’akimoeaka v Police was an unsuccessful appeal from a District Court sentence for an apparently unprovoked attack with a wheel brace in which the victim was struck once in the face and once on the head, causing severe concussion and a fractured skull with serious long term consequences.^[30] The District Court Judge took a starting point of eight years six months on the basis that the four aggravating features (use of a weapon, attack to the head, extreme violence and seriousness of the injuries) overlapped to some extent, with the offending overall falling within the top end of band two or perhaps the lower end of band three. On appeal, Wylie J agreed that the starting point was appropriate.
[96] In Couper v R, this Court affirmed a nine-year starting point for wounding with intent to cause grievous bodily harm during a sustained attack by multiple offenders in the context of a kidnapping during which the victim was hit about the head and body with a tyre iron and metal pole, causing damage to teeth and jaw bone and abrasions.^[31] There appeared to not be any serious brain injury.
[97] In Setu v R,^[32] the High Court affirmed a 10-year starting point for wounding with intent to cause grievous bodily harm, aggravated robbery and breach of a protection order. Mr Setu, armed with a large piece of wood, entered his former partner’s house in the belief her new partner was there. Finding her asleep next to one of her children he repeatedly struck her around the head. The District Court Judge found six aggravating features: premeditation; serious injury; use of a weapon; targeting the head; home invasion; and vulnerability of the victim. After an extensive review of cases with a starting point of around 10 years,^[33] Mander J considerd that that starting point was “stern”, but not outside the available range of sentences.^[34]
[98] We see Mr Heke’s culpability as lower than that in Setu, despite James’ injuries being far graver and having more serious long term consequences. Moreover, as the cases reviewed in Setu demonstrate, offending which justifies a 10-year starting point will often involve prolonged and/or group attacks. By comparison, the present case involved a single, unpremeditated blow to the head that had similar serious consequences for the victim as had occurred in Ta’akimoeaka. In our view a starting point of eight and a half years would have been appropriate.
[99] However, an error in the starting point will not necessarily result in a reduced sentence; it is the end result that matters. We therefore turn to the discount allowed by the Judge. A 20 per cent discount was given, though it was unclear how this discount was reached. The Judge observed that:^[35]

As Mr Moroney quite rightly submitted to me this is an extremely difficult sentencing exercise. On the one hand I must follow the law. There is a real victim, your brother. He almost died. On the other there is the background. You are now remorseful. Your lack of previous violent offending.

[100] It is difficult to identify a principled basis for the discount the Judge gave. The obvious factors justifying a discount were remorse, previous (relatively) good record and time spent on EM bail (eight months). A discount of 15% would have been reasonable for these factors. It is evident, however, that the Judge also took into account and put considerable weight on the family background that gave rise to the altercation between Mr Heke and his brother.
[101] Mr Hewson accepted that the facts of the case did not justify a discount on the ground of provocation but nevertheless urged that the familial context in which the offending occurred ought to be taken into account and that the Judge was right to do so.
[102] Our impression is that the discount was a compassionate response to the very unusual circumstances of the case and recognised the acute distress that Mr Heke was in when he assaulted his brother. Issues of rehabilitation in the context of the family relationships could also have been properly taken into account. Whilst the discount given was a significant one, we do not consider it outside the range available to the Judge. Retaining the 20% discount allowed by the Judge would result in an end sentence of six years and 10 months’ imprisonment. We consider that the sentence imposed was manifestly excessive.^[36]
[103] Accordingly, we allow the appeal against sentence. We quash the sentence of eight years’ imprisonment and substitute a sentence of six years and ten months’ imprisonment.

Result

[104] The application for an extension of time to file the notice of appeal is granted.
[105] The appeal against conviction is dismissed.
[106] The appeal against sentence is allowed.
[107] The sentence of eight years’ imprisonment is quashed and substituted with a sentence of six years and ten months’ imprisonment.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Heke [2017] NZDC 15920.

^[2] New Zealand Bill of Rights Act 1990, ss 24(c) and (f) and 25.

^[3] See R v Heke DC Kaikohe CRI-2015-088-2456, 11 May 2017 (Ruling No 3) at [24]. See Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392 at [64] for a discussion of the difference between these types of appointment.

^[4] At [47], citing R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [80]; R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [58]; Scurrah v R CA159/06, 7 August 2006 at [17]; and McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at [80]–[82].

^[5] R v Condon, above n 4.

^[6] In fact, as already noted, only four legal aid counsel were appointed.

^[7] R v Heke DC Kaikohe CRI-2015-088-2459, 1 May 2017 (Ruling No 1).

^[8] R v Heke [2017] NZDC 9088.

^[9] R v Heke, above n 3.

^[10] R v Condon v R, above n 4, at [80].

^[11] Chatha v R [2008] NZCA 547.

^[12] At [125].

^[13] A copy was included in the documents directed to be provided to Mr Heke by the Court.

^[14] Simon France (ed) Adams on Criminal Law – Evidence (online ed, Thomson Reuters) at [EA95.01(1)].

^[15] Evidence Act 2006, s 4(3).

^[16] Criminal Procedure Act 2011, s 232(4)(a); and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [27].

^[17] R v Heke [2016] NZDC 13748 at [2]–[3].

^[18] R v Heke [2016] NZDC 13731.

^[19] Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297, r 3.

^[20] R v Heke DC Kaikohe CRI-2017-088-2459, 2 May 2017 (Minute No 2).

^[21] Mr Heke also claimed that he was not preparing to hit James with the timber but merely standing and James “charged me while I was holding that timber”. Realistically, this was an account that the jury was bound to reject, given the video footage.

^[22] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[23] R v Heke, above n 1.

^[24] At [15].

^[25] At [16].

^[26] At [22]–[23].

^[27] R v Taueki, above n 22, at [28].

^[28] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

^[29] Couper v R [2017] NZCA 588 at [17].

^[30] Ta’akimoeaka v Police [2018] NZHC 68.

^[31] Couper v R, above n 29, at [19].

^[32] Setu v R [2017] NZHC 1839.

^[33] At [41]–[42], citing R v Falemaka [2016] NZDC 21827; Rowles v R [2016] NZCA 208; Shen v R [2017] NZCA 103; Hu v R [2011] NZCA 412; R v Heta HC Hamilton CRI-2010-019-5289, 12 May 2011; R v Emery [2012] NZHC 391; R v Grindrod HC Wellington CRI-2009-032-131, 11 September 2009; R v Walker [2016] NZHC 1076; Wairau v R [2015] NZCA 215; R v Singh [2016] NZHC 1666; R v Ae [2016] NZHC 965; and R v Walker [2015] NZHC 3214.

^[34] Setu v R, above n 32, at [53].

^[35] R v Heke, above n 1, at [22].

^[36] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].