Fa'avae v The Queen

[2012] NZCA 528

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE POCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA6/2012 [2012] NZCA 528

BETWEEN  PETANI FA'AVAE Appellant

ANDTHE QUEEN Respondent

Hearing:         23 and 24 August 2012

Court:            White, Heath and Andrews JJ

Counsel:         G M Illingworth QC, A G V Rogers and F J Scott-Milligan for

Appellant
R J Collins for Respondent

Judgment:      13 November 2012 at 11.30am

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe conviction is quashed and the case is remitted to the High Court for a retrial.

COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other  publicly  available  database  until  final  disposition  of  retrial.

Publication in law report or law digest permitted.

FA'AVAE v R COA CA6/2012 [13 November 2012]

REASONS OF THE COURT

(Given by White J)

Table of Contents

Para No Introduction    [1] Background  [5] The trial                 [7] The Crown opening  [7]

The text message evidence – cross examination  [16] Text message evidence – the Judge’s ruling  [20] The Crown closing  [22] Chambers discussion  [25] The Judge’s direction  [31] Defence closing  [33] Summing up  [38]

Issues  [40] Prosecutorial Errors  [43] Error 1: Change to the Crown case  [45]

Error 2: Submission not supported by the evidence  [58] Error 3: Breach of the Judge’s ruling?  [61] Was the prosecutor’s conduct justified by the failure of the

defence to cross-examine on who the hood text message

referred to?  [69]

Were the problems in the prosecutor’s conduct cured by the

Judge’s direction?  [73]

Unfair trial or miscarriage of justice?  [87] Conclusion  [90] Result  [91]

Introduction

[1]      Petani Fa’avae appeals against his conviction for murder following a jury

trial in the High Court in Auckland in May 2011.

[2]      The principal ground of appeal is that Mr Fa’avae did not receive a fair trial

because  a  text  message  that  the  trial  Judge  had  ruled  inadmissible as  evidence

against him1  was referred to by the Crown prosecutor in his closing address to the jury as evidence relating to Mr Fa’avae’s role in the events leading up to the murder. It was submitted for Mr Fa’avae that a subsequent direction by the trial Judge to the jury  that  the  text  message  was  admissible  only  against  one  of  the  co-accused, Mr Eneasi  Finau,  and  was  not  evidence  against  Mr  Fa’avae,  did  not  cure  the prosecutorial error.

[3]      It was submitted for the Crown on appeal that there was no prosecutorial error and that, if there was one, it was cured by the Judge’s direction.   It was also submitted that there was in any event no miscarriage of justice.

[4]      In order to address the issues raised in this appeal it is necessary first to set out in some detail the background to the murder and the course of the trial.

Background

[5]      Mr Fa’avae, Mr Finau and Mr Siuaki Lisiate were charged with the murder of the deceased, Mr Tue Fa’avae, who was not related to the appellant, in Mr Finau’s cell  at  Paremoremo  Prison.    The  Crown  case  was  that  Mr  Fa’avae  had  aided Mr Finau to strangle the deceased and that Mr Lisiate, who was in a different part of the prison, encouraged Mr Finau to carry out the attack.

[6]      At the trial Mr Finau said he killed the deceased without assistance.   The Crown’s case, however, was that Mr Fa’avae had been working with Mr Finau towards carrying out the attack on the deceased about a week before it occurred and was involved in the events leading up to the murder.

The trial

The Crown opening

[7]      The Crown alleged in opening that the deceased was killed as an act of revenge.   A member of the Crips gang, Lava Savelio, was severely beaten a few

1      R v SL HC Auckland CRI-2009-044-2878, 24 May 2011.

weeks  prior  to  the  deceased’s  murder  by  two  members  of  the  Bloods  gang. Mr Finau, Mr Fa’avae and Mr Lisiate were Crips.   The Crown alleged that in the aftermath of the beating of their fellow gang member, Mr Finau and Mr Lisiate decided to exact revenge by an  attack on a member of the Bloods gang.   The deceased, a Blood, was chosen as the target.  Mr Lisiate was in a different part of the prison  during  the  relevant  events  and  was  never  in  physical  proximity  to  the deceased.  The Crown alleged that Mr Lisiate’s role was to encourage Mr Finau to carry out the attack.

[8]      To understand the detail of the prosecutor’s opening it is necessary to say something about the arrangement of the cells in the prison and prison routine.  The murder occurred on the upper B Block of Paremoremo Prison.  The cells in upper B Block were arranged in two sets of six, the front six and the back six.  There was a gate between the two sets of cells.  Mr Finau was in the back six.  The deceased was in the front six.  A secure corridor ran in front of the two sets of cells.  The corridor also gave access to a shower block. Although the two sets of cells were separated by a gate, this gate was kept open.  Twice a day prisoners were allowed out onto the landing for exercise, cleaning and ablutions.   The prisoners were, however, only released in groups, that is, either the group of prisoners from the front six cells or the group from the back six cells.  So, while the front six were released onto the landing for an hour the back six would remain locked up and vice versa. When, however, the prisoners were locked down again at the end of their hour on the landing it was possible for a prisoner to hide in the showers to escape the notice of the prison guards.  Once the other prisoners were unlocked the prisoner could then come out of hiding and join the other six prisoners in the corridor.

[9]      In  his  opening  address  the prosecutor  referred  to  the respective roles  of Mr Fa’avae and Mr Finau in the attack.   The Crown alleged that shortly after the attack on Mr Savelio, Mr Finau obtained a transfer to the same cell block as the deceased. The prosecutor said:

... it’s the Crown case that this was a deliberate decision made in an effort to get housed, for Mr Finau to get housed closer to the deceased and to improve his chances of getting at him directly. Thereafter, it’s the Crown case that

Mr Finau set about gaining his trust and effectively befriending him.  You’ll get to watch some video footage and you’ll get to see this sort of befriending process in action, if you like.  Can’t hear what’s being said but spends a lot of time outside of Mr Finau’s cell.

[10]     The prosecutor then noted that Mr Finau had a cell phone that some of the inmates used.  The prosecutor suggested that the chance of using the cell phone may have been used to lure the deceased to stay on the landing when his cell was locked and the back six’s cells were opened.

[11]     The prosecutor then turned to the morning of the attack.  He described how the deceased hid himself in a shower cubicle after his cell was locked down and then when the back six were unlocked came out to join them and went into cell 46, Mr Finau’s cell. The prosecutor then described how:

...  at  a  certain  point,  and after Tue  Fa’avae  was  in  cell  46  …  all  four surveillance cameras were systematically covered up.  Mr Finau covered the two monitoring the back six with toothpaste.  Mr Fa’avae, Mr Petani Fa’avae covered one of those, the central camera that monitors the front six with a piece of paper, and then another man, Mr Tunupopo, covered the camera over the landing entrance, also with paper.  So essentially these four cameras which are there to monitor activities and ensure security were closed down by being covered up variously.

[12]     The reference to Mr Fa’avae covering up the cameras is the first time the prosecutor  refers  to  Mr  Fa’avae’s  precise  role  in  the  attack.    The  prosecutor continued:

From that point the detail of what transpired in the landing is essentially narrated for us by four of the inmates themselves … Oswell Tunupopo saw [the deceased] enter cell 46.  He also saw Petani Fa’avae who had a black radio cord wrapped around his hand, and Mr Finau both enter the cell.  Then shortly thereafter he was called over to the cell by Mr Finau and asked to help drag the body down to the showers.  At that point [the deceased] was lying on the floor, Petani Fa’avae was standing alongside and the black cable was wrapped round his neck and tied in a knot at the side.  He will tell you he helped them drag and carry the body back down to the showers …

He will also say that as they left the cell Mr Finau was carrying a shank, which is a sharpened instrument, and after [the deceased] was left in the shower cubicle, Mr Finau went down there a number of times and spent some time in there and he was also at different times carrying a sheet and a towel.   And also at some point Petani Fa’avae brought back the cable to Mr Tunupopo but then shortly thereafter took it away again.

[13]    Having described the events, the prosecutor then turned to the evidence uncovered by the police investigation.  For present purposes, only the prosecutor’s description of evidence obtained from cell phone records is important.  He noted:

... somewhat surprisingly the prison seemed to have been alive with cellphones and one of the cellphones was of particular interest, and it was principally being used by Siuaki Lisiate.  Members of the jury, it contained highly incriminating text message material directing Eneasi Finau to make this hit and kill Tue Fa’avae.

