HIINI v R [2020] NZCA 77

HIINI v R [2020] NZCA 77 [24 March 2020]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA131/2019[2020] NZCA 77BETWEEN KEPA KORE EREKANA HIINIAppellantAND THE QUEENRespondentHearing: 2 March 2020 (further material received 3 March 2020)Court: French, Dobson and Moore JJCounsel: G A Walsh and M J James for AppellantS K Barr for RespondentJudgment: 24 March 2020 at 9 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Hiini was convicted of sexual violation by unlawful sexual connection,following a jury trial presided over by Judge Marshall in the District Court. It wasa representative charge. The complainant was Mr Hiini's stepdaughter whom we shallcall T. She was aged between 9 and 10 years at the time of the alleged offending whichthe Crown claimed occurred between 10 January 2014 and 22 February 2015.[2] Mr Hiini had been tried together with his wife who was T's mother.The mother was facing separate charges of physical abuse against T and two otherdaughters M and A. The mother's offending was alleged to have occurred during thesame period as Mr Hiini's alleged sexual abuse of T as well as an earlier period.[3] Before trial, Mr Hiini had successfully opposed an application made bythe mother for severance.1 The Judge declined the mother's application on thegrounds that the alleged dysfunctional family dynamic was relevant to all charges.[4] Mr Hiini now appeals his conviction on the grounds that the Judge wronglyrefused to declare a mistrial following two separate incidents. The first incident arosewhen one of the daughters — not T — retracted her allegations. The second incidentwas when the mother part way through the trial pleaded guilty to the charges againsther. Mr Hiini argues that the two errors combined resulted in him receiving an unfairtrial and therefore a miscarriage of justice occurred.Retraction by daughter M[5] The defence for both Mr Hiini and his partner was that none of the allegedoffending had happened.[6] M was the oldest of the three sisters. She was a complainant in respect ofthe mother only but was also to give relevant background evidence supporting T'scomplaint against Mr Hiini of sexual abuse.[7] On the second day of the trial, counsel discovered that M had annotatedthe transcripts of her evidential interviews while she was watching the video forthe trial. The annotations were to the effect that she had been coached to tell lies bya caregiver who was looking after the three girls and that all the allegations in herevidential interview were false.1 R v Hiini [2019] NZDC 1783.[8] In light of this development, the Judge adjourned the trial for a half day toenable counsel to consider their positions. Counsel for Mr Hiini and the mother thenboth asked the Judge to abort the trial in order to enable them to obtain furtherdisclosure and conduct further inquiries.[9] The Judge declined the application and the trial proceeded.2 M duly gaveevidence retracting her allegations.[10] On appeal, Mr Walsh who represented Mr Hiini at trial, acknowledged he hadbeen able to cross-examine M about her self-confessed lies. However, in hissubmission, the Judge was wrong to force him to continue without allowing himthe opportunity to look for new evidence including for example information aboutthe caregiver and her possible influence over the other two girls. In short, Mr Walshcontended he had been unfairly denied the opportunity of being better prepared tochallenge M and advance an effective defence.[11] We do not accept those submissions. It is over a year since the trial and, ifthere was more information to be obtained, it could and should have been obtained bynow. No new evidence was put before us and we are not prepared to speculate. As itwas, Mr Walsh was able at the trial to get mileage out of M's retractions in his cross-examination and in closing. He did not identify with any specificity any additionalquestions he would ask M if there were to be a retrial.[12] There is the further problem that it appears the jury was unaware that unlikeher two sisters who had come up to brief, M had returned to live with her mother andMr Hiini before the trial. As discussed below, on a retrial assuming M again retractedher allegations , the new jury would be made aware of her living arrangements andalso made aware that the mother had pleaded guilty to charges involving violenceagainst all three children, thereby negating M's retractions.2 R v Hiini [2019] NZDC 2888.Guilty pleas by mother[13] The mother was facing 14 charges of various types of assault, including assaulton a child, assault with a weapon and assault with intent to injure. Seven ofthe 14 charges related to M, three related to A and four charges concerned T.[14] Part-way through the Crown case, a fresh charge sheet in relation to the motherwas prepared and she pleaded guilty to one charge of assault with a weapon and onecharge of assault on a child on a representative basis in respect of each of the threecomplainants — that is, six charges in total.[15] Mr Walsh described the effect of this on Mr Hiini's defence as "having the rugpulled out from under your feet". He submitted that although Mr Hiini was not jointlycharged with any of the mother's acts of violence, her guilty pleas were neverthelesshighly prejudicial to him because they significantly undermined his defence thatnothing happened. As already discussed, they also significantly undermined M'sretractions which would otherwise have assisted Mr Hiini. Mr Walsh acknowledgedthe Judge had told the jury about the limited relevance of the guilty pleas to the chargesagainst Mr Hiini but argued that no direction no matter how strongly worded wascapable of overcoming the prejudice. The jury he submitted would inevitably betainted.[16] These submissions would only have force if, on a retrial of the charge againstMr Hiini, evidence of the mother's violent offending would be irrelevant and thereforeinadmissible. However, as pointed out by the Crown, substantively the same evidencewould inevitably end up before a new jury. That is because the evidence bears onthe family dynamics of the household where the sexual abuse happened and becauseit provides an explanation as to why T did not complain to her mother about the sexualabuse and seek help.[17] As the Crown also points out, if M was again to give evidence that her originalevidential interview in so far as it related to Mr Hiini was fabricated, she would likelybe declared a hostile witness and the prosecution permitted to elicit that she had madesimilar claims of fabrication about the assaults committed by her mother and that thoseclaims had been proved to be false.[18] We note too that the jury acquitted Mr Hiini of two other representative chargesrelating to the period between February 2015 and January 2017. According tothe Crown, the most likely explanation for the acquittals is an inconsistency in T'saccount as to when the sexual offending ended. For present purposes, the fact of theacquittals suggests that contrary to Mr Walsh's submissions, the jury could not havebeen overwhelmed by the retractions and the guilty pleas but diligently considered theevidence in relation to each charge as directed by the Judge.Outcome[19] We are satisfied the Judge was correct to refuse to abort the trial. There hasbeen no miscarriage of justice.[20] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent