Te Puke man found guilty of assault has conviction quashed

Tauranga District Court.

A Te Puna man who was earlier found guilty of assault during an attack on a Te Puna family has had his conviction quashed.

Following a jury trial in the Tauranga District Court, Jack Simon Ake was convicted of charges of wounding with intent to injure and assault with a weapon. For this offending he was sentenced to a term of imprisonment of four years and nine months.

The Crown alleged that about 15 minutes prior to the attack, some of the accused's group had turned up at a Te Puna property looking for another man they believed had stolen a car.

The group, who were unknown to the occupants, became abusive and aggressive, punches were thrown, one man at the address was assaulted and the group left promising to return.

A group of about 10 people returned to the house about 15 minutes later armed with garden tools, a knife, a bat, and lengths of pipe. The weapons were used to smash vehicles and assault three men.

Mr Ake accepted he was at the house on the night in question but maintained he had taken no part in any of the assaults.

He went on to appeal his conviction.

The Court of Appeal ruled the court did not explain clearly to the jurors how Mr Ake had been identified by witnesses and the Judge did not give properly tailored direction to the jurors by providing an appropriate warning about some of the evidence identifying Mr Ake.

During the police investigation two witnesses were shown a set of photographs of four people (three men, one being Mr Ake, and one woman) said to have been involved in the alleged offending. The officer said the purpose of showing witnesses the photographs was to assist in identifying what role the defendants played in the assault.

During the trial, the same two witnesses who identified Mr Ake from his photograph and described what they saw him doing at the scene during the investigation, gave what amounted to a dock identification. When asked to describe the man's appearance one witness pointed out Mr Ake on that dock saying "that's him sitting there".

"Given the two unintended dock identifications, the Judge's failure to warn the jury about the dangers of relying on such evidence was significant and caused prejudice to Mr Ake's defence," a written decision from the Court of Appeal said. "We conclude that these omissions comprise legal errors that in the present circumstances constituted a miscarriage of justice. We therefore allow the appeal."

The court did not order a re-trial.

"We are satisfied the state of the evidence presented at the hearing on the question of the identity of Mr Ake was so unsatisfactory that no jury properly directed would have convicted him. This is not a case where the prosecution should be given another chance to cure the evidential deficiencies in the case against Mr Ake.

"For these reasons we consider it is not in the interests of justice to direct a new trial," the decision said.