[14]     He then said:

...   within   that   phone   …   highly   incriminating   content   was   found. Specifically, on the 28th  of February 2009, so that’s the day before … The day before the 1st of March and [the deceased’s] death, Mr Lisiate sent a text message to the phone used by Finau. And it read … “Arsehole hurry up and do something before the arshole Fa’avae escape to A block”.

Now of interest, at that time, the authorities had intended and had identified Mr Fa’avae, Tue Fa’avae for a move to A block … Then 25 minutes later, a further text, “Arsehole, we talked and suss out for a way to kill Fa’avae and you kept saying ‘yes, yes’ and not walking the talk,” signed, “just fuckin crazy.” Which you will come to appreciate is how Siuaki Lisiate routinely signs himself off, that’s his tag members of the jury …

The net result, the following morning, on the Crown case and further into that very plan, that they’d sussed out it would seem, which had Mr Finau up onto that block, Mr Finau enlisted the services of Mr Fa’avae, who had forearmed himself with that radio cable and then together they entered cell

46 and then strangled and killed Tue Fa’avae.

Now members of the jury, there is other equally compelling and relevant text message material sent and received which shows this plan and just what it was that Mr Finau intended to do, but I’ll leave that for you later, you’ll get to assess that in due course.  But, as I say, the net result, as a consequence, all three have been arrested and charged with the murder of Tue Fa’avae.

The Crown will say and you might conclude, that there is very strong evidence that Mr Lisiate and Mr Finau deliberately planned this “hit”, as payback for what happened to Lava Savelio, fully intending to kill him. Then at Mr Lisiate’s ongoing urging, Mr Finau appears to have enlisted the services of Mr Fa’avae and then together they carried out the “hit” on the deceased Fa’avae in a deliberate, in a calculated and in a cowardly fashion, before discarding that body in the shower cubicle on the landing.

[15]     In explaining the roles of each accused in the attack the prosecutor said:2

Turning then to Mr Finau and Mr Fa’ave and their precise role in this attack. Now it’s clear we don’t know precisely what happened in that cell.  What we

2      Emphasis added.

do know is that they both spoke together and then with Mr Fa’avae holding that radio cable around his hand, then they then entered the cell together. Now Tue Fa’avae you’ll hear was a solid man, but he was very easily overcome, it would seem, and then that cable was tied tightly around his neck.  It’s the Crown case that Fa’avae was directly involved in this process and it was Mr Finau who both assisted and abetted him in that action. …

…

In the end the Crown case is that each of the accused was actively involved in the killing, that’s Mr Finau and Mr Fa’avae.  We don’t know their precise role, but inferentially from all the available evidence, they have each been actively involved in that killing.  In addition, on the evidence it seems clear that  Mr  Finau  has  also abetted  Mr  Fa’avae  in  the  commission  of  that offence and he has in turn carried through on the commission of the offence, together with him.  And importantly of course, the Crown evidence will be, Mr Finau’s made it clear in other text communication what he intended to do that day, and you’ll get to read that.

The text message evidence – cross examination

[16]     In his evidence Mr Finau asserted that he alone was responsible for the deceased’s death, although he had not meant to kill him.  He claimed he had a “one- out” with the deceased during which he strangled him.  The Crown had a wealth of text messages between Mr Lisiate and Mr Finau that demonstrated that Mr Lisiate had encouraged Mr Finau to kill the deceased and that Mr Finau had shared his plans with Mr Lisiate. The Crown, however, did not have similar text message evidence in respect of Mr Fa’avae.  The Crown sought to rely on an exchange of text messages that took place on 25 February, three days before the murder, between Mr Lisiate and Mr Finau to establish Mr Fa’avae’s knowledge of the plan.  The Crown alleged that Mr Lisiate had become impatient for Mr Finau to carry out the attack and had sent a message essentially saying that if Mr Finau did not hurry up Mr Lisiate would organise a revenge attack himself.  However, Mr Finau replied that he was already organising an attack with someone else.  The relevant text messages were as follows (full English paraphrasing of the messages is in the extract from the cross- examination below):

Lisiate:           PUT TINGLES ON N IL RNG THRY N TLK 2 HIM.IF NT SWT AZ.  WE’L AL STRT DUIN OUR OWH THING, IF I DN TLK 2 HM NETYMSN.JUSTFUCKENCRAZY

Finau :            Hs nt usng at 2nyte.tha other crip just cme in is.2 get sht hapng ths wkend.TRU.BLU.GANGSTA.UP

Finau:             N YEA IM ALREADY DOING MY OWN THNKS WITH THIS  CRIP 4RM  MY HOOD.NT TINGL!SORI  4  WHT EVER U ANGRY AT ME 4.   O.G.   H.   V.   C.   TO THE ROTTEN

[17]     “Tingles” was the nickname for Mr Turaki, another prisoner on the same block as the defendants.  We will refer to the final text message as the “hood text message”.

[18]     Mr Finau was cross-examined on the text messages as follows:

Q:       ... he [Lisiate] says “Put Tingles on and I’ll ring through and talk to him, if not sweet as we’ll all start doing our own thing.  If I don’t talk to him anytime soon, Just Fuckin Krazy.” Again, Lisiate’s trying to talk to Tingles isn’t’ he.

A:       Yes.

Q        He’s wanting Tingles to get on? A:         Yes.

Q:       And I suggest “doing my own thing” or “doing your own thing” is starting at where they were, it’s code for, we might read code for getting at the Bloods, do you think?

A:       Nah

QBut what I suggest to you is that Tingles didn’t want a bar of it did he, he didn’t want to get involved in whatever it was you were planning did he?

A:       This conversation got nothing to do with any of that.

Q:       But pretty quickly you go back to him don’t you … “He’s not using tonight, the other Crip just come in is.” I suggest that’s Petani Fa’avae, “To get shit happening this weekend, True Blue Gangster up.” Correct?

A:       I disagree when you say, Petani Fa’avae

Q:       Well is it Tunupopo? A:   Yes.

Q:       Right,  that’s  fine.    But  anyway,  and  then  you  say,  “To  get  shit happening this weekend,” don’t you?

A:       Yes.

Q:       “And we talk about shit,” that’s “get the Bloods”, isn’t it?

A:       No.

Q:       Well importantly, the next text you send back to Lisiate is really instructive and what it says, “Mmm yeah, I’m already doing my own thing with the other Crip from my hood, not Tingles.” I suggest the other Crip from your hood is Petani Fa’avae isn’t it?

A:       No.

[19]     Mr Fa’avae did not give evidence at the trial.

Text message evidence – the Judge’s ruling

[20]     After the defence case closed the Crown sought a ruling that the text message sent by Mr Finau referring to “doing my own thing with the other Crip from my hood, not Tingles” was admissible against all three defendants as evidence of a joint enterprise to kill the deceased in terms of s 66(2) of the Crimes Act 1961.   The matter was discussed in chambers before the Judge, Potter J, as follows.

THE COURT:

... are you really going to pursue that Mr Glubb?

MR GLUBB:

Well, I guess, from the outset I’ve opened on the basis that this was a joint enterprise.  The communications in opening, I said they, they were together in this and 66(1) was the opening, I accept that and they’re helping out. This, and what I’m saying is that, these texts are in furtherance of that joint enterprise.

THE COURT:

Well, it is the first I have heard of it.   I deliberately asked you upfront whether the Crown relied on section 66(2), and you said (1) and I have heard no mention of joint enterprise.  I have heard mention of plans, but I have not heard mention of joint enterprises.

MR GLUBB:

Your honour, I, I’m not putting colours to the mast on section 2, but that doesn’t take away the possibility of a joint enterprise.  They don’t have to, you don’t have to fashion the case under subsection (2) to fit into a joint enterprise. What I’m suggesting is that these three have got together, they

have – and in accordance with that plan, they have carried out this killing and that in my submission, that particular text, is evidence of that fact as well.  It’s not a strong point Your Honour.  I simply raise it, because that’s the, that is the flavour effectively of what is being said between these individuals.

It doesn’t change the approach I’m taking in terms of section 66(1).  Don’t

like it?

THE COURT:

I am unhappy about it, Mr Glubb and I do not want you to pursue it.  It has come far too late in the piece, you are closing this afternoon.   I am not prepared to consider this argument at this point.

