Matara v The Queen
[2015] NZCA 261
•18 June 2014 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA81/2014 [2015] NZCA 261 |
| BETWEEN | BILLY MARK MATARA |
| AND | THE QUEEN |
| Hearing: | 11 June 2015 |
Court: | Winkelmann, Andrews and Gilbert JJ |
Counsel: | W C Pyke for Appellant |
Judgment: | 18 June 2014 at 4 pm |
JUDGMENT OF THE COURT
ATime is extended for Mr Matara’s appeal to be brought.
BThe appeals against conviction are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Andrews J)
On 21 March 2012, after a trial in the Auckland District Court before Judge C J Field and a jury, Mr Billy Matara was convicted on one charge of converting a motor vehicle and one charge of aggravated robbery. On 21 February 2014, Mr Matara filed a notice of appeal against conviction. At the time, he was not legally represented.
The notice of appeal was filed approximately 21 months out of time, and Mr Matara seeks an extension of time to appeal. He explained the reasons for the delay in an affidavit affirmed on 10 February 2015. The Crown did not oppose an extension of time being given, other than on the merits of the appeal.
Background
On 21 November 2010, a Mazda car was stolen from a carpark at Auckland Hospital. The following day, the stolen car was used at around 10:15 am in the aggravated robbery of an antique shop on Dominion Road, Auckland. CCTV footage from the shop shows the car stopping outside the shop. Two men got out and went into the shop, while a third man remained in the car. One of the men who went into the shop had a stocky build, and had a balaclava covering his head. The other man had a thinner build and was wearing a hooded sweatshirt which partially covered his face. Both men were armed with knives. They robbed the shop assistant of jewellery valued at around $100,000. The three offenders left in the stolen car, which was abandoned in a nearby carpark.
Shamus Tamala pleaded guilty to charges of conversion and aggravated robbery. He was the thinner of the two men who entered the shop. Skip Eruera pleaded guilty to a charge of aggravated robbery. He drove the stolen car. The police alleged that Mr Matara was the third offender. He denied any involvement, and the principal issue at trial was whether the Crown could prove the identity of the third offender as being Mr Matara, beyond reasonable doubt.
The case against Mr Matara
The Crown case against Mr Matara was circumstantial. It comprised evidence of text messages, cellphone tower data tracking the location of cellphones at particular times, the CCTV footage from the antique shop, the evidence of a witness (Mr Gul) as to seeing the offenders leave the shop, CCTV footage from Auckland Hospital shortly after the robbery, the fact that Mr Matara did not appear for a scheduled appearance at the North Shore District Court at 10:00 am on the day of the robbery but did appear shortly before the lunch adjournment, and CCTV from an Auckland hotel later in the day of the robbery, in which Mr Matara is shown carrying a bag similar in appearance to that described by the witness referred to earlier.
The Crown case was that Mr Matara was involved with Mr Tamala in stealing the car, and later drove with Mr Tamala past the antique shop on a reconnaissance exercise. The Crown alleged that on the day of the robbery, Mr Tamala travelled to the North Shore and picked up Mr Matara and that, together with Mr Eruera, they were outside the antique shop at around 10:13 am. The Crown alleged that Mr Matara was the stocky man wearing a balaclava. As the offenders were leaving the shop Mr Tamala accidentally stabbed himself with the knife he was carrying. Mr Eruera, Mr Tamala, and Mr Matara were then shown on CCTV footage at Auckland Hospital. Mr Eruera was pushing Mr Tamala in a wheelchair, and Mr Matara was with them.
Mr Matara accepted that a cellphone attributed to him was his, and that he was using it on the day of the robbery. He also conceded that he was shown in the CCTV footage at Auckland Hospital, and at the hotel later in the day, and that he was with Mr Tamala when the car was stolen. He further conceded that he received and sold stolen jewellery. However, he denied involvement in stealing the car and in the robbery.
Appeal issues
At the appeal hearing, Mr Pyke argued that:
(a)the Judge had failed to give adequate directions to the jury about its use of the CCTV footage from the antique shop, and in particular failed to caution them of the dangers of making their own identification based on resemblance to Mr Matara, from comparing the poor quality CCTV footage of a man wearing a balaclava with photographs of Mr Matara, and his appearance in court;
(b)the Judge had failed to remind the jury, when directing the jury on circumstantial evidence, that they had to find all elements of each charge proved beyond reasonable doubt;
(c)in the alternative, there was a miscarriage of justice, as a result of the matters referred to at (a) and (b) above.
Mr Pyke did not pursue a ground of appeal noted in his memorandum of appeal grounds filed on 12