New Zealand Law Society - Order in Council refers conviction to Court of Appeal

Order in Council refers conviction to Court of Appeal

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The Governor-General has referred the question of the conviction of James Leonard Toia, for assault by a male on a female, to the Court of Appeal.

The Order in Council was made on 9 March 2020. Dame Patsy Reddy's referral, acting under section 406(1)(a) of the Crimes Act 1961, is on the advice and with the consent of the Executive Council.

The reference is for the conviction of Mr Toia which was entered in the District Court at Auckland on 4 April 2008 and for assault by a male on a female contrary to section 194(b) of the Crimes Act.

After being found guilty in the District Court and being fined $750, Mr Toia 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.

On 29 June 2012 Mr Toia applied to the Governor-General for the exercise of the Royal prerogative of mercy in respect of his conviction. He submitted that his conviction was unsafe because a trial witness had sworn an affidavit, dated 22 May 2012, retracting the evidence she gave at the trial about witnessing injuries to the complainant on the day following the incident.

In 2013 Mr Toia brought a private prosecution against the witness, alleging that she had committed perjury at his trial. She pleaded guilty to the charge, and was convicted in the District Court at Auckland on 9 May 2014 of one charge of perjury.

The reason given for the reference is that evidence has become available since Mr Toia's trial and appeal against conviction that could lead the Court of Appeal to conclude that a miscarriage of justice may have occurred.