MR GLUBB: All right, okay. THE COURT:

I just do not think it is an argument worth pursuing quite frankly.

MR CLUBB:

All right, I take Your Honour’s lead on that.  I thought I had to raise it.

THE COURT:

All right, well fair enough, but if you wanted to make this sort or argument, I

needed to hear about it earlier and so did counsel for the defence.

MR GLUBB: No, I accept that. THE COURT:

Happy with that, Mr Niven?

MR NIVEN:

Well I am, Your Honour, and I, I just want to make the point that the, the factual basis that we would’ve needed to argue is, is not in the evidence.  It’s quite clear that I think we’re talking about a hood or a neighbourhood … The cross-examination I think was deliberately left short, to leave that possibility open and there was not evidence called about where Mr Fa’avae’s from which would’ve excluded it.  So, I think it’s factual basis for the argument, on top of what Your Honour’s concerned about, but I am happy with the ruling from Your Honour obviously.

[21]     In a minute delivered later that day Potter J recorded:3

[5]       Mr Glubb referred to a text dated 25 February 2009 … In that text [Mr Finau] refers to “ … I’m already doing my own thnks with this crip 4rm my hood.  Nt Tingle! …” Mr Glubb said he had put to [Mr Finau] in cross- examination   that   the   reference   to   “my   hood”   was   a   reference   to [Mr Fa’avae].  He submitted that the three accused were involved in a joint enterprise and that this statement was therefore admissible against all three accused.  He sought a ruling accordingly.

[6]       Mr Niven for [Mr Fa’avae] opposed the application.  He made only brief  submissions  given  my  indication  that  the  application  did  not  find favour.

[7]       I ruled against the application.  I noted the contention that the three accused were involved in a joint enterprise had not previously been raised and that it was too late, at this point in the proceedings when the Crown was about to close to the jury, to raise this issue without warning the defence or the Court.   I was also concerned about the absence of a factual basis to support the contention that [Mr Fa’avae] was involved in a joint enterprise with the other two accused.

The Crown closing

[22]     In closing the prosecutor said that Mr Fa’avae’s involvement in the killing

was evidenced by the following facts:

(a)      Mr Finau and Mr Fa’avae spent significant amounts of time with the deceased leading up to the murder in order to gain his trust.

(b)      Mr Fa’avae was a Crip who got on well with Mr Finau and who in the

days prior to the murder spent a lot of time with him.

(c)      The day before the murder Mr Fa’avae and Mr Finau had a long conversation during which Mr Fa’avae looked directly at the cameras and  Mr  Finau  pointed  at  them.     The  clear  inference,  said  the prosecutor, was that the pair were discussing covering the cameras. The reason the cameras needed to be covered was that Mr Finau and Mr Fa’avae always intended to dispose of the body.

(d)      Mr Fa’avae helped to cover the cameras before the murder.

(e)       Mr  Fa’avae  was  in  the  cell  at  the  time  the  deceased  was  killed.

Mr Tunupopo gave evidence that Mr Fa’avae, with Mr Finau, went back and forth between Mr Fa’avae’s cell and Mr Finau’s cell (cell 46, where   the   deceased   was   killed)   several   times.      Particularly, Mr Tunupopo said that just before he was called over to cell 46 and saw the deceased’s body on the floor he thought that Mr Fa’avae and Mr Finau were in the cell.   When he came to the cell and saw the deceased on the ground both Mr Fa’avae and Mr Finau were there. Mr Buchan, another prisoner from the back six, gave evidence that Mr Finau was outside the cell when Mr Fa’avae started dragging the deceased’s body out.  Mr Finau then went to help Mr Fa’avae.

(f)      Mr Finau’s explanation for how Mr Fa’avae came to be in the cell was not credible.  Mr Finau had asserted that after the deceased was killed, Mr Finau had left the cell and Mr Fa’avae had slipped into his cell unnoticed.      That,   however,   required   the   jury   to   believe   that Mr Fa’avae had gone into the cell despite seeing a dead body in the doorway.

(g)Before the murder, Mr Fa’avae was seen carrying a black radio cord wrapped around his hand like that used to strangle the deceased. After the murder Mr Fa’avae gave the cord to another inmate but then requested it back.   The other inmate had seen the cord around the deceased’s neck and thought it could have been the same one.

(h)      Mr Fa’avae helped drag the body to the showers and conceal it.

(i)       Mr Finau’s evidence was clearly unreliable, which indicated he was

taking the blame for the others.

(j)       Given the lack of defensive injuries on Mr Finau, the deceased must

have been taken by surprise by both Mr Fa’avae and Mr Finau – if

Mr Finau alone had attacked the deceased there would have been a significant struggle.  Mr Fa’avae provided the “muscle” necessary for a hit.

[23]     With  respect  to  the  text  messages,  the  prosecutor  said  the  following  in closing:4

… after Mr Lisiate suggested getting Mr Turaki involved, Mr Finau came

back to him almost immediately, assuring him that everything was on track

… “He’s not using it tonight, the other Crip just come in, is.” He told us that was Mr Tunupopo, about the phone, because he was saying, “Put Tingles on

the phone,” he said, “He’s not using it tonight, the other is”, and that was

Mr Tunupopo.  “To get shit happening this weekend.  True Blue Gangster,

up.”

And then the second, the next reply, three minutes later goes, “Mmm yeah

I’m already doing my own thing with this Crip from my hood, not Tingles …

He then confirms he is already doing his own things which would appear to be code for what was being planned, but then, and very importantly for present purposes, he confirms he is doing it with the Crip from my hood but not  Mr  Turaki.    So  that  only  leaves  one  person,  members  of  the  jury, Mr Petani Fa’avae.

Now interestingly, for someone who, on his own account, had a beef and a falling out and hated Mr Lisiate, he then makes that grovelling apology. “Sorry for whatever you’re angry at me for.  OGHV, Original Gangster HV, Crip to the rotten.” You might think it’s not too difficult to work out just what’s happening here, he’s getting the hurry up from Mr Lisiate, if you can’t do it, I’ll get someone who can.  Then his response is, I’m all over it, it will be this weekend and I have the help of this Crip from my hood, read there, Mr Fa’avae, and I’m sorry, don’t get angry.  I’m still a loyal Crip.

[24]     The prosecutor summarised the Crown case as follows:

It is simply that Mr Lisiate and Mr Finau saw the aftermath of that earlier incident ... , they then heard the deceased calling out “Bs up” and that was enough, ... they went for ... a Blood.   A plan was hatched and as a consequence,  the  accused  Mr Finau  got  himself  transferred,  gained  the deceased’s trust, enlisted, I suggest, the assistance of Mr Fa’avae and then they lured him, [the deceased], into their trap.  And together, Mr Fa’avae, forearmed with that cable, they entered the cell and they strangled him.  This was a hit, nothing short of it, and in a cold, calculated and cowardly manner, they launched a surprise attack and he didn’t stand a chance once that cord was tightened from the front of his neck.   That’s the evidence really, in a nutshell.

Those text messages paint the most vivid of pictures and even if we cannot fathom the gang culture, or the thinking that would get you to that point, they show very clearly what was being planned all along.

…

Well on the evidence, on [Mr Finau’s] evidence alone, if you accept it, we know that Mr Finau applied the cord.  However, on the other evidence we know that Mr Fa’avae helped cover the cameras.  He bought the weapon of choice and he was in the cell throughout providing the necessary muscle Mr Finau accepted was necessary in a hit. You might well conclude he knew precisely what was going down and he willingly helped his fellow Crip carry out this hit.  It needed at least two, and he was part of the muscle required, particularly when someone was a handful.  And as I say, we know full well that the deceased certainly was that.

Chambers discussion

[25]     After the Crown closing there was a chambers discussion where Mr Niven, senior counsel for Mr Fa’avae’s, told the Judge that the Crown’s closing had created a significant problem for him.   He referred to the Judge’s earlier direction to the prosecutor not to suggest that the “Crip” from the “hood” in the text message was Mr Fa’avae but pointed out that the prosecutor had done exactly that.  This created a problem for Mr Niven because:

... the Crown have named Petani Fa’avae as being the person … referred to by Finau in the text, in a situation where that evidence is not admissible against him … I’m left in a position where I’m now forced to address evidence that’s inadmissible against my client.

