Harmer v The Queen
[2016] NZHC 2155
•13 September 2016
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2016-441-19 [2016] NZHC 2155
BETWEEN ELFENDER-LEE HARMER
Appellant
AND
THE QUEEN Respondent
CRI-2016-441-20
BETWEEN LEO DAVIS WINITANA Appellant
ANDTHE QUEEN Respondent
Hearing: 30 August 2016 Counsel:
W Hawkins for Mr Harmer M J Phelps for Mr Winitana J E Reilly for Respondent
Judgment:
13 September 2016
JUDGMENT OF CLIFFORD J
Introduction
[1] Following a Judge alone trial in the District Court before Judge Adeane the appellants, Leo Winitana and Elfender-Lee Harmer, were convicted on one charge each of aggravated burglary and two charges each of assault with a weapon. Messrs
Winitana and Harmer now appeal their convictions.1
1 R v Winitana and anor [2016] NZDC 10182.
HARMER v THE QUEEN [2016] NZHC 2155 [13 September 2016]
[2] In appealing his conviction, Mr Winitana says Judge Adeane was wrong to admit a hearsay statement from a complainant who, after the incident in question, had moved to Australia. A miscarriage of justice resulted.
[3] In appealing his conviction, Mr Harmer also says the Judge was wrong to admit that hearsay statement. In addition he says:
(a) His conviction under s 66(1) of the Crimes Act 1961 as a party to aggravated burglary and assault with a weapon was not available on the evidence.
(b)It is not open for this Court on appeal to substitute a conviction on those charges as a party under s 66(2). Even if it was, there was an insufficient evidential basis for finding Mr Harmer guilty of aggravated burglary, and assault with a weapon, as opposed to simply burglary and assault.
[4] I will deal with each of those grounds of appeal in turn. In doing so, I will consider relevant aspects of the evidence and the Judge’s ruling and verdicts. By way of context, I first provide the following overview.
Overview
[5] Mr Tawhai, Mr Winitana and Mr Harmer were, or had been, members or prospects of the Mongrel Mob. They were all known to each other. On the evening of 29 June 2015 Mr Tawhai was asleep with his partner, Suzanne Hapuku-Te-Nahu, in their home at Flaxmere where they lived with their two children. There is no dispute that, in the early hours of the morning, Mr Tawhai and then Ms Hapuku- Te-Nahu were woken when Messrs Winitana and Harmer arrived at the window of their bedroom. Mr Tawhai spoke to them through that open window. At one point, Ms Hapuku-Te-Nahu heard him say, “no”. Almost immediately after that, Mr Winitana smashed through the front door and entered their bedroom. A fracas ensued.
[6] The Crown said that, during that fracas, Mr Winitana had a weapon, a spade. He struck both Mr Tawhai and Ms Hapuku-Te-Nahu with that weapon. Hence the charges of aggravated burglary and assault with a weapon.
[7] At some point Ms Hapuku-Te-Nahu left the bedroom, went to the lounge across the hall, called the police, and then returned.
[8] Shortly after that Mr Winitana, together with Mr Harmer who had by then also entered the bedroom, left.
[9] The police attended at the address that morning. Formal statements were taken shortly afterwards from Mr Tawhai and Ms Hapuku-Te-Nahu.
[10] Later the police had some difficulty locating both Mr Tawhai and Ms Hapuku-Te-Nahu in order to serve summonses on them to be witnesses at Mr Winitana and Mr Harmer’s trial. Eventually, Ms Hapuku-Te-Nahu was located, and served with a summons. Mr Tawhai had moved to Australia. He was not found.
[11] The trial before Judge Adeane alone took place on 4 April 2016. The Judge first considered the Crown’s application to admit the hearsay evidence comprising the written statement made by Mr Tawhai to the police. The Judge admitted that evidence. The trial itself occupied the rest of the morning of 4 April.
[12] The Judge delivered his oral verdict later that day. On all three charges the Judge found Mr Winitana guilty as principal, and Mr Harmer as party. The Judge subsequently sentenced Mr Winitana to five years’ imprisonment and Mr Harmer to three years’ imprisonment.
