TOIA v R [2020] NZCA 416

TOIA v R [2020] NZCA 416 [31 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA134/2020[2020] NZCA 416BETWEEN JAMES LEONARD TOIAAppellantAND THE QUEENRespondentHearing: 31 August 2020Court: Kós P, Wylie and Muir JJCounsel: D J Dufty for AppellantR K Thomson for RespondentJudgment: 31 August 2020 at 12.36 pmReasons: 14 September 2020JUDGMENT OF THE COURTA The appeal is allowed.B The conviction is set aside.C There is to be no retrial of the matter.D The fine and court costs paid by Mr Toia are to be reimbursed to him out ofthe Crown fund, together with interest calculated as if it were payable underthe Interest on Money Claims Act 2016.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] On 4 April 2008, the appellant, James Toia, was convicted following trial byjury in the District Court at Auckland on one charge of male assaults female.1 He wasfined the sum of $750 and ordered to pay court costs of $130.2[2] Mr Toia's conviction arose from a domestic incident. The complainant was hispartner at the time. At trial, the Crown relied in large part on the evidence of one ofthe complainant's friends. The friend gave evidence at trial that she sawthe complainant on the day following the alleged incident and observed injuries onthe complainant that were consistent with her version of events.[3] Mr Toia appealed his conviction to this Court, on the principal ground thatinadmissible evidence had been given by the complainant at trial, which had led toa miscarriage of justice. At this stage there was nothing to impugn the friend'sevidence, and it was not challenged on appeal. The appeal was dismissed.3[4] In May 2012, the friend swore an affidavit. She accepted that the evidence shegave at trial was false. She said that she had not observed any injuries onthe complainant. She said that the complainant was a friend, that she felt sorry for herand that, as a result, she sought to help her by lying to the police and when givingevidence in court.[5] In June 2012, Mr Toia applied to the Governor-General for the exercise of theRoyal prerogative of mercy.[6] The friend was convicted of perjury in August 2014, having entered a plea ofguilty to that charge. She was sentenced to 10 months' home detention.1 Crimes Act 1961, s 194(b).2 R v Toia DC Auckland CRI-2007-090-2230, 4 April 2008.3 R v Toia [2008] NZCA 343.[7] The Governor-General referred the matter to this Court in March 2020,pursuant to s 406(1)(a) of the Crimes Act 1961.[8] The Crown acknowledges the fresh evidence — namely the friend's swornaffidavit and her conviction for perjury. It accepts that this indicates that a miscarriageof justice may well have occurred, and that the appeal should be allowed.[9] The hearing of the appeal took place on 31 August 2020. We allowedthe appeal. We now give our reasons.Discussion[10] We are satisfied that there has been a miscarriage of justice, and thatthe conviction should be set aside. While the consequence would ordinarily bea retrial, we agree with the Crown that in the particular circumstances of this case,there is no public interest in such course. Twelve years have elapsed since the allegedincident. The alleged offending was of only moderate seriousness. Further, the freshevidence suggests that any further prosecution for the alleged offending would haveat best a limited prospect of success.Result[11] Accordingly, the appeal is allowed.[12] The conviction is set aside pursuant to s 233(2) of the Criminal Procedure Act2011.[13] Further, we direct that there is to be no retrial of the matter.[14] We order, pursuant to s 350 of the Criminal Procedure Act, that the fine andcourt costs paid by Mr Toia are to be reimbursed to him out of the Crown fund, togetherwith interest calculated as if it were payable under the Interest on Money Claims Act2016.Solicitors:Crown Law Office, Wellington for Respondent