[26]     Mr Niven then told the Judge that there was a further problem in that “hood” was short for neighbourhood and while the evidence had disclosed that Mr Finau was from Mangere there was no evidence of where Mr Fa’avae was from.  In fact, Mr  Fa’avae  was  not  from  Mangere  so  could  not  be  from  the  same  “hood”  as Mr Finau.  On the other hand, Mr Tunupopo, who had originally been charged, but had had his charges withdrawn, was from Mangere.  Moreover, Mr Niven pointed out that in a text message sent a few minutes before the hood text message there was reference to an unnamed “Crip” and in response to a question from the prosecutor asking Mr Finau if the reference was to Mr Tunupopo, Mr Finau confirmed that that Crip was Mr Tunupopo.   In relation to the hood text message, which referred to Mr Finau “doing [his] own thing with this Crip from [his] hood” the prosecutor

asked if the reference was to Mr Fa’avae, which was denied, but did not ask whether it was a reference to Mr Tunupopo.  Mr Niven submitted to the Judge:

He’s got two texts to the same person within three minutes of each other, the first one which is a clear reference to Tunupopo, and in my submission it would be reasonable to assume that the second one where the person is not named is also a reference to Tunupopo.   That’s the topic of conversation, he’s the person being discussed.  So there’s simply no evidential basis at all for the Crown to even make that suggestion.  And there was no attempt by the Crown at all to suggest that they’re only using that evidence against Petani Fa’avae, so again the whole situation to a jury who are not legally trained, and obviously weren’t party to the discussion we had earlier, has created quite a misleading impression.

[27]     Mr Niven went on to say that given the Crown case was weak, the reference

in the Crown’s closing had added significance because:

There’s nothing in the text messaging about [Mr Fa’avae] at all.  The Crown have said in their closing that he’s part of the plan, that he’s been enlisted by [Mr Finau] and clearly it’s their case that he knows what’s going on.  But there’s really no evidence that they’ve suggested that would suggest any knowledge on his part, it’s just an inference from the actions of covering the camera and carrying the cord, and helping to move the body.  Then again they’ve made reference to gang association, and because Finau’s a crip and he’s a crip, therefore they’re asking the jury to draw the conclusion that they’re  part  of  one  team.    But  again,  in  my  submission,  without  any evidential basis to show any particular history between them or any association.  There’s nothing for example of the history that we see between Lisiate and Finau of knowing each other for years.   So again in my submission this becomes quite an important piece of evidence – well not important, I mean it’s inadmissible, but it becomes a significant matter that’s been put before the jury by the Crown.   I have some concern, because I would – if I address it I’m having to address evidence that’s inadmissible against my client, and that creates a situation where by trying to dismiss it I actually end up reinforcing it.  And then there’s the issue of if Your Honour gives a direction that they are going to ignore it, whether they can do that properly.  And really if there’s any concern that the jury may not be able to follow that direction, then the result is that the trial should end against Mr Fa’avae.

[28]     Mr Glubb explained his position as follows:

THE COURT:

Mr Glubb, can you explain to me why you went there given our discussion at lunch time?

MR GLUBB:

Well I certainly didn’t suggest for one moment that it was evidence that was admissible against Mr Fa’avae.

THE COURT:

How on earth is the jury going to distinguish that?

MR GLUBB:

The Crown case has been clear from the outset.  What the Crown says is that Mr Finau did enlist the support of Mr Fa’avae, and throughout that’s been the evidence that the Crown has submitted.  Covering the cameras, getting the cord, being in the cell  at  the time  that the killing occurred,  on the Crown’s case, then helping to carry the body down to the shower.  He was assisted by someone.  And obviously from the day before, and we submit that that’s what happened; it’s all part of this planning that’s seen – the Crown says here they are walking up and down, looking at the cameras, and lo and behold they’re all covered.

THE COURT:

From the day before?

MR GLUBB:

Exactly, Your Honour.  Now I didn’t suggest for a moment that that evidence is evidence against Mr Fa’avae.  What is suggested is that for Mr Finau, he’s got someone helping him.

[29]     Mr Glubb also explained that he had asked defence counsel if he should say in his closing that the text message was only admissible against Mr Finau but had been asked not to as this would draw attention to the text message.

[30]     The Judge decided to give a special direction to the jury, before the defence closing and summing up, that the evidence was not admissible against Mr Fa’avae.

The Judge’s direction

[31]     The Judge directed the jury that the hood text message was evidence only against Mr Finau. After referring to the text message the Judge directed the jury:5

[3]       Mr Glubb suggested to you that the reference to “this crip from my hood” in that text is a reference to [Mr Fa’avae].  I need to direct you that there is no proper evidential basis for that inference.  There is no evidence pointing to or indicating that it is [Mr Fa’avae] who is the person referred to by [Mr Finau] in those texts.  There are two texts at the bottom of the page that refer to “the other crip”.

[4]       The statement in the text is what we call an out of court statement made by [Mr Finau].  It is not admissible evidence against the other accused unless the other accused has adopted or agreed to it.   It is therefore inadmissible evidence against [Mr Fa’avae].  There is good reason for this rule including that an accused person may have reasons of his own to implicate or blame a co-accused.  So [Mr Finau’s] texts at the foot of page 9 (if you accept that it was he who sent them), are admissible of course in relation to him, they are his texts – that he was doing his own thing with a Crip from his neighbourhood (if that is how you interpret that part of the text)  but  those  texts  are not  evidence  against  [Mr  Fa’avae].   You  must completely set aside any thought or understanding that the person referred to by [Mr Finau] in those two texts is [Mr Fa’avae].  The evidence is simply not admissible against him and as I have said there is no proper evidential basis for that inference.

[32]     The  Judge  then  referred  to  the  cross-examination  on  the  relevant  text messages and said:

Whatever  you  make  of  the  evidence  of  [Mr  Finau]  I  give  you  clear directions.  Any suggestion that the other Crip referred to in those two texts [is Mr Fa’avae] is not admissible evidence in the case against [Mr Fa’avae] and you must set it aside when considering the evidence in relation to him. This is very important because each of the three accused is entitled to be tried only on the evidence that is admissible against them.

Defence closing

[33]     The defence closing for Mr Fa’avae focussed on the lack of evidence as to what occurred in the half hour after the cells were unlocked on 1 March.  Defence counsel suggested that the Crown case against Mr Fa’avae relied on three actions: covering  the  camera;  carrying  a  stereo  cord;  and  moving  the  deceased’s  body. Defence counsel pointed out that Mr Tunupopo had also done the first and third actions, yet charges against him were withdrawn so the first two actions could not be enough.  Defence counsel argued that there was an innocent explanation for carrying the cord, namely that it was to be used in a “tea-bomb” (a home-made element for boiling water).

[34]     Defence counsel rejected the Crown’s contention that Mr Fa’avae was in the cell   throughout   the   relevant   time,   referring   particularly   to   passages   from Mr Tunupopo’s evidence where he said Mr Fa’avae was going in and out of the cell. Defence counsel also argued that the evidence did not disclose strong gang associations between the three accused.

[35]     Defence counsel noted that the only evidence of Mr Fa’avae using the cell phone was almost entirely to send text messages to his girlfriend and that his usage of the phone was irrelevant to the trial.

[36]     Defence counsel noted with respect to the Crown case that:

The Crown opened on the basis that [Mr Fa’avae] carried the cord into the cell and he killed [the deceased] with it.   They’ve backed off from that, they’re not saying that any more.   What they’re saying now is that Finau enlisted Petani Fa’avae, he involved him with his plan.  Well I’d suggest to you there’s no evidence of that, none.  They can’t point you to any piece of evidence that suggests Petani Fa’avae was told about the plan to kill Tue Fa’avae,  it’s  just  not  there  and  it’s  not  an  available  inference  from  his actions, that’s clear from looking at Tunupopo.  He’s done pretty much the same thing and he’s not even charged.  So there’s no evidence of any sharing of any plan, of any bringing Petani into his confidence so to speak.  There’s nothing to suggest that Petani knew anything that was in Finau’s mind.

[37]     Defence counsel also criticised the Crown contention that it would have taken two people to subdue the deceased.  The point was not put to the pathologist so there was no evidence to support the theory that it would have required two to strangle the deceased.