[13] There is no challenge to the Judge’s sentencing decisions.
Mr Tawhai’s hearsay statement – wrongly admitted?
The statement
[14] Mr Tawhai’s hearsay statement recorded that at 1.30 am on 29 June 2015 he
woke when someone banged on their front door, hard and loud. He went to the
bedroom window, and opened it, to see who was banging on the front door. He saw two people. One of them came over to the window. He saw it was Mr Harmer. Mr Harmer asked him to come outside. He said no.
[15] The person at the door then said, “Open up the door”. He recognised that person as Mr Winitana.2 Mr Harmer again said come outside. He said no. He then heard the sound of glass on the front door breaking and smashing. Mr Winitana came into the bedroom. He was holding a spade. Mr Tawhai reckoned Mr Winitana must have gone around to the back of the house to get the spade, triggering the garage lights which shone into the section. Mr Winitana threatened him with the spade. He was worried he could be knocked out. Everything happened really fast. He managed to dodge the spade when Mr Winitana swung it at him. He got hold of
the spade.
[16] At this point he saw Mr Harmer trying to come in through the bedroom window. Mr Tawhai managed to push him out while he was fighting with Mr Winitana. The scuffle continued. He was being punched in the head by Mr Winitana. He saw Mr Harmer in the bedroom. He thought he must have climbed through the window.
[17] At that point Mr Harmer said “That’s us, let’s go”. The two men left the house via the front door. Mr Tawhai followed the two men to the front door and could see them running away down the road.
The Judge’s decision
[18] The police record of Mr Tawhai’s formal statement is clearly hearsay evidence. It records the police version of what Mr Tawhai said. Its relevance lies in its truth.
[19] Section 18 of the Evidence Act 2006 provides for the general admissibility of hearsay statements. It does so in the following terms:
2 At the time Mr Tawhai made his statement, identification was an issue. Identification played little or no part at the Judge-alone trial.
18 General admissibility of hearsay
(1) A hearsay statement is admissible in any proceeding if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2) This section is subject to sections 20 and 22.
[20] Section 8 of the Evidence Act also applies. Accordingly, the Judge was required to exclude the hearsay evidence, notwithstanding the s 18 test had been met, if its probative value was outweighed by the risk of any associated unfair prejudice. In determining the issue of unfair prejudice, the Judge was required to take into account the right of the defendants to offer an effective defence.
[21] In determining that the hearsay statement would be admitted in evidence, the
Judge reasoned, by reference to s 18:
[2] … The statement was taken in a formal way by a trained officer. In terms of the format of the statement there could really be no better assurance that it was reliable. It includes a veracity certificate which on face value at least further supports the reliability proposition. It is however, importantly in my view, corroborated in material respects by another witness who is available, Suzanne Hapuku-Te-Nahu, although of course criticisms of her could also be made given the partisan nature of the whole episode.
[3] Finally, it seems to me that the statement relates to circumstances in which the witness Tawhai has no apparent motive to mislead either the officer taking the statement or the Court receiving it. It deals with a tumultuous invasion of a family home in the early hours of the morning and that remains the fact regardless of what background might lie behind.
[22] The Judge then recorded that the admission of a hearsay statement was inherently prejudicial to both defendants, and their right to offer an effective defence, but the extent to which that prejudice was unfair was difficult to gauge until the particular nature of the defence was made known. The Judge noted his admissibility ruling was not in any event determinative of the weight he would, as the fact finder,
give to the evidence at the end of the day. The weight he would attach to the statement could be adjusted or indeed extinguished if the circumstances of the trial so required.
Appeal
[23] For Mr Winitana, Mr Phelps submitted that the Judge had failed to consider the veracity of Mr Tawhai, a key consideration in determining the reliability of the statement. Importantly, Mr Tawhai’s background as a patched member of the Mongrel Mob, his formidable list of previous convictions, and the history of animosity between him and Mr Winitana, raised concerns about Mr Tawhai’s motive to give exaggerated or false evidence. There was prejudice to Mr Winitana because Mr Tawhai could not be cross-examined on those matters.
