Hill v R DC Manukau CRI-2013-092-9712 [2014] NZDC 479 (12 March 2014)

Last Updated: 20 February 2024

IN THE DISTRICT COURT AT MANUKAU

CRI-2013-092-009712

[ ] HILL Applicant

v

THE QUEEN Respondent

Hearing:	24 February 2014
Appearances:	Mr S Tait for the Applicant Ms A Boberg for the Respondent (the Crown)
Judgment:	12 March 2014

DECISION OF JUDGE J C MOSES ON APPLICATION FOR DISCHARGE PURSUANT TO S 147 CRIMINAL PROCEDURE ACT 2011

[1] Mr Hill is due to stand trial, commencing 3 November 2014, on two charges of wounding with intent to cause grievous bodily harm. The charges relate to an incident that occurred on 7 July 2013. The Crown case is that the applicant was one of four persons who kicked and punched the two complainants, [J T] and [T M], outside an address of 14 Everglade Drive, Manukau.

[2] Mr Hill applied to be discharged on both charges pursuant to s 347 Crimes Act 1961. Mr Tait, who represents the applicant, advised that he accepted the application should now be brought under s 147 of the Criminal Procedure Act 2011.

[3] He submits that there is insufficient evidence on which a properly directed jury could find Mr Hill guilty.

[ ] HILL Applicant v THE QUEEN Respondent DC CRI-2013-092-009712 [ 12 March 2014]

[4] The Crown relies on the evidence of two witnesses, who they say identified Mr Hill as being involved in the incident on 7 July 2013.

[5] The first witness is Mr Hausia Haufano. The Crown intend to lead evidence from this witness that he had seen Mr Hill at “Everglade” where the incident took place. Detective Constable Tuimaseve is to produce a photograph identification document and will give evidence that Mr Haufano identified the applicant from the photo identification document shown to him. This evidence places the applicant at the scene of the night in question.

[6] The second witness is Mr Desmond Karauna. Mr Karauna has to lead evidence identifying the applicant as being present on the night at “Everglade” and that, when shown the set of photographs, is recorded as saying “the photo looks old, as he has hair in it. On the night he had a bald haircut”. Mr Karauna described four persons approaching him. One of those persons at paragraph 30 of his statement he describes as “the third male was wearing a grey hoody and had an almost bald haircut. I’ll call him baldy guy”. In his statement, Mr Karauna describes the baldy guy and three others approaching them. After one of Mr Karauna’s associates had been knocked to the ground by someone he did not see, he goes on to describe at paragraphs 46, 51, 58 and 59 “the four guys” starting to attack us. He then goes on to describe the four guys taking turns to kick [J T] in the head, which were full power kicks. He then describes another associate, [T M] , who had jumped on [J T] to protect him from the kicks and that the four guys then started raining punches and kicks into [T M] as well. He describes the four guys continuing to punch and kick [T M] as he protected [J T] , who had not regained consciousness.

[7] Mr Karauna goes on in his statement to give a reasonably full description of the person he had described as “baldy guy”. The Crown will clearly be reliant on his identification of the applicant as being this male.

[8] The case law relevant to such an application, which was previously under s 347 Crimes Act, establishes that the crucial question in all cases is whether as a matter of law, a properly directed jury could reasonably convict on the evidence

properly admissible. Questions of credibility and weight must, in all but exceptional cases, be determined by the jury.

[9] For the purposes of this decision, the evidence must be given the construction most favourable to the Crown and if there is evidence from which a jury could reasonable draw an inference of guilt, I should not intervene.

[10] Mr Tait raises criticisms he has of Detective Tuimaseve who, in his initial statement provided failed to indicate that Mr Haufano had identified the applicant from the photo identification board. This is something which Mr Tait will be able to submit to a jury. In my view, if a jury accepted the evidence of Mr Haufano and the evidence of Mr Kaurana that the defendant was the person he has described as “baldy” and that they accepted the Crown’s case that the applicant was a party to the attack on the two complainants, then a jury, in my view, could properly convict the applicant of these charges. On the evidence before me today, I find that there is sufficient evidence on which a jury could properly convict the applicant and the application is dismissed.

Judge J C Moses

District Court Judge