Summing up

[38]     The Judge summed up the main aspects of the Crown and defence cases, which have been outlined above.  The jury were reminded of the special direction that they were to ignore any suggestion that the reference to the “other crip” in the hood text message was a reference to the deceased as this evidence was not admissible against him in the context of a more general direction on out of court

statements. The Judge said:6

Out of Court statements of accused

[35]     The  accused  Siuaki  Lisiate  and  Petani  Fa’avae  have  not  given evidence.  That means the only account of their side of things are the statements they gave to the Police.  They and Eneasi Finau made statements in response to Police questioning and you have heard those statements read to you by the Police Officers who interviewed them – Detectives Laurenson, Matheson and Williams.  The statements made to the Police Officers are not of course sworn testimony.  They are not made on oath or affirmation as is evidence given in Court.  But they are properly part of the material for you

to consider.   What you make of the truthfulness, accuracy and weight of those statements is entirely for you to decide.  In the same way that you may accept parts of what a witness says in evidence, and not accept other parts, you may accept parts of what was said to the Police by the accused, and not other parts.

[36]      In deciding what weight to attach to those statements you are entitled to bear in mind that the accused were not oath when they made them, and that Petani Fa’avae and Siuaki Lisiate were not tested in cross-examination in relation to those statements as witnesses who give their evidence in court invariably are.

[37]      The  out  of  Court  statement  (that  is  what  we  call such  a  Police statement), is admissible for and against the accused that made it, but is entirely inadmissible against the other accused.  So the statements made to the Police by Siuaki Lisiate, Petani Fa’avae and Eneasi Finau are evidence in each case only against the maker of the statement.  They are not admissible evidence against either of the other accused.

[38]      I referred to this matter yesterday and it is important and I gave you directions yesterday morning.  A statement by an accused in a text message (which is a statement made out of court) is admissible only against the maker of the statement.   It is not admissible evidence against either of the other accused.  Yesterday I directed you about the texts at the bottom of page 9

Exhibit 4 [the hood text message and the messages surrounding it].  I do not believe there are other texts in this sort of category that I need to draw specifically to your attention, but you must be aware of this rule about out of court statements of an accused as you consider the evidence.

[39]     The jury were also told that in effect they were to judge three separate trials. The Judge said:

Three Separate Trials

[79]      There are in reality three separate trials going on here.   You must look at and consider the evidence in the case in respect of each of the accused quite separately, although of course the background evidence is relevant to them all.

Issues

[40]     In light of the background just described, the issues raised on this appeal are: (a)     Was there an error by the prosecutor referring to the text message?

(b)      If so, was the error cured by the Judge’s direction?

(c)      Did the prosecutorial error make the trial unfair?

[42]     Before doing so, however, we note that the admissibility of the hood text message was not in issue on appeal.  Contrary to the position taken by the defence at trial and Potter J’s ruling, Mr Illingworth accepted, as the Crown submitted, that the hood  text  message  was  admissible  as  an  in-court  statement  when  Mr  Finau confirmed its contents, although claiming it was about drugs rather than murder.  In other words, it was common ground before us that in confirming the statement Mr Finau effectively gave evidence that he had sent a text message with the contents of the hood text message evidence, which, because it was given in court, was admissible against all accused.  Because of counsel’s concessions the admissibility of the statement was not fully argued before us.  Accordingly, we make no comment on the admissibility of the evidence, but assume for the purposes of this appeal that the statement was admissible on the basis accepted by the parties.  We acknowledge that the admissibility of the statement may need to be addressed at the re-trial.

Prosecutorial errors

[43]     In the course of the submissions for Mr Fa’avae on appeal three prosecutorial errors were identified, namely:

(a)      changing the Crown theory of the case in the closing from Mr Fa’avae having been enlisted to help Mr Finau to Mr Fa’avae being involved in the planning four days beforehand; and

(b)      making a submission not based on the evidence; and

(c)       failing to recognise the clear implications of the Judge’s ruling and

thereby breaching it.

[44]     We deal with each error in turn. We then consider the prosecutor’s contention at the hearing that the errors were excusable because of the defence’s failure to cross- examine in accordance with s 92 of the Evidence Act.

[45]     The cross-examination on the hood text message and the references to the text message in the Crown’s closing were a significant change from how the Crown had run the case against Mr Fa’avae up until that point.  In the Crown opening the prosecutor repeatedly said that Mr Finau had “enlisted the services” of Mr Fa’avae. The phrase “enlisted the services” suggests that Mr Finau simply asked Mr Fa’avae to help after he had formulated a plan with Mr Lisiate.   It does not suggest that Mr Fa’avae  had  a  role  in  planning  the  attack.     Moreover,  while  there  was considerable discussion of how Mr Lisiate and Mr Finau planned the attack, no such planning role was attributed to Mr Fa’avae; his services were simply “enlisted” at some stage.  Indeed, part of the Crown opening seemed to suggest that Mr Fa’avae was only enlisted to help on the morning of the attack.   After referring to a text message sent from Mr Lisiate to Mr Finau on 28 February, the prosecutor said:

The net result, the following morning, on the Crown case and further into that very plan, that they’d sussed out it would seem, which had Mr Finau up onto that block, Mr Finau enlisted the services of Mr Fa’avae, who had forearmed himself with that radio cable and then together they entered cell

46 and then strangled and killed Tue Fa’avae.

[46]     Even after his closing the prosecutor seems to have confirmed to the Judge that the Crown case was that Mr Fa’avae only knew about the planned attack the day before it occurred. The prosecutor discussed the matter with the Judge as follows:

MR GLUBB:

The Crown case has been clear from the outset.  What the Crown says is that Mr Finau did enlist the support of Mr Fa’avae, and throughout that’s been the evidence that the Crown has submitted.  Covering the cameras, getting the cord, being in the cell  at  the time  that the killing occurred,  on the Crown’s case, then helping to carry the body down to the shower.  He was assisted by someone.  And obviously from the day before, and we submit that that’s what happened; it’s all part of this planning that’s seen – the Crown says here they are walking up and down, looking at the cameras, and lo and behold they’re all covered.

THE COURT:

From the day before?

MR GLUBB:

Exactly, Your Honour.

[47]     The submission made by the prosecutor in closing, however, suggested that Mr Fa’avae knew about the attack much earlier than the Crown case had asserted up to that point and that he had greater involvement in the planning than had been previously alleged.  The text was sent on 25 February, three days before the attack. The submission that the text message meant that Mr Finau was “doing his own thing” with Mr Fa’avae suggests that sometime before the text message was sent, Mr Fa’avae and Mr Finau had planned the attack independently of Mr Lisiate.  This is quite contrary to the Crown opening, which suggested Mr Fa’avae was enlisted at a late stage to provide help for Mr Lisiate and Mr Finau’s plan.

[48]     In his affidavit filed on this appeal, Mr Boyack, who was junior counsel for Mr Fa’avae in the High Court, noted with respect to the cross-examination on the hood text message that:

20.      As I listened to this cross examination unfolding, I suddenly realised that the Crown was hatching a new theory of the case, namely that Mr Finau had been separately conspiring with Mr Fa’avae to “get the Bloods”.

21.      The prosecutor was effectively postulating, (in contrast with the very different  way  in  which  he  had  put  his  case  in  opening)  that Mr Fa’avae  was  the  “crip  from  the  hood”  with  whom  Finau, separately, had been making murderous plans.

[49]     Having read the opening addresses, we consider that Mr Boyack’s assessment is fair.   The cross-examination on the hood text message involved a significant change to the Crown case.   This change, which came about in cross-examination, was made much more prominent by the Crown’s closing address.  We also note that Mr Boyack was not called for cross-examination on his affidavit and the prosecutor did not provide an affidavit challenging Mr Boyack’s assessment.

[50]     Not every change between the Crown opening and the Crown closing is, however, a prosecutorial error that can lead to a finding that a trial was unfair.  Three decisions of this Court are relevant to assessing the effect of the change in the Crown case.

[51]     In R v Shaw the appellant had been convicted of arson from burning down a church.7    The Crown’s case was based on admissions by the appellant that he had committed the arson, propensity evidence and testimony from a witness who saw him in the vicinity of the church just prior to the arson.   The indictment named Mr Shaw as a principal offender and the Crown opened on the basis of him being a principal offender.   While giving his evidence, however, Mr Shaw said that some

months before the arson, while in Linton prison, he had suggested to some other inmates that they burn down the church.   Drawing on Mr Shaw’s admission, the prosecutor invited the jury to convict Mr Shaw on the basis either that he was a principal party or that he was a secondary party through inciting, counselling or procuring the offence.  This Court held that the change in the Crown case in closing

was a “clear miscarriage of justice”.8  The Court held:

[35]      What the Crown did was, effectively, very similar to an amendment of the indictment by the addition of an alternative charge.  However, because of the course adopted by the Crown, there was no opportunity whatever for the appellant to be heard as to whether he opposed the position of the Crown. The Judge did not intervene.  The appellant was not heard as to whether he claimed any prejudice or to be misled by the course adopted.

[36]     The Crown now submits that the appellant was not prejudiced and was not misled as the material relied upon by the Crown arose out of his evidence.  However, the case the appellant was facing was that of being the principal party in respect of the fire.  The acts relied upon by the Crown in respect of that were the actual acts relating to the lighting the fire on the night that the church was burnt down.

[37]      The  Crown,  in  relying  upon  the  events  in  the  prison  yard,  was relying upon acts of an entirely different nature some months before.  That was not the charge that the appellant had gone to Court to meet or that he had addressed in his defence.  He was never given a fair opportunity to take issue with that charge or to answer it.  He was left to deal with it as best as he could in his final address.

[38]      The evidence upon which the Crown sought to rely for proceeding in the alternative against the appellant was an alleged admission by him that he was  a secondary party.    However,  the comment  relied  upon  was in the context that he never intended or expected that the persons to whom he made it might act in the manner [suggested] by him.  If his language was taken at its face value it could not give rise to his conviction.

[39]      If the Crown intended to rely upon that language for his conviction as a secondary party, the appellant had to be given a reasonable opportunity to defend himself in respect of that.   He could well have sought to have

7      R v Shaw CA159/05, 22 November 2005.

8 At [31].

cross-examined other witnesses already called.  He might well have wished to give other evidence himself as to the particular conversation.  He might have sought to call other evidence in respect either of the conversation or of the context in which it took place.  Because of the course adopted at trial he had none of those opportunities.

[40] In that situation he had to have been prejudiced in his defence to the alternative allegation.  He had also to be seriously misled as to his position in defending  himself  when  the  Crown  changed  its  position  in  its  closing address without any prior warning to him or the Court.

…

[43]      It is of the essence that an accused person shall have fair notice of the allegations against him.  That simply never occurred in this case.  The alternatives being put to the jury were separated by place and time and involved wholly different acts on the part of the appellant.  The basis upon which the jury found the appellant guilty was simply not part of the case the appellant had to meet in the trial.   The defect in what occurred is so fundamental  that  it  cannot  be  corrected  other  than  by  quashing  the conviction and sentence and ordering a new trial.

[52]     In  Fraser  v  R,  Mr  Fraser  and  Mr  Figota  were  alleged  to  have  attacked Mr Davidson.9    The  Crown  opened  on  the  basis  that  Mr  Figota  had  bottled Mr Davidson and that Mr Fraser had assisted him by attacking one of Mr Davidson’s associates.   The Judge, however, permitted the Crown to close on the basis that Mr Figota had punched Mr Davidson and Mr Fraser had assisted him by bottling Mr Davidson.  The issue on appeal was “whether it was fair to [Mr Fraser] to permit the Crown to assert for the first time, in closing its case to the jury, that the appellant was the man who bottled Mr Davidson”.10 The Court held:11

We have no doubt that the Judge should not have permitted the Crown to close on that basis.  We have no doubt that led to a miscarriage of justice. [Defence  counsel]  had,  after  all,  not  had  to tackle those  witnesses  who thought it was the appellant who had bottled Mr Davidson, as the Crown case had been that all his aggression had been aimed at Mr van Stee.  He was implicated in the crime against Mr Davidson only by reason of what he had done to Mr van Stee.

[53]     In Worrell v R12  the appellant was charged with murder after an incident in which the car he was driving collided with a number of other vehicles travelling in

the opposite direction.  In opening the Crown relied on s 167(a), (b) and (d) of the

9      Fraser v R [2009] NZCA 520.

10 At [12].

11 At [31].

12     Worrell v R [2011] NZCA 63.

Crimes Act, that is that the defendant would be guilty if he intended to kill the deceased, intended to cause her grievous bodily harm, or intended to do an act he knew was likely to cause death.  However, in closing the Crown relied on s 167(c), that is, that Mr Worrell was guilty of murder because he intended to kill someone other than the deceased but by mistake or accident had killed the deceased.

[54]     This Court held that the change in the Crown’s position did not result in a

miscarriage of justice. The Court held:13

[58]     We do not see any similarity between the situation described in R v Shaw and the present case.  In R v Shaw, the Court’s concern was that the Crown had opened on the basis that Mr Shaw was the principal offender, whereas in closing the Crown case was also that he may have been a party. The Court saw this akin to the amendment of the indictment, for which leave would have been required, and in that case leave had not been sought.  A similar situation arose in a more recent case, R v Fraser.

[59]      In the present case, however, the reliance on s 167(c) did not involve the Crown in a change of course of the same magnitude as Shaw and Fraser. In both of those cases, the defence was left with the need to answer a case which was quite different from that outlined in the opening.  In the present case, the charge was murder and any of the bases outlined in s 167 could be relied on.  It is true that the Crown opening did not specifically deal with the fact  that  the  appellant  could  be  guilty  of  murder  if  he  had  the  intent described in s 167(b), but in respect of a different person.  However, there was no difficulty for Mr Goodwin in dealing with this in his closing, as he did capably.   There was no question in this case of the Crown needing consent to amend the indictment.   In short, we are satisfied that no miscarriage arose from what appears to have been an oversight by the prosecutor in her opening.

[55]     In the present case, putting aside for the moment the effect of the Judge’s direction, we consider that the change in the Crown’s position is of sufficient magnitude  to  give  rise  to  a  miscarriage  of  justice.    As  in  Shaw  and  Fraser, Mr Fa’avae was faced with a new factual allegation in closing that he did not have a chance to rebut through adducing evidence or via cross-examination.   The Crown effectively alleged in closing that Mr Fa’avae had become involved in the offending much earlier and had a much greater planning role than had been alleged in opening. In many cases, a change in the timing of the Crown case by a few days and a change in the defendant’s role similar to the change in this case would not be significant.  In

this case, however, given that there was little evidence of how exactly Mr Fa’avae

13     Footnotes omitted.

had come to be involved in the murder, the hood text message was highly significant. Had the Crown signalled in opening that it would allege Mr Fa’avae was involved at such an early stage, the defence may well have been able to call evidence to rebut that proposition.14

[56]     Contrary to the position in Worrell, counsel for Mr Fa’avae could not deal with the Crown’s change of tack in closing.  Because the issue had not been pursued during the trial there was no evidential basis for defence counsel to draw on to rebut the prosecutor’s assertion.  Accordingly, addressing the prosecutor’s submission in the defence’s closing address would only serve to repeat it.

[57]     Therefore, we conclude that the prosecutor erred by significantly changing

the Crown’s case in closing.

Error 2: Submission not supported by the evidence

[58]     The  second  problem  with  the  submission  in  closing  that  the  hood  text message referred to Mr Fa’avae is that it was not supported by the evidence.  As Mr Niven  and  the  Judge  noted  at  the  trial,15   there  was  no  evidence  on  where Mr Fa’avae was from or what the reference to the “hood” could mean.  Mr Finau had asserted that the text message referred to Mr Tunupopo.  So, the only evidence on who  the  text  message  referred  to  was  that  it  referred  to  Mr  Tunupopo,  not Mr Fa’avae.  Moreover, there was in fact information, of which the Crown ought to have   been   aware,   that   Mr   Finau   and   Mr Fa’avae   were   from   different neighbourhoods.16  Furthermore, the submission was incorrect in asserting that if Mr Turaki was not the person referred to, it had to be Mr Fa’avae.  Mr Tunupopo was on the same landing as Mr Finau, was a Crip and was actually from the same neighbourhood as Mr Finau. Accordingly, at best, the exclusion of Mr Turaki meant

either Mr Tunupopo or Mr Fa’avae was the accomplice.

14     While leave to call evidence could have been given at any time up to the jury’s retirement (Evidence Act 2006, s  98(5)), in reality it  was not possible for the defence to rectify the evidential issue at any time after the Crown’s closing.

15     See above, at [20]–[21], [31].

16     The suburb that Mr Fa’avae came from had been made clear in an earlier trial relating to a separate incident involving Mr Fa’avae.  Mr Boyack approached the prosecutor after the cross- examination on the hood text message and told him that Mr Fa’avae was from East Auckland while Mr Finau was from South Auckland.

[59]     In R v Stewart the Supreme Court held that because there was no evidential foundation for a submission that the appellant and his witnesses were motivated to lie “the submission should therefore not have been made”.17   In combination with the use of overly emotive and inflammatory language by the prosecutor, this made the trial unfair.18    Similarly, in Livermore v R the New South Wales Court of Criminal Appeal held that that a “submission to the jury based upon material which is not in evidence” could,  either  alone or in  combination  with  other errors, make a trial unfair.19

[60]     Accordingly, the prosecutor erred by making a submission in closing that was not based on evidence.

Error 3: Breach of the Judge’s ruling?

[61]     It was submitted for Mr Fa’avae that, following the Judge’s ruling to the contrary, the prosecutor “deliberately and wrongfully [planted] in the minds of the jury the idea that the appellant was the Crip from Finau’s neighbourhood, with whom Finau had been planning murder for several days”.

[62]     While we do not consider that the prosecutor deliberately flouted the Judge’s

ruling, there was clearly a serious misunderstanding.

[63]     The prosecutor viewed Potter J’s ruling too narrowly.  The prosecutor sought the admission of the hood text message against all three appellants on the basis that it was evidence of a joint enterprise to kill the deceased.   Potter J ruled against that application.20    Importantly, the question asked by the Crown was whether the hood text message was admissible against all three accused, not what submissions it was permissible to make on the basis of the ruling.  The focus in the chambers discussion and the ruling on joint enterprise is also significant.   The Judge ruled that a submission based on joint enterprise was not to be made.  It was possible, however,

to submit that the text message related to Mr Fa’avae without submitting that the

17     R v Stewart [2009] NZSC 53, [2009] 3 NZLR 425 at [28].

18 At [33].

19     Livermore v R [2006] NSWCCA 334, (2006) 67 NSWLR 659 at [31].

20 See above n 1, at [7].

jury should  find  Mr  Fa’avae  guilty on  the  basis  of  him  being  party to  a  joint

enterprise.

[64]     Accordingly,  although  the  Judge  made  it  quite  clear  that  the  Crown’s contention that the text message referred to Mr Finau was not to be pursued, the focus on joint enterprise may have given the impression that the Crown was not prohibited from submitting that the text message related to Mr Fa’avae so long as the submission did not rely on s 66(2) of the Crimes Act.  Moreover, the text message could still be used against Mr Finau to show that he had planned the attack.  It seems clear from the chambers discussion after the Crown’s closing that the prosecutor thought  that  he  was  entitled  to  make  the  submission  to  make  the  case  against Mr Finau and that any collateral damage to Mr Fa’avae’s case would be dealt with by the rule that the text message was not admissible against Mr Fa’avae.   The prosecutor had asked defence counsel if he should expressly mention that the evidence was not admissible against Mr Fa’avae, but had been asked not to.

[65]     As the Judge pointed out, however, it was going to be almost impossible for the jury to make the distinction between using the text message to support the proposition that Mr Finau had someone helping him and the proposition that the hood  text  message  was  evidence  of  Mr  Fa’avae’s  involvement.     The  clear implication from the Judge’s ruling was that the prosecutor should avoid any suggestion that the hood text message referred to Mr Fa’avae.  If the evidence was not admissible against Mr Fa’avae there was no need to suggest he was the person referred to in the text message – for the purposes of the case against Mr Finau all that mattered was that the text message showed some degree of planning. As these points were not spelt out to the prosecutor, it seems that he made a genuine error in thinking that  simply  not  expressly  suggesting  that  the  evidence  was  admissible  against Mr Fa’avae was enough.

[66]     The prosecutor’s error was particularly serious because although he did not expressly suggest that the hood text message should be used against Mr Fa’avae, the parts of his closing where he refers to the hood text message, when viewed in isolation, come across as an invitation to the jury to use the hood text message to implicate Mr Fa’avae.   The prosecutor said that the text message “confirms he is

doing it with the Crip from my hood but not Mr Turaki.   So that only leaves one person, members of the jury, Mr Petani Fa’avae”.   He followed this with an instruction to the jury to read “Crip from my hood” as Mr Fa’avae.

[67]     Despite the starkness of the passages when viewed in isolation, when the passages are viewed in  context it  seems that the prosecutor made a mistake in pressing his case against Mr Finau rather than deliberately trying to use the text messages as evidence against Mr Fa’avae.  The passage above appeared in a part of the closing where the prosecutor was trying to make out the case against Mr Finau and Mr Lisiate.  The reference to the hood text message is in the context of reference to a number of other text messages where the Crown alleged Mr Lisiate encouraged Mr Finau to plan the attack and Mr Finau responded that he would do so.  Mr Finau had contended that the text messages referred to other matters.   The focus in the relevant  part  of  the  closing  is  on  Mr Finau,  which  supports  the  prosecutor’s explanation that he only intended the hood text message to be used as evidence against Mr Finau.

[68]     While we do not consider that the prosecutor’s error was a deliberate flouting of the Judge’s ruling, it was a mistake of the most serious kind.  The prosecutor’s submission  was  contrary  to  the  clear  implication  of  the  Judge’s  ruling.    The prosecutor ought to have thought through the implications of suggesting, even in support of the case against Mr Finau, that Mr Fa’avae was the person referred to in the hood text message.  Furthermore, even on the prosecutor’s mistaken approach, the use the prosecutor made of the hood text messages went much further than was necessary to make out the case against Mr Finau – all the prosecutor needed to say was that the text messages made it clear Mr Finau had planned something with someone else.

Was the prosecutor’s conduct justified by the failure of the defence to cross-examine on who the hood text message referred to?

[69]     Crown counsel suggested that there was no unfairness in the prosecutor’s approach in his closing because, under s 92 of the Evidence Act, the defence ought to have cross-examined Mr Finau or Mr Tunupopo about who the accomplice referred

to in the hood text message was.   Because the defence had failed to do so, it was permissible for the Crown to proceed with its theory of the case.

[70]     There is in our view no merit in this submission. Section 92 provides:

92       Cross-examination duties

(1)       In  any  proceeding,  a  party  must  cross-examine  a  witness  on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

(2)      If a party fails to comply with this section, the Judge may—

(a)       grant   permission   for   the   witness   to   be   recalled   and questioned about the contradictory evidence; or

(b)       admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or

(c)      exclude the contradictory evidence; or

(d)      make any other order that the Judge considers just.

[71]     The duty only applies to “significant matters that are relevant and in issue”. Up until the cross-examination of Mr Finau the identity of the person who sent the text message was not in issue.  In cross-examination by the Crown Mr Finau gave evidence that it did not refer to Mr Fa’avae, which was consistent with the defence case.  Accordingly, there was nothing to contradict the evidence of the witness and s 92 was not triggered.

[72]     Even if the defence did have some duty to cross-examine, the remedies for that are in s 92(2).  The remedy does not include allowing the prosecution to make a submission inconsistent with its closing, that is not based on the evidence and that is contrary to the Judge’s ruling.

Were the problems in the prosecutor’s conduct cured by the Judge’s direction?

[73]     We recognise at the outset that the trial Judge found herself in a very difficult situation, once the prosecutor failed to comply with her direction about the use to

which the text message could be put.  In our view, in the heat of trial, she did the best she  could  to  correct  the  prosecutor’s  error  and  complete  the  trial  fairly.    The approach taken by the Judge could reasonably have been viewed as adequate, at the time the direction was given.   For the reasons that follow, however, the benefit of hindsight suggests that a direction of any type could not have cured this particular problem.

[74]     The Judge gave a direction that the jury were to “completely set aside any thought or understanding that the person referred to by [Mr Finau] in those two texts is [Mr Fa’avae]”.   Mr Illingworth, for Mr Fa’avae, essentially submits that this direction was not sufficient to cure the problems in the prosecutor’s closing address for two reasons.

[75]     The first deficiency Mr Illingworth identifies is that the Judge explained the legal  basis  for  the  direction  incorrectly.    The  jury  was  told  the  prosecutor’s submission was impermissible because the hood text message was not admissible against Mr Finau as it was an out-of-court statement.  The explanation, however, was not correct as the evidence had been confirmed by Mr Finau.  Accordingly, the jury could have become confused over whether or not the statement was an out-of-court statement and how it could be relied upon.