[24] Furthermore, the Judge had not considered and reached a conclusion on the question of Mr Tawhai’s unavailability as a witness at all.3
[25] For Mr Harmer, Mr Hawkins largely adopted Mr Phelps’ submissions on this
aspect of Mr Harmer’s appeal.
Analysis
[26] Although the Judge concluded that the circumstances relating to the statement provided reasonable assurance that it was reliable, he addressed neither whether Mr Tawhai was unavailable as a witness nor whether undue expense or delay would be caused if he was required to be a witness. If that means Mr Tawhai’s hearsay statement was admitted in error, the question then becomes whether a miscarriage of justice resulted. Determining the answer to that question effectively involves asking whether any material prejudice to Messrs Winitana and Harmer resulted. I will, therefore, deal with the “unavailability” appeal point first, and then
with the question of prejudice.
3 Section 18(2).
Was Mr Tawhai unavailable?
[27] Section 16(2) of the Evidence Act provides that a person is unavailable as a witness if, as relevant, the person:
(b) is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
…
(d) cannot with reasonable diligence be identified or found.
[28] A Detective Alexander gave affidavit evidence as to the circumstances in which Mr Tawhai’s statement was taken, and as to the events which led up to the hearsay application. As regards the latter, the Detective’s evidence was that he began looking for Mr Tawhai and Ms Hapuku-Te-Nahu in January 2016 to serve summonses on them. Telephone calls went unanswered. The Detective found out that they had moved address. Further inquiries by the Detective were initially unsuccessful in locating either of them.
[29] In March 2016 the Detective spoke with Mr Tawhai’s father. Mr Tawhai’s father told the Detective Mr Tawhai had left New Zealand and gone to Australia. The Detective then contacted Immigration New Zealand. He was advised that Mr Tawhai had left New Zealand on 4 March 2016. The Detective said that further inquiries had not revealed any identifiable address or contact details for Mr Tawhai in Australia.
[30] After some time the Detective located Ms Hapuku-Te-Nahu. Ms Hapuku-Te- Nahu told the Detective Mr Tawhai was living on the Gold Coast with family members, an aunty or a cousin. He did not stay in one place, but was moving around for work. Ms Hapuku-Te-Nahu did not provide any more details. The Detective finally said that he would continue to try to locate Mr Tawhai but had no confidence that he would be able to do so and have him return to New Zealand prior to the trial scheduled for 4 April 2016.
[31] The Detective did not provide any detail of the nature or extent of the inquiries the police had made with a view to locating Mr Tawhai in Australia. In
particular, the Detective did not say whether the police had contacted authorities in
Australia for assistance.
[32] Given the matters that were before the Judge in terms of the Detective’s affidavit, it might be considered that the Judge had implicitly reached the conclusion that Mr Tawhai was unavailable, so that s 18(2)(b) had been satisfied. Whether the Judge did or did not implicitly reach such a conclusion is not the answer to this aspect of the appeals. In my view, the section requires an explicit finding. Given that there was no evidence from the police as to inquiries of Mr Tawhai’s possible whereabouts with relevant authorities in Australia, it is not clear to me that the prosecution did establish Mr Tawhai’s unavailability.
[33] New Zealanders move to live in Australia, both on an explicitly permanent basis and on a longer term temporary basis, with great regularity, even if at the moment the numbers are down. When questions of witness unavailability are raised, and it is known the witness has moved to live in Australia temporarily or permanently, I think it is reasonable to expect the police to make inquiries of the Australian authorities when trying to locate that person.
[34] I am satisfied that there was an error in the Judge’s decision, in his failure to
determine Mr Tawhai’s unavailability.
[35] The question becomes whether that error has caused a miscarriage of justice.
Inability to cross-examine Mr Tawhai – prejudice?
[36] The question of whether the admission of Mr Tawhai’s hearsay statement caused a miscarriage of justice effectively asks whether Judge Adeane reached the appropriate conclusion as to unfair prejudice, including as addressed by the evidence he heard, the nature of the defence advanced, and the weight he placed, at the end of the day, on Mr Tawhai’s hearsay statement. I will consider this issue by reference to Ms Hapuku-Te-Nahu’s evidence, the extent to which that evidence provided the basis for the Judge’s verdict and the opportunity that evidence provided for cross- examination by defence counsel.
[37] Ms Hapuku-Te-Nahu’s evidence in chief can be summarised as follows:
(a) On the evening of 29 June 2015 she was asleep, with her partner Mr Tawhai, in their bed at their home in Flaxmere. She awoke to hear Mr Tawhai talking to someone at the window. She heard Mr Tawhai speaking with the men outside the window for a couple of minutes. She heard Mr Tawhai saying “no”. The window was open, and Mr Tawhai had pulled the curtains over. At that point, Ms Hapuku- Te-Nahu did not recognise the voices of the men Mr Tawhai was talking to.
(b)She then heard a smash. The sound came from their front door. Just seconds after she had heard the sound of smashing, a man came into their bedroom. She could not initially see his face. She saw he was holding something in his hands above his head. At first she thought it was a bat. The man was swinging that object around “everywhere”, including hitting Mr Tawhai on the back of the head. The man then came around to her side of the bed. At that point, the man hit her with that object. She saw the man’s face and recognised him as the appellant, Leo Winitana. Mr Winitana was a friend of Mr Tawhai’s. She also saw that the object was a spade. It was the spade that she and Mr Tawhai left outside, leaning on the house. They used the spade to clean up after their dog. It had not been inside their house when they went to bed.
(c) Ms Hapuku-Te-Nahu ran from the bedroom to the lounge across the hallway to ring the police. She was there for a couple of minutes. While she was on the phone she could hear banging from the bedroom.
(d)When she returned to the bedroom Mr Harmer was there. She did not see how Mr Harmer got into the bedroom. But, when in the lounge, she had not seen him come through the front door. She thought, therefore, that he came through the window. Mr Tawhai and
Mr Winitana were still fighting. Mr Winitana was still swinging the shovel.
(e) Ms Hapuku-Te-Nahu did not see Mr Harmer participating in the fight.
All she described him doing was saying to her, “I'm sorry about this” and “We gotta go”. At that point Mr Winitana stopped hitting Mr Tawhai, and Mr Harmer and Mr Winitana ran out of the room together into the hallway and out through the front door.
[38] In cross-examination, Ms Hapuku-Te-Nahu acknowledged that there had been a disagreement between Mr Tawhai and Mr Winitana in the past: Mr Winitana had taken a car belonging to Ms Hapuku-Te-Nahu. She also acknowledged Mr Tawhai and Mr Winitana had both been in the Mongrel Mob together, as had Mr Harmer. Ms Hapuku-Te-Nahu acknowledged that she could have been struck by the spade by accident during the tussle between Mr Winitana and Mr Harmer.
[39] When pressed, Ms Hapuku-Te-Nahu was certain that:
(a) she had seen Mr Winitana with the spade, and hitting Mr Tawhai with it;
(b) the front door had been smashed “on the way in”; and
(c) the spade was not kept in the house and was not brought into the house after the incident by Mr Tawhai.
[40] Similarly, when pressed, Ms Hapuku-Te-Nahu denied that Mr Winitana had simply engaged in a fist fight with Mr Tawhai or that she could have been mistaken about the presence of the spade.
[41] There was no real challenge to Ms Hapuku-Te-Nahu’s evidence on the points that:
(a) it was Mr Winitana and Mr Harmer who had come into their bedroom that night; and
(b)there had been a violent fracas in the bedroom between Mr Winitana and Mr Tawhai, involving – in the way she had described – Ms Hapuku-Te-Nahu.
[42] There was little in Mr Tawhai’s statement that went beyond the evidence given by Ms Hapuku-Te-Nahu and on which she was cross-examined. Mr Tawhai did explicitly say that it was Mr Winitana who smashed open the front door because, at that point, Mr Harmer was speaking to Mr Tawhai through the open window. Given, however, Ms Hapuku-Te-Nahu’s unchallenged evidence of Mr Winitana’s appearance in their bedroom seconds after she heard the front door being smashed down, nothing turns on that. Similarly, Mr Tawhai did not actually see Mr Harmer climbing into the bedroom through the window. He inferred he must have done – as did Ms Hapuku-Te-Nahu, given that she was in the lounge adjacent to the front door and the bedroom door, and did not see Mr Harmer enter that way before she returned to the bedroom to confront him as well.
[43] The narrative of facts Judge Adeane set out in his verdict relied essentially on Ms Hapuku-Te-Nahu’s evidence. The Judge began his narrative at the point Ms Hapuku-Te-Nahu woke up. Noting that he had admitted Mr Tawhai’s hearsay statement, he continued his narrative by reference to Ms Hapuku-Te-Nahu’s evidence. He further noted her evidence confirmed in material respects that set out in Mr Tawhai’s hearsay statement.
[44] The Judge essentially based his verdict on the fact that, at trial, there had been no real challenge to the fact that the two men had been Mr Winitana and Mr Harmer. Moreover, the evidence he had heard from Ms Hapuku-Te-Nahu, as she had been cross-examined, provided the factual basis for the findings he reached. On appeal, there was no challenge to the Judge’s conclusion Mr Winitana had smashed the front door down. It is in that context that the question of material prejudice must be addressed.
[45] It is, in my view, difficult to identify any such prejudice.
[46] At the hearing of the appeal, Mr Phelps emphasised the fact that Mr Tawhai was not present as a witness impacted on his ability to cross-examine Mr Tawhai as to the background circumstances, and the possibility they had led Mr Tawhai to give exaggerated evidence. Given Ms Hapuku-Te-Nahu unchallenged evidence as to what actually happened, I do not think much can be made of that either. Whatever the reason was for Mr Winitana and Mr Harmer to come visiting that evening, it would not excuse or reduce the seriousness of the conduct that Ms Hapuku-Te-Nahu observed, gave evidence on and was cross-examined about.
[47] In my view, therefore, the error the Judge may have made in ruling the hearsay statement admissible did not, in these circumstances, cause a miscarriage of justice.
[48] I therefore dismiss Mr Winitana’s appeal against conviction, and that of
Mr Harmer as well, to the extent it was based on that ground.
Mr Harmer wrongfully convicted as a party?
The Judge’s decision
[49] I now consider Mr Harmer’s separate appeal against his conviction as a party
to the offending by Mr Winitana.
[50] Mr Harmer was charged as a party to Mr Winitana’s offending under both of
subs (1) and (2) of s 66.
[51] In finding Mr Harmer guilty as a party, the Judge reasoned:
[17] I see no impediment to the further conclusion that at some stage during this attack Mr Harmer also came inside the house. It appears that his physical contribution to matters was nothing more than presence and some sort of half-hearted apology to the female complainant when she returned to the room having called the police. He may have made a comment that the two should then leave.
[18] The question, however, is whether at the time Mr Winitana made his entry into the house, which I am satisfied on the evidence can be safely inferred to have involved the kicking in of the front door, that Mr Harmer intended by his presence to encourage or assist Mr Winitana in the criminal adventure that he was undertaking? As I say what might not be safely
inferred during an afternoon may be safely inferred at half past one in the morning. This was not a group of people present for a barbecue.
[19] Mr Harmer was plainly one of at least two men present. He was present at the verbal argument. He was very shortly after the breaking open of the house and the launching of the assault also present in the bedroom. He is gang affiliated with Mr Winitana (and indeed the complainant) or has been. In the circumstances in my view any conclusion but that he was there to lend weight of numbers to Mr Winitana’s endeavours and to assist or encourage him by so doing would be fanciful. The position might be quite different at a different time of day but in these circumstances in my view the inference, absent anything to obstruct it, flows comfortably enough from what is known about the activities on the night of Mr Winitana – his apparent associate.
[52] Those remarks indicate that the Judge was considering Mr Harmer’s guilt or
innocence with reference to s 66(1).
[53] For Mr Harmer, Mr Hawkins’ submission was that the Court, on the evidence, was wrong to find that Mr Harmer had assisted Mr Winitana by words or conduct or both. Emphasising the approach taken by the Supreme Court in Ahsin v R,4 the evidence neither established actual assistance in the aggravated burglary, nor abetting or encouraging, or incitement, counselling or procuring. Rather, the evidence was of presence only, that presence was entirely equivocal and the inference the Judge drew from Mr Harmer’s presence, of assistance (or encouragement or incitement), was totally unsafe.
[54] The Crown advanced no reply to Mr Hawkins’ submission that a s 66(1) basis of conviction was not available. Rather, the Crown supported the Judge’s finding on, in its words, the following basis:
In light of how the evidence unfolded at trial the respondent prefers attribution of guilt for appellant Harmer pursuant to s 66(2) provisions.
[55] In those circumstances, I proceed on the assumption (which may or may not be the case) that s 66(1) was not available to found a party conviction, and that the only available basis for a party conviction here was pursuant to the provisions of
s 66(2).
4 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493.
[56] That said, Mr Hawkins acknowledged that unless I was prepared to follow the approach of the United Kingdom Supreme Court in its recent decision R v Jogee, Ruddick v R,5 and not that of our Supreme Court in Uhrle v R,6 then his argument that a conviction under s 66(2) was not available could not succeed. As I told Mr Hawkins at the hearing, it is not for this Court to decide not to follow the New Zealand Supreme Court.
[57] On that basis, I dismiss that aspect of Mr Harmer’s appeal.
Conviction as a party to aggravated burglary?
[58] There remains the issue of whether Mr Harmer’s convictions for aggravated burglary and assault with a weapon were available, as opposed to convictions for burglary and assault simpliciter. Mr Hawkins’ submission was that, even if Mr Harmer was a party to Mr Winitana’s burglary and assault offending, Mr Winitana’s use of the spade as a weapon could not, in the circumstances, be properly attributed to Mr Harmer as a party.
[59] The evidential basis for that argument is the fact that the spade Mr Winitana used was one he picked up after arriving at the property, and not beforehand.
[60] In my view, that evidence, taken together with the words Ms Hapuku- Te-Nahu heard from Mr Harmer in the bedroom, count against attributing to Mr Harmer – either under s 66(1) or s 66(2) – the necessary knowledge and intent that a weapon would be used as part of the evening’s activities.
[61] By the same token, however, Mr Harmer’s was not a “mere presence” at the scene of the crime. Rather the available and fair inference is that he and Mr Winitana, friends and gang associates, went there together for the purpose of confronting Mr Tawhai and, if necessary, of unlawfully entering his house to do that. Again, in all the circumstances, I also think the safe and available inference is that physical violence against Mr Tawhai was within the joint contemplation of
Mr Winitana and Mr Harmer.
5 R v Jogee, Ruddick v R [2016] UKSC 8, [2016] 2 WLR 681.
6 Uhrle v R [2016] NZSC 64.
[62] That outcome conforms with the Judge’s robust assessment that, when two men arrive in the early hours at the window where a couple are sleeping, ask one of the couple to come outside and, when he declines, one of them forcibly bursts through the front door, it can be concluded that the joint enterprise included the possibility of unlawful entry and that the presence of the man who did not burst through the front door, but who shortly thereafter climbed through the window, is the basis for a finding of aiding and abetting.
[63] I therefore allow Mr Harmer’s appeal against his convictions for aggravated burglary and assault with a weapon, and substitute convictions for burglary and assault, as a party to Mr Winitana’s actions, accordingly.
[64] Mr Hawkins submitted that if I were to reach that conclusion, there should be an opportunity for further submissions on sentence. I agree.
[65] Mr Hawkins is to file his submissions within 14 days of this judgment, and the Crown no later than seven days thereafter.
“Clifford J”
Solicitors:
Public Defence Service, Napier for Mr Harmer
Crown Solicitor’s Office, Napier for Respondent