Fusitua v The King - [2023] NZCA 544

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA36/2023
[2023] NZCA 544

BETWEEN
TAMA FUSITUA
Appellant

AND

THE KING
Respondent

Hearing:
20 July 2023

Court:

French, Thomas and Moore JJ

Counsel:

Q Duff and G T Duff for Appellant
N J Wynne for Respondent

Judgment:

2 November 2023 at 4 pm

JUDGMENT OF THE COURT
A The appeal is allowed and the conviction for aggravated robbery is quashed.
B No retrial is ordered.

____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
[1]       On a Sunday afternoon in 2019, a man aged 64 was confronted in his garage by three young males. They threatened him and then seriously assaulted him causing injuries to his eye. His phone and iPad were stolen.
[2]       The incident was witnessed by three neighbours, one of whom called 111. Neither the neighbours nor the victim recognised the attackers, but they gave descriptions to the police. Two of the neighbours spoke to the attackers. The neighbours and the victim also stated they saw the attackers heading down the street in the direction of the Panmure town area, which was only a short distance away.[1] Later the police obtained CCTV footage from various businesses in the Panmure town area.
[1]Although this was disputed, on the evidence Panmure was the most likely direction.
[3]       The footage showed three young males walking together along the streets about half an hour after the time of the attack. It was not disputed that the appellant was one of the three shown in the footage.[2] The other was a Mr Aramoana and the third a younger person whose identity is suppressed because of his age.
[2]His name came to the attention of the police after portions of the CCTV footage were shown on television. When interviewed by the police, Mr Fusitua admitted being the person wearing a grey singlet and bucket hat.
[4]       The police alleged that the three males matched the descriptions given by the eyewitnesses and charged each of them with aggravated robbery. The young person was prosecuted in the Youth Court. We were not told the outcome of that prosecution. Mr Fusitua and Mr Aramoana (aged 20 and 21 respectively at the time of the incident) were tried together in the District Court. A hearing date for the joint trial had to be abandoned because Mr Fusitua failed to turn up and could not be found. A new date was set. When Mr Fusitua again absented himself, the trial Judge, Judge Thomas, decided to proceed without him.[3] Mr Fusitua was legally represented throughout.
[3]R v Aramoana [2022] NZDC 17815.
[5]       The jury acquitted Mr Aramoana but found Mr Fusitua guilty.[4]
[4]He was sentenced to a term of imprisonment of five years and six months: R v Fusitua [2023] NZDC 4396.
[6]       Mr Fusitua now appeals his conviction on the grounds the verdict was unreasonable because it is irreconcilable with the not guilty verdict of his alleged co‑offender. No issue is taken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fusitua v The King

Details

AGLC: Fusitua v The King [2023] NZCA 544
Case: [2023] NZCA 544
Decision Date: 2 November 2023 at 4 pm

CaseChat Overview and Summary

Tama Fusitua appealed against his conviction for aggravated robbery, which was found by the jury in the District Court. The appeal was heard by French, Thomas, and Moore JJ in the Court of Appeal of New Zealand. The central issue before the court was whether the jury's verdict of guilty against Mr Fusitua was unreasonable, given the acquittal of his co-defendant, Mr Aramoana. The court was required to determine if the evidence presented was sufficient to support the conviction of Mr Fusitua and if the acquittal of Mr Aramoana affected the conviction of Mr Fusitua.

The court held that the verdict was unreasonable and irreconcilable with the acquittal of Mr Aramoana. The court observed that the identification evidence was crucial, but it presented significant discrepancies, particularly concerning the tattoos described by one eyewitness. The court noted that Mr Fusitua was not asked about his tattoos during his police interview, despite it being common practice to record such details. The court also highlighted that some aspects of the identification evidence were generic and could apply to many young males of the same age and ethnicity. Given these issues, the court concluded that there was a risk of a miscarriage of justice and that it was in the interests of justice to quash the conviction. The court decided not to order a retrial, in line with usual practice when the Crown has failed to prove its charge.

The appeal was allowed, and the conviction for aggravated robbery was quashed. No retrial was ordered.

Orders