Scribd
Upload
6 views5 pages

DRAFT - 28 April 2015: KUPA V R CA453/2014 (2015) NZCA 135 (29 April 2015)

The Court of Appeal of New Zealand dismissed Taite Hemi Kupa's appeal against his conviction for multiple counts of sexual offending and assault against children. The court found that the evidence of physical violence was relevant to the sexual charges, and the trial judge properly directed the jury regarding the admissibility of evidence. Ultimately, the court concluded that there was no miscarriage of justice in the trial proceedings.

Uploaded by

Yacob Yacobson
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
6 views5 pages

DRAFT - 28 April 2015: KUPA V R CA453/2014 (2015) NZCA 135 (29 April 2015)

The Court of Appeal of New Zealand dismissed Taite Hemi Kupa's appeal against his conviction for multiple counts of sexual offending and assault against children. The court found that the evidence of physical violence was relevant to the sexual charges, and the trial judge properly directed the jury regarding the admissibility of evidence. Ultimately, the court concluded that there was no miscarriage of justice in the trial proceedings.

Uploaded by

Yacob Yacobson
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 5

DRAFT – 28 April 2015

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS


OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL
JUSTICE ACT 1985.

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS


OF WITNESS(ES) UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF
THE CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA453/2014
[2015] NZCA 135

BETWEEN TAITE HEMI KUPA


Appellant

AND THE QUEEN


Respondent

Hearing: 4 March 2015

Court: Harrison, Fogarty and Dobson JJ

Counsel: L B Cordwell for Appellant


W Cathcart for Respondent

Judgment: 29 April 2015 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.


____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Taite Kupa was found guilty following a trial before Asher J and a jury in the
High Court at Whangarei of 11 counts of sexual offending against two young

KUPA V R CA453/2014 [2015] NZCA 135 [29 April 2015]


complainants – of oral sexual connection, digital penetration and anal penetration.
He was also found guilty of 10 charges of assault against six children under 14 years
of age. He was sentenced to a total term of 14 years and six months imprisonment
with a minimum period of imprisonment of seven years and three months.1

[2] Mr Kupa has filed an appeal against his conviction but not his sentence.
Mr Cordwell who did not appear for Mr Kupa at trial, advanced the appeal on two
related grounds: first, that trial counsel made a radical error in failing to apply to
sever the trial of the sexual charges from the assault charges; and, second, the trial
Judge erred in failing to exclude prejudicial and inadmissible evidence of the
physical assaults being heard together with the sexual charges.

[3] Mr Cordwell accepted in argument that it was unnecessary to pursue an


allegation of trial counsel error. The question is whether or not there was a
miscarriage of justice because either: trials of the charges were not severed or
inadmissible evidence was led at trial.

Background

[4] At the relevant times Mr Kupa and his wife were approved CYF caregivers.
All the complainants were living with them at the Kupas’ home in Tikipunga,
Northland at the time Mr Kupa allegedly offended against them.

[5] In defence of the assault charges Mr Kupa admitted to striking the children
by kicking their bottoms and pinching their ears. All the children accepted that
Mr Kupa hit them in order to control bad behaviour. His defence was that it was
necessary to apply force to them for disciplinary purposes.

[6] The Crown alleged that Mr Kupa sexually violated two of the young female
complainants. One was A whom he sexually violated on about three occasions in a
six week period in early 2013. The other was B whom he sexually violated on at
least three occasions over an 18 month period beginning in August 2011.

1
R v Kupa [2014] NZHC 1415 at [39]–[43].
[7] Mr Cordwell emphasised that the jury acquitted Mr Kupa on two counts of
unlawful sexual connection with A by anal penetration; and that neither A nor B
complained about the sexual offending when they first complained about the
physical assaults.

Decision

[8] In essence, the appeal comes down to one core issue. That is because
Mr Cordwell has focussed his argument on a proposition that the evidence on the sex
and assault charges was not cross-admissible as propensity evidence. He submitted
that is the only basis upon which the evidence on both sets of counts could have been
admissible at the same trial. In his submission, the differences between the two sets
of charges exclude any scope for cross-admissibility.

[9] Mr Cordwell emphasised that the violence offending occurred in the context
of Mr Kupa’s disciplining of the six children – his defence at trial focussed on
whether the level of force used was justifiable, sufficient to invoke a statutory
defence of reasonableness.2 By contrast the sexual offending centred on allegations
which if true made Mr Kupa’s conduct of the very worst kind, that is, extensive
sexual violation against vulnerable children in his care. He rightly pointed out that
the issue on the assault charges was whether force admittedly used was reasonable
whereas on the sexual charges it was whether the alleged events occurred.

[10] Thus, Mr Cordwell submitted, the assault charges disclosed no kind of


propensity relating to the sexual offending, creating an unfairly prejudicial effect on
Mr Kupa. He was forced to defend charges of assault on vulnerable children in the
same trial in which he was accused of sexually violating two of the same children.

[11] Moreover, Mr Cordwell submitted, the two sets of offending were not
interconnected and the probative value of the assault evidence was far outweighed by
its great prejudicial effect. He illustrated his point by saying that only A and B
would have been required to give evidence at both trials.

2
Crimes Act 1961, s 59.
[12] In view of the fact that all charges were heard together it is unnecessary for
us to address Mr Cordwell’s severance argument and in particular to determine
whether the prospective criteria for ordering severance apply. 3 Those criteria are
only relevant to the extent to which the trial may be characterised as unfair because
inadmissible evidence was tendered to support a charge or charges. The question is
whether the admission of the violence evidence in the same trial as the sex charges
gave rise to a miscarriage of justice.

[13] For the Crown Mr Cathcart did not contend that the evidence on each of the
two sets of charges was cross-admissible on the ground that it was of a propensity
nature. Instead he submitted that the evidence of Mr Kupa’s physical violence
towards all complainants in his care including A and B was directly relevant to a
climate of violence and abuse within which Mr Kupa was able to enforce his will
upon the two girls and administered physical violence under the guise of discipline.

[14] We agree with Mr Cathcart that the level of violence prevailing within the
household was relevant evidence to the sex charges because it inherently informed
the nature of Mr Kupa’s relationships with all complainants. It would have been
artificial to sever off or exclude such an important part of the factual narrative. In
that event, the jury would have been acting in a vacuum. We are satisfied that the
evidence of Mr Kupa’s violence towards all complainants, occurring at or around the
time of his sexual offending against the two girls, was directly relevant in this
context.4

[15] The only question then is whether Asher J properly directed the jury about the
admissibility of the evidence on the two sets of charges. Having reviewed his
detailed summing-up to the jury, we are satisfied that the Judge correctly directed the
jury to consider only the evidence relevant to each charge when emphasising that
Mr Kupa faced separate trials on each. Mr Cordwell did not argue otherwise.

[16] We are not satisfied that Mr Kupa’s trial miscarried.

3
Crimes Act, s 340. For proceedings which commenced from 1 July 2013, see the Criminal
Procedure Act 2011, s 138.
4
Perkins v R [2011] NZCA 665 at [20]–[21].
Result

[17] Mr Kupa’s appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy