PATSY REDDY, Governor-General

ORDER IN COUNCIL

At Wellington this 9th day of March 2020

Present:

Her Excellency the Governor-General in Council

Her Excellency the Governor-General, acting under section 406(1)(a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers to the Court of Appeal the question of the following conviction of James Leonard Toia, entered in the District Court at Auckland on 4 April 2008: assault by a male on a female contrary to section 194(b) of the Crimes Act 1961.

The background to and reason for the reference appear in the Schedule.

Schedule

1. Interpretation

In this Schedule—

applicant means James Leonard Toia

complainant means Jaewyn Williams.

Background

2. Trial and Appeal

(1) On 4 April 2008, the applicant was convicted in the District Court at Auckland of assault by a male on a female contrary to section 194(b) of the Crimes Act 1961.

(2) The applicant’s conviction arose from a domestic incident between the applicant and the complainant that occurred on 7 February 2007.

(3) The complainant made a complaint to Police alleging that the applicant had assaulted her.

(4) The applicant was interviewed by Police. The applicant accepted that there had been an incident between the applicant and the complainant but said that the complainant was the aggressor and that the applicant had acted to restrain the complainant.

(5) In November 2007, an associate of the complainant, Theresa Nielsen, made a statement to Police that she had seen the complainant on the day following the incident, 8 February 2007, and observed injuries that were consistent with the complainant’s version of events.

(6) The applicant stood trial at the District Court in Auckland in April 2008. The complainant and Ms Nielsen gave evidence for the Crown. The applicant relied on the defence of self-defence. On conviction, the applicant was sentenced to pay a fine of $750.

(7) The applicant appealed his conviction to the Court of Appeal on the principal ground that inadmissible evidence had been given at trial, which led to a miscarriage of justice. On 4 September 2008, the Court of Appeal dismissed the applicant’s appeal.

3. Application for Exercise of the Royal Prerogative of Mercy

(1) On 29 June 2012, the applicant applied to the Governor-General for the exercise of the Royal prerogative of mercy in respect of the conviction described in clause 2(1).

(2) The applicant submitted that his conviction was unsafe because Ms Nielsen had sworn an affidavit, dated 22 May 2012, retracting the evidence she gave at the applicant’s trial about witnessing injuries to the complainant on the day following the incident.

(3) The applicant provided the affidavit of Ms Nielsen, in which she deposed that—

(a) her statement to Police that she had seen the complainant on the day following the incident and observed injuries to her was false:

(b) her evidence at the applicant’s trial that she had seen the complainant on the day following the incident and observed injuries to her was false:

(c) the complainant had asked her if she would tell Police that she had observed injuries and the complainant had “coached” her about what to say to make sure she had “her story straight”.

(4) The applicant submitted that Ms Nielsen’s evidence was crucial to his conviction as it had bolstered the complainant’s credibility and was the only independent corroboration of the complainant’s injuries.

4. Perjury Proceedings

(1) In 2013, the applicant brought a private prosecution against Ms Nielsen alleging that she had committed perjury at his trial contrary to section 108 of the Crimes Act 1961. The summary of facts alleged that the evidence that Ms Nielsen gave at the applicant’s trial about seeing the complainant on the day following the incident and observing injuries consistent with the complainant’s version of events was false and intended to mislead the court.

(2) Ms Nielsen pleaded guilty to the charge.

(3) On 9 May 2014, Ms Nielsen was convicted in the District Court at Auckland of one charge of perjury contrary to section 108 of the Crimes Act 1961 and, on 20 August 2014, was sentenced to 10 months’ home detention.

Reason for Reference

5. Reason

The reason for the reference is that the information referred to in clauses 3 and 4 indicates that evidence has become available since the applicant’s trial and appeal against conviction that could lead the Court of Appeal to conclude that a miscarriage of justice may have occurred.

MICHAEL WEBSTER, Clerk of the Executive Council.