Luaufui v The Queen
[2011] NZCA 287
•22 June 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA456/2010 [2011] NZCA 287 |
| BETWEEN FETUAO LUAUFUI |
| AND THE QUEEN |
| Hearing: 15 June 2011 |
| Court: Wild, Keane and Miller JJ |
| Counsel: S Litt for Appellant |
| Judgment: 22 June 2011 at 11 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
Mr Luaufui appeals against his convictions for unlawful sexual connection and assault with intent to commit sexual violation. An appeal against the sentence of 26 months imprisonment has been abandoned.
The single issue on appeal is whether the identification evidence could reasonably have satisfied the jury that Mr Luaufui was the attacker.
The narrative
The incident occurred on Ferry Road, Christchurch, shortly before 5.45 am on 17 May 2009. The complainant was walking to a friend’s home after a night of socialising. She was sufficiently intoxicated to be weaving as she walked. At trial she rated her intoxication at 4 on a scale of 10. A man approached her and asked whether she would come home with him. She declined and tried to ignore him. He blocked her path, grabbed her, and attempted to kiss her. As she tried to move away he grabbed her from behind, pulled down her lower garments and digitally sexually violated her.
She broke free and took her phone from her pocket, saying that she was going to call the police. He responded by walking away. Her 111 call was received at 5.46 am, and the jury heard her description of the attacker as he left in the direction of Ferry Road without apparent haste. She described him as not Maori, maybe African or something, and having black curly hair. Mr Luaufui is Samoan with short dark curly hair. She said he was wearing a white T-shirt with some writing on it, but she did could not remember what the writing said. He was probably wearing jeans.
Constable Herewini was driving a patrol car nearby. She picked the complainant up at 5.49 am and suggested they look around to see if they could observe the man. They began to drive down Ferry Road in the direction that her assailant had gone. No one was about. At 5.50 am they passed a bus stop about 100 metres from the scene and observed two men seated there. One of them was Mr Luaufui.
The other man at the bus stop was a tourist, Mr Escriva. His evidence, which was read, was that he had stopped in the bus stop because it was cold. About three minutes before the police car arrived Mr Luaufui had approached from his right (the complainant’s direction) and joined him. Mr Luaufui had asked Mr Escriva why he was there, where he was going and whether he was gay.
On seeing the men the complainant immediately identified Mr Luaufui as her attacker. Constable Herewini stopped and spoke to him, instructing the complainant to remain in the car. The Constable observed that he was wearing an off-white
T-shirt with a logo on the front. It included the stylised letters H, O and T. He also wore distressed blue jeans and white shoes. When asked what had happened to the woman down Ferry Road, he pointed to number 565, stating that he lived there.An evidential video interview of the complainant was recorded at 9.30 am on 20 May 2009. In the interview she repeated that he was not a Maori guy or a white guy and she thought he might have been from Africa. He had “nappy hair”, by which she meant short, tight curls, and that is why she thought he was African. She had recently returned from eight years living in the United States of America. He was not little but he was not big either, a little bit taller than her. At stages of the narrative she stated that she was not looking at her attacker much, and that he was behind her so she couldn’t see anything. She recalled that the white T-shirt had the letters H, O and T written on it. She did not describe the ripped jeans or white shoes. She identified him at the bus stop from his face and the shirt. When asked how sure she was that the man at the bus stop was her attacker she responded that she “would’ve liked to have a good look at him to make, to make a hundred per cent positive but I’m, I’m fairly sure that that was him.”
The trial
At trial on 8 March 2010 the complainant’s evidential video was played. In oral evidence she insisted that she identified the correct man at the bus stop. She said that she wanted to get out of the car at the bus stop but the constable told her to stay in the car. When it was suggested that she wanted to get out so she could check her identification she initially said she was curious, then stated that she wanted to confront him.
Mr Luaufui did not give evidence. Judge Farish gave an orthodox identification direction, and there is no criticism of her summing up. There is no suggestion that a formal identification procedure ought to have been followed in the circumstances.
The appeal
On appeal Ms Litt, who was not trial counsel, argued that the identification is unsafe: the complainant herself had been unsure at the time of her interview; she did not get a good look at the offender; it was dark; she did not initially recall the logo on the T-shirt; her description of the offender in the 111 call did not match Mr Luaufui; she was intoxicated; and the evidence leaves only a very small window within which he could have committed the crime. He was at the bus stop about one minute after she was attacked. All of these points were made by counsel at trial.
Discussion
The verdict is unreasonable if the jury, acting reasonably and having regard to all the evidence, must have entertained a reasonable doubt as to his guilt. An appellate court must recognise the advantage that the jury had when assessing the witnesses, and it is for the jury to decide what weight to attach to individual pieces of evidence.[1]
[1]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37.
Ms Litt’s strongest point was the complainant’s statement in her video interview that she was only “fairly sure” the man at the bus stop was her attacker, coupled with the evidence that it was dark and she had said she was trying to ignore him. However, three points may be made about that.
First, the complainant was not unsure at trial. She also gave evidence that when attacked she had tried to ignore him, but when he blocked her path and tried to kiss her she got a “fairly decent look at him”. The jury were in a position to evaluate that evidence, and they could assess her intoxication by reference to the recording of the 111 call.
Second, other features of the evidence supported her identification. Although he is not African, the characteristics she described at the time had some similarities to Mr Luaufui’s appearance, as shown in photographs taken on his arrest. His height and build were also generally as described. Her description of the T-shirt in the 111 call and in the video interview matched the one that he wore.
Third, the circumstantial evidence supported the identification. Mr Luaufui was found a very short time after the incident, at a location consistent with the direction the complainant described her attacker taking as he walked off. There was enough time between the attack and him being found at the bus stop to allow him to walk between the two locations and exchange words with Mr Escriva.
For these reasons we are satisfied that the verdicts were reasonably available to the jury.
Decision
The appeal is dismissed.
Solicitors:
Crown Law, Wellington for Respondent
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