[76]     The  second  problem  identified  by  Mr  Illingworth  is  that  following  the direction the jury could have been left with the impression that although the factual basis for the prosecutor’s assertion was true, they were unable to rely on it for technical legal reasons.  There would therefore be a risk that the jury would rely on the prosecutor’s factual assertion.

[77]     We do not consider that either of the points made by Mr Illingworth mean that the direction was incapable of curing the errors by the prosecutor.  The Judge could not have been clearer in telling the jury they were to put aside any thought that Mr Fa’avae was the person referred to in the text message.  Although the legal basis

for doing so may have been incorrect,21 and may have appeared technical to the jury,

the Judge’s direction as to what the jury had to do was clear.  If the jury did set aside

21 See [42] above.

any thought that Mr Fa’avae was the person referred to in the text message, the prejudice to him would not eventuate.  In short, both of Mr Illingworth’s submissions assume that the jury would have ignored the Judge’s direction.  Accordingly, the risk of the jury doing so must be assessed.

[78]     This Court has stressed that appellate interference with a Judge’s direction will  be rare and  that  juries  should  generally be assumed  to  follow  the Judge’s directions.  In Ngatai-Check v R this Court reviewed the authorities as follows:22

[30]     The starting point … is this passage from R v Thompson,23 … :

[16]      Whether or not to discharge a jury which has heard a witness disclose illegitimate prejudicial material is for the discretion of the trial Judge on the particular facts.  An appellate court will not lightly interfere with the exercise of that discretion. It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.

[31]      Similarly in R v McLean,24  to which Williams J referred, this Court said:

[14]      The  legal  principles  are  well  settled.     Where  there  is inadvertent disclosure of prejudicial information about an accused the trial Judge has a discretion to discharge the jury. Whether it will be proper to do so depends on the facts of the particular case.  If the jury is not discharged, whether to give a direction and, if so, what direction in relation to the objectionable passage in the evidence, similarly depends on the facts of the particular case.  If the trial proceeds and the accused is convicted the ultimate question on appeal is whether a substantial miscarriage of justice occurred.

[32]     These  authoritative  statements  reinforce  the  truly  discretionary power exercised by the Judge. Appellate courts will only interfere if when declining an application to discharge the jury the trial Judge erred in law, failed to give proper weight to a relevant factor or gave improper weight to an irrelevant factor, or was plainly wrong.

[79]     In Pickering v R this Court held that a direction could cure speculation by the

Crown prosecutor in his closing address.25     On one incident the jury was told to disregard  a  matter  on  which  the  prosecutor  had  addressed  them.    The  Judge’s

22     Ngatai-Check v R [2011] NZCA 543.

23     R v Thompson [2006] NZSC 3, [2006] 2 NZLR 577 at [16].

24     R v McLean (Colin) [2001] 3 NZLR 794 (CA).

25     Pickering v R [2012] NZCA 311 at [161]–[163]. Leave to appeal was refused by the Supreme

Court: [2012] NZSC 80, see especially at [4].

direction on other items of speculation, which was said by the Court to adequately cover any concerns, was in the following terms:26

These various matters of speculation were not based on any evidence and I direct you to disregard them.  I have already made it clear to you that you must not speculate or guess.

[80]     In Weatherston v R this Court held:27

The criminal system proceeds on an assumption that judges’ directions are faithfully followed by juries: throw away that assumption and every verdict becomes suspect.  We acknowledge immediately that some concerns might be so significant that the court (either the trial court itself or an appellate court) feels uneasy about dealing with those concerns by way of direction. In those cases, aborting the trial and starting again becomes the only safe solution.

[81]     Despite the high threshold for overturning the Judge’s exercise of discretion to give a direction, and the similarity of the direction in the present case to that in Pickering, we do  not consider that the errors  in this case could be cured by a direction.  We consider that this is one of the cases where, in terms of Weatherston, the concern with what occurred at trial is so significant that the only safe option was to abort the trial.

[82]     First, the sheer significance of the hood text message to the case against Mr Fa’avae means that there was too high a risk that the jury would fail to follow the direction.  In Pickering the speculation was on more minor, circumstantial matters. The speculation related to propensity evidence and was summarised by the Court in

the following terms:28

… he speculated that the male voice that Barry Nathan Junior heard was Mr Moehurori’s voice.  He speculated that the chip of paint missing from the linen cupboard door was washed down the shower.  He speculated on how the blood found around the house and particularly on the door in the hallway may have been cast.  He speculated that the accused showered Dylan in an attempt to revive him.

[83]     Here the speculation was on a truly crucial piece of evidence.  The hood text

message,  as  it  was  construed  by  the  prosecutor,  showed  that  Mr  Fa’avae  had

26     At [162]

27     Weatherston v R [2011] NZCA 276 at [24].

28 At [162].

murderous intent far more strongly than any other evidence in the Crown case. Given the significance of the evidence a direction was insufficient to ensure the jury could adequately perform its role.

[84]     Second, the prosecutor’s errors were particularly serious.  This is not a case where evidence has simply been accidentally referred to with no further elaboration, or  where  the  jury  was  invited  simply  to  speculate  on  evidence.    Rather,  the prosecutor, in strident terms, expressly told the jury that the hood text message referred to Mr Fa’avae when there was no evidential basis for doing so.

[85]     Third, the direction did not cure the unfairness in the late change to the Crown case.  It is clear from the affidavits filed by Mr Niven and Mr Boyack that the defence could have tried to positively rebut the suggestion that Mr Fa’avae was the person referred to in the text message.  This could well have changed the shape of his case significantly.  Given the importance of the hood text message Mr Fa’avae was entitled to make a decision about how his case should be run with respect to it.

[86]     Accordingly, the prosecutor’s errors were not cured by the Judge’s direction.

Unfair trial or miscarriage of justice?

[87]     Given our conclusion that the Judge’s direction did not cure the prosecutor’s errors it is necessary to assess whether the errors resulted in an unfair trial or a miscarriage of justice.  In R v Stewart the Supreme Court indicated that prosecutorial error may result in miscarriage of justice or an unfair trial.29    The key difference between the findings is that if there is an unfair trial there can be no recourse to the proviso in s 385 of the Crimes Act.30    The Supreme Court did not provide a bright line test for when an error would make a trial unfair rather than only leading to a miscarriage  of  justice.    The  Court  adopted  the  test  stated  by  Lord Bingham  of

Cornhill in Randall v R:31

29     R v Stewart [2009] NZSC 53, [2009] 3 NZLR 425 at [32]

30     R v Condon, [2006] NZSC 62, [2007] 1 NZLR 300 at [77]; R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31].

31     At [32], quoting Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].

… it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said.   Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction.  It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice.   But the right of a criminal defendant to a fair trial is absolute.   There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a  trial  as  unfair  and  quash  a  conviction  as  unsafe,  however  strong  the grounds for believing the defendant to be guilty.  The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

[88]     In Stewart the prosecutor had alleged the appellant and his witnesses had a motive to lie with no evidential foundation for doing so.  He had also used highly emotive and inflammatory language in criticising one of the appellant’s witnesses. The Court found that conduct was such a blatant departure from good practice and so prejudicial that the trial was unfair.

[89]     This case does not have the element of inappropriate emotive language that Stewart did.   There was, however, a high degree of prejudice associated with the errors and there was a significant departure from the Judge’s ruling.  Moreover, the unfairness involved in a late change to the Crown case goes to the heart of the right to a fair trial insofar as it means the defendant does not truly know the case against him or her until it is too late to respond.  A late change to the Crown’s theory of the case  thus  undermines  the  right  to  present  an  effective  defence  and  examine witnesses.   In combination, these factors reach the standard of rendering the trial unfair.

Conclusion

[90]     The prosecutor made three serious errors in his closing, namely changing the Crown case, making a submission not based on the evidence and breaching the Judge’s ruling.  The seriousness of the prosecutor’s errors made the trial unfair.  This unfairness  could  not  be  cured  by a  direction  because  of  the  importance  of  the

evidence in the context of a relatively weak Crown case and the very late stage at which the errors occurred.

Result

[91]     The appeal is allowed.

[92]     The conviction is quashed and the case is remitted to the High Court for a retrial.

Solicitors:

J E Boyack, Auckland for Appellant
Crown Solicitor, Napier for Respondent