HONITANA v R CA262/2014 [2015] NZCA 91

HONITANA v R CA262/2014 [2015] NZCA 91 [25 March 2015]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S203 OF THE CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHE RPUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATIONIN LAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA262/2014[2015] NZCA 91BETWEEN MAKOARE HONITANAAppellantAND THE QUEENRespondentCourt: Wild, French and Cooper JJCounsel: CWJ Stevenson for AppellantM G Wilkinson for RespondentJudgment:(On the papers)25 March 2015 at 9.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The appellant's conviction for sexual violation by unlawful sexualconnection is quashed.C A new trial is ordered.D An order is made prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet orother publicly available database until final disposition of retrial. Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] Following a trial in the Wellington District Court in February 2014 Mr Honitana was found guilty by the jury on one count of unlawful sexual connection. The jury were unable to reach a verdict on a charge of rape arising out of the same incident and Mr Honitana is to face a new trial on that charge later this year.[2] On 16 May 2014 Mr Honitana filed a notice of appeal against his conviction.[3] On 17 March this year the Crown filed a memorandum advising it hasdecided not to oppose this appeal, and agrees Mr Honitana's conviction should bequashed and a new trial ordered. In that memorandum the Crown states:4. The Crown accepts [counsel who represented the appellant in his trial] made an error capable of causing a miscarriage when he introduced, in closing, an entirely new defence theory which was inconsistent with the way the case had been put. There was no evidential foundation for the new theory, and the Judge was appropriately critical in his summing up.5. Ordinarily the Crown would argue that, despite the error, the appellant has not demonstrated that a miscarriage of justice arose. It does not propose to do so in this case for at least two reasons. First, the error was a serious one. It is accepted the appellant has a good argument. Second, and pragmatically, the complainant will be required to give evidence about the whole episode (including the events that gave rise to the present conviction) at the second trial regardless of the outcome of this appeal.[4] We agree with the Crown's assessment.[5] Accordingly, the appeal is allowed. The conviction entered against Mr Honitana for unlawful sexual connection is quashed. A new trial is ordered.[6] For fair trial reasons, we make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent