Heke v Police

[2021] NZHC 119

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000093

[2021] NZHC 119

BETWEEN

MAURI HEKE

Appellant

AND

THE QUEEN

Respondent

Hearing:	3 February 2021
Appearances:	R Gowing for Appellant M J Lillico for Respondent
Judgment:	10 February 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 10 February 2021 at 2.15 pm.

Registrar/Deputy Registrar

Date……………

Solicitors:Gowing & Co Lawyers Ltd, Whakatane Crown Law, Wellington

HEKE v R [2021] NZHC 119 [10 February 2021]

Introduction

[1]                   Mauri Heke was jointly charged with Eruera O’Toole that he wounded Daniel Tuhakaraina with intent to cause grievous bodily harm by stabbing him in the left flank. He was also charged (again jointly with Mr O’Toole) that he injured Daniel Tuhakaraina with intent to cause grievous bodily harm by punching him in the head causing loss of consciousness and bilateral nose fractures.

[2]                   Following a defended hearing before Judge J E MacDonald in the District Court at Whakatane the Judge found both charges proved.1 Mr Heke was convicted and sentenced. He appeals against his conviction.

Background

[3]                   Just prior to midnight on Christmas Day 2018, Daniel Tuhakaraina and Alan Tawa were confronted on the streets of Whakatane by three men (the Black Power group), one of whom was wearing a Black Power “Outbackz” patch. The Black Power group apparently assumed that because Mr Tuhakaraina and Mr Tawa wore some items of red clothing, that they were associated with the Mongrel Mob. When confronted, Mr Tuhakaraina and Mr Tawa ran away. Mr Tawa succeeded in getting away, but as the Judge put it, Mr Tuhakaraina was not so lucky. He was assaulted. He was stabbed twice, once in the left thigh and once in the left flank. The stab to the left flank caused a fracture to one of his ribs. He was also assaulted and knocked to the ground. While on the ground he was punched repeatedly to his face. His nose was fractured. He was rendered unconscious for a period. The assault was interrupted by Mr and Mrs Tuari-Hape who were passing in their car. The Black Power group walked away. Mr and Mrs Tuari-Hape assisted Mr Tawa and Mr Tuhakaraina. They took them to the address of a family member.

[4]                   The fact of the assaults on Mr Tuhakaraina and the extent of the injuries to him which supported the charges was not in issue. Prior to trial, Mr O’Toole had pleaded guilty. As the Judge noted, the sole issue on both charges was whether the Crown had proved beyond reasonable doubt that Mr Heke was the person who wounded (or in

1      R v Heke [2020] NZDC 11337.

relation to the second charge, injured) the complainant, or was a party to those actions in that he actively assisted or encouraged some other person to wound or injure the complainant.

District Court hearing and decision

[5]The Judge recorded:

[10] The complainant’s [Mr Tuhakaraina’s] evidence was that on Awatapu Drive he saw three males walking towards them. The complainant was not fazed initially, which seems to have been unlike Mr Tawa who was immediately concerned. The three males addressed them in a way which indicated that they were concerned that they might be involved with the Mongrel Mob. The matter proceeded to a situation where the three males started yelling and swearing causing Mr Tawa and the complainant to try to run away. Cans were thrown at them and cans hit them. Mr Tawa threw a bottle down which smashed, and it was at this point the complainant said that he saw one of the males pull out what looked like a shank or knife. He did not really get a good view of it. He described the person who did this as the short male. I took that to be the shortest of the three males. He was also the person who was wearing a gang patch. To the complainant it looked like a Black Power patch. Beyond that the complainant thought he was wearing a hat and he had a bandana over his face. The bandana was black with white patterns, similar to one later found by the police when they executed a search warrant at the defendant’s address on 4 February 2019.

…

[12]      Initially in his evidence, the complainant said he was unsure who punched him in the face but after refreshing his memory from a statement he had made to the police he said it was the short person, the one wearing the patch. He also said that he was the person who stabbed him below the rib cage. The complainant referred to blacking out and later remembered waking up in hospital. He was missing his Raiders’ hat, one of his Nike shoes and his cellphone.

[13]      In cross-examination the complainant was questioned about how initially he had told the police that there were three or four males who had approached them, but he confirmed that it was only three and he stuck to that. He referred to the fact that it was not the short male with the vest or patch who stabbed him in the leg. Plainly, the complainant was unable to identify the defendant. Instead for him it was a situation of identifying or pointing him out as the short male wearing the patch.

[6]                   Mr Tawa also gave evidence. He said he recognised the male producing the knife as being the defendant Mauri Heke. As the Judge observed, Mr Tawa only referred to the appellant by his Christian name as he did not know his last name. He said he knew him from friends and relatives and that he thought he had seen Mauri

around perhaps 10 times. He knew his father to be Rob Heke and his brother to be Ngaroa as he used to go to school with Ngaroa. Mr Tawa said he was friends with Ngaroa and sometimes they would hang out together. Mr Tawa said Mauri was wearing a Black Power Outbackz patch. He said he thought there were some side patches on the vest. Mr Tawa had been shown a photo montage by the Police on 4 January 2019. He had picked out Mr Heke as being one of the three males who assaulted Mr Tuhakaraina.

[7]The Judge noted:

[[4]] In cross-examination Mr Tawa was questioned by  Mr Tomlinson  about whether he could see the person’s face and he agreed that he did not because it was covered with a bandana. He also had a cap on. However, in re-examination he said that he did see the person’s face when he was being chased. He said that he got a good look from about two or three metres away. I allowed Mr Tomlinson to cross-examine further on that issue as it seemed to be at odds with what Mr Tawa had said in cross-examination. Mr Tawa denied that he had made it up, but his responses possibly undermined what he had said before. On reflection it may be that when he was being cross-examined he was talking about when seeing that person initially rather than later in the piece when he was chased by two people.

[8]                   The Judge then dealt with the evidence of Mr and Mrs Tuari-Hape. They had been to a function and were driving home with their children. Mrs Tuari-Hape was driving. They saw a young person, Mr Tawa, being chased by two males. Mr Tuari- Hape identified the first person chasing Mr Tawa as Mr Heke. He initially said he had known him since about 2007 but later said “I’d known him about four years” and regularly exchanged pleasantries, such as kia ora or hello with him. He said the defendant was wearing a blue cap and a Black Power Outbackz patch. He thought they were about 10 metres apart.

[9]                   Mr and Mrs Tuari-Hape initially spoke with Mr Tawa but did not pick him up. They drove off a short distance but then reflecting on what they had seen, they turned around and returned. They then saw Mr Tuhakaraina and at that stage they saw Mr O’Toole, Mr Heke and one other person. Mr Tuari-Hape said Mr Heke was the only one wearing a patch.

[10]               Under cross-examination Mr Tuari-Hape accepted he had never been introduced to the appellant and that his evidence concerning how long he would have

first met or seen him had changed. The Judge understood the final position to be that he had known the appellant for about four years before the incident in December 2018.

[11]               Mrs Tuari-Hape is a probation officer. She first noticed Mr Tawa. He was looking pretty nervous. She then identified the two males who were chasing Mr Tawa to be Mr Heke and Mr O’Toole. She said both had lived in the neighbourhood for many years and, in relation to Mr Heke, she said that he had reported to her about a week beforehand in her role as a probation officer. Mrs Tuari-Hape said Mr Heke was wearing his gang patch, a Black Power Outbackz patch. She was sure Mr O’Toole was one of the other two people.

[12]               Mrs Tuari-Hape was cross-examined about the distances involved. She agreed with the proposition that initially there was perhaps 50 metres between Mr Tawa and Mr Heke and Mr O’Toole when she first saw them, but later changed that to 50 yards. She agreed she could not hear what was being said. She agreed that she only saw Mr Heke for a brief glance, but she did observe him twice, first when they came upon the scene, and again when they returned to it. She did not remember him wearing a bandana covering his nose or mouth or wearing a cap. She did say she saw his face.

[13]               The Police later conducted a search warrant at Mr Heke’s home. There they located a vest with a gang patch and a knife. Mr Tawa had described the knife used by the attackers as being a little pocket knife that had gadgets on it. The knife seized by the Police was similar.

[14]               In his decision the Judge noted the inconsistencies in Mr Tuhakaraina’s and Mr Tawa’s evidence and said that if the matter had rested on the evidence of Mr Tawa and Mr Tuhakaraina:

[[16]] … I would take the view that the charges might not necessarily have been proved. Mr Tomlinson did make some headway in cross-examination with both those witnesses.

[15]               However, the Judge then considered the evidence of Mr and Mrs Tuari-Hape. He accepted their evidence of the identification of Mr Heke so that, in the end, in the Judge’s words:

[[18]] … I am in no doubt whatsoever that the defendant has been identified and identification has been proved beyond reasonable doubt.

The appeal

[16]               Mr Gowing confirmed that identification was the key issue. He submitted that the evidence did not support the Judge’s conclusion that identification had been proved beyond reasonable doubt. Despite reminding himself of the need for caution when it came to the identification evidence, the Judge had failed to exercise that caution in a proper way. The Judge had erred by not attempting to analyse the conflict between the evidence of the four witnesses, particularly concerning the issue in relation to Mr Heke’s patch. It was an accepted fact that Mr Heke’s vest with the Outbackz patch that was seized by Police, did not have circular patches on its side. However, both Mr Tawa and Mr Tuhakaraina had said that the assailant had side patches on his vest.

Further evidence

[17]               To support the appeal Mr Gowing sought leave to adduce affidavit evidence from Dr Jarrod Gilbert and Mr Putoko Tawhai. Dr Gilbert undertook a survey of gangs in New Zealand for the purposes of his PhD thesis. The essence of Dr Gilbert’s evidence is that: “it is extremely unlikely for one member to wear another member’s patch”. Mr Tawhai is, in his words, “currently running the boys in our club” (Black Power Outbackz Chapter). He deposed that the consequences of wearing someone else’s patch are harsh. The appellant seeks to adduce that further evidence to support the submission that, as the two complainants identified the assailant as having an Outbackz patch with side patches, and Mr Heke’s patch does not have side patches, he was not the assailant. The submission is that Mr Heke would not wear another gang member’s patched jacket.

[18]               For further evidence to be admitted on appeal the evidence must be fresh, credible and cogent.2 Mr Lillico submitted that the evidence failed the test for admissibility as cogent.

[19]In my judgment the proposed further evidence is neither fresh nor cogent.

2      Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71; and R v Bain [2004] 1 NZLR 638, (2003) 20

CRNZ 637 (CA) at [22] and [26].

[20]               It is clear from the Court transcript that the issue of the side patches was first raised by Mr Heke’s trial counsel Mr Tomlinson in cross-examination of Mr Tuhakaraina. Mr Tuhakaraina had not volunteered that evidence in his evidence-in- chief. I infer from that, that Mr Tomlinson and the appellant were aware of the issue before trial. It was clear from the photograph exhibit booklet and the admissions that Mr Heke’s patch and vest did not have side patches. To the extent the evidence of Dr Gilbert and Mr Tawhai has any relevance it could have been adduced and provided to the Court at trial.

[21]               However, the principal objection to the admission of the proposed further evidence is that it lacks any particular cogency. Even if admitted it fails to satisfy the test that it might reasonably had led to a finding of not guilty if it had been available before the Judge.

[22]               Identification witnesses often differ on matters of detail. The fact finder is required to consider all of the relevant evidence and circumstances. Mr and Mrs Tuari- Hape did not address the issue of whether Mr Heke’s vest had side patches in their evidence-in-chief and they were not cross-examined on the issue. Their evidence identifying Mr Heke as wearing the Outbackz patch jacket stands unchallenged on the point.

[23]               Mr Gowing is correct that defence counsel did not have an obligation to put questions about the side patches to Mr and Mrs Tuari-Hape, but the failure to do so means the evidence was left in a state where they positively identified Mr Heke, including that he was wearing a gang patch consistent with the gang patch found at his property.

[24]               Further, the proposed new evidence is opinion evidence about human behaviour. It cannot be said to be conclusory or absolute.

[25]I decline to admit the further evidence.

Discussion

[26]               Mr Gowing took the Court through the inconsistencies between the evidence of the four witnesses. Apart from the issue of the patch, and the distance between the parties, he submitted that the lighting was dark. Mr Tuhakaraina had said his assailant was wearing a bandana covering his nose and mouth.

[27]               Mr Tawa also accepted it was dark and that the offender wore a cap as well as the bandana.

[28]               In contrast Mr Tuari-Hape said there was a lot of light. He noted the offender was wearing a cap but did not refer to a bandana. Mrs Tuari-Hape accepted the offenders were at least 50 yards away and she had no interaction with them. She had a “very brief glance” of the offender. She did not recall seeing a bandana, but did remember a cap.

[29]               There are inconsistencies in the detail of the evidence of the four prosecution witnesses. In this Court’s experience of trials involving identification, that is not at all unusual. The task of the fact finder is to determine whether, after being properly directed (as the Judge reminded himself in this case) the evidence taken as a whole satisfies it that identification of the defendant is proved beyond reasonable doubt.

[30]               The evidence as to the identification of Mr Heke as the person who assaulted Mr Tuhakaraina with the knife, when taken as a whole, was significant. Three of the four witnesses had some prior knowledge of him. As Mr Lillico submitted, Whakatane is a relatively small community. Mr Tawa had some passing knowledge of the appellant. Mr Tawa also picked Mr Heke out in a photo montage identification. Mr and Mrs Tuari-Hape both had previous knowledge of Mr Heke. In Ms Tuari-Hape’s case the appellant had been in an interview with her only a week or so before.

[31]               As the Supreme Court and Court of Appeal have confirmed, prior knowledge of the identification witness is a circumstance in which the identification was made.3

3      Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [32]; and Lanivia v R [2019] NZCA 63 at [23].

The greater the familiarity of the witness with the alleged offender the more likely the identification is to be reliable (all other circumstances being neutral or reliable).4

[32]               It is not a case where Mr Tuhakaraina and Mr Tawa’s evidence should be rejected entirely and put to one side. The Court must consider all of the evidence. In this case the significant point was the prior knowledge of Mr and Mrs Tuari-Hape, (particularly Mrs Tuari-Hape) of Mr Heke. The identification of the attacker as wearing a Black Power patch was only part of the identification. But it is relevant that a Black Power patch was subsequently found at Mr Heke’s home and was admitted to be his.

[33]               Mrs Tuari-Hape’s identification evidence in particular was clear and remained consistent. While the observation on the night was for a limited time she was familiar with Mr Heke’s appearance and had very recently dealt with him in the context of her work.

[34]               Taken as a whole, while there were inconsistencies in the details of the identification evidence, it was for the fact finder to determine, having regard to all of the evidence, whether the evidence was sufficient to identify the offender beyond reasonable doubt.

[35]               There was also the results of the search. In addition to the gang patch the Police found a knife consistent with the description given by Mr Tawa and a cap and a black and white bandana, again consistent with the description by Mr Tuhakaraina and Mr Tawa of items associated with their attackers.

[36]               Finally, and although not relied on by Mr Lillico, there was the description of Mr Heke as the shortest of the three attackers.

4      Lanivia v R, above n 3, at [23].

Result

[37]               Having reviewed the evidence in this case the Court is satisfied that there was ample evidence to support the Judge’s conclusion that the identification of Mr Heke was proved beyond reasonable doubt.

[38]The appeal against conviction is dismissed.

Venning J