MIHAKA v NEW ZEALAND POLICE [2021] NZCA 555

MIHAKA v NEW ZEALAND POLICE [2021] NZCA 555 [21 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA377/2015[2021] NZCA 555BETWEEN TE RINGA MANGU NATHAN MIHAKAApplicantAND NEW ZEALAND POLICERespondentHearing: 18 October 2021Court: Kós P and Clifford JCounsel: Applicant in person (with Ms K Raue, agent) J E Mildenhall for RespondentJudgment: 21 October 2021 at 10 amJUDGMENT OF THE COURTThe application for recall of judgment is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] On Sunday 29 June 2014, Mr Mihaka misplaced the keys to his flat. A neighbour, Mr Dickie, took him in. They drank some wine together from a cask belonging to Mr Dickie. Mr Mihaka slept on the couch; Mr Dickie in his bedroom.[2] It is common ground there was some sort of confrontation the following morning. Mr Dickie says he had made coffee for them both, touched Mr Mihaka to wake him to ask if he would like some, and shortly after that Mr Mihaka grabbed him by the throat and throttled him until he managed to break free. Mr Mihaka on the otherhand says Mr Dickie hit him, or tapped him hard, that he took offence and pushed past him to leave, but that he did not attempt to strangle him.[3] Mr Mihaka was charged with assault. He represented himself at trial in April 2015. He cross-examined Mr Dickie (and one police witness), gave evidence himself, and called two witnesses of his own. Judge Kelly however found Mr Dickie's evidence was credible, and that Mr Mihaka's was not. She said his evidence was "unconvincing and unworthy of belief". 1 She convicted him of assault and sentenced him to 80 hours' community work.2[4] In June 2015 the High Court dismissed his conviction appeal but allowed his sentence appeal, substituting a conviction and discharge. 3 Mr Mihaka then applied to this Court for leave out of time for a second conviction appeal. An extension of time was given, but leave was declined in November 2015. 4 The Court found there was no matter of general importance worthy of a second appeal, nor was there an argument available that a miscarriage of justice had occurred.[5] In October 2016 Mr Mihaka sought recall of the decision declining his application for leave to bring a second appeal. For reasons that are not material to the outcome of the application, it was not progressed at that time. Now it is before us at last, and we have heard Ms Raue speak eloquently on Mr Mihaka's behalf.[6] The principal argument made for recall is that Mr Mihaka did not receive proper disclosure by the police. Only now has he seen the full file, and that shows a statement by Mr Dickie to the effect that the assault took place not on the morning of 30 June 2014, but rather on the night of 29 June. Had Mr Mihaka appreciated that discrepancy, he could have used it in cross-examination to challenge the credibility of Mr Dickie.[7] There are two difficulties with this argument.1 Police v Mihaka [2015] NZDC 6404 at [21].2 Police v Mihaka [2015] NZDC 6474.3 Mihaka v Police [2015] NZHC 1318.4 Mihaka v R [2015] NZCA 560.[8] The first is that the evidence of Sgt Limbrey demonstrates that electronic disclosure of Mr Dickie's statement was given by email to an address used by Mr Mihaka on 3 December 2014. In addition, it appears likely the material was also posted to him. Mr Mihaka says it did not reach him, and he did not see the email, but if so, it is remarkable that capable counsel who acted for him on the appeal and application for leave for a second appeal did not identify the failure to provide disclosure. There is no evidence from them before us. However, we will assume for present purposes that Mr Mihaka is right about full disclosure not being given.[9] The second difficulty with the argument is that non-disclosure of Mr Dickie's statement could not have made a material difference to the outcome at trial. The date and time of the confrontation are not elements of the offence. However, both Mr Dickie and Mr Mihaka gave evidence that it occurred in the morning of 30 June. The fact that in an earlier statement Mr Dickie dated it to the night before might indeed have been used to cast doubt on Mr Dickie's memory, and therefore credibility, despite the fact the timing was now common ground. But Mr Dickie readily admitted under cross-examination that medication used by him impaired his memory. The discrepancy demonstrated by the statement adds nothing to that, and by the time Mr Mihaka had finished giving evidence the date and approximate time were no longer in doubt. Ms Raue suggested that if the incident had been the previous evening, there could be added significance in Mr Mihaka being woken suddenly, causing him to panic. But on either account, Mr Mihaka was woken from sleep. Whether that occurred in the evening or next morning would appear neither here nor there.[10] Ms Raue's remaining point, concerning the disadvantages faced by a litigant in person, is one we have considerable general sympathy for. But it was the subject of the previous unsuccessful application and judgment.5 It cannot be revisited now as the basis for recall.[11] It follows that this is not a case where for special reasons justice requires the previous judgment of this Court to be recalled, within the principles stated by the Supreme Court in Uhrle v R.65 At [23]–[26].6 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.Result[12] The application for recall of judgment is declined.Solicitors:Crown Law Office, Wellington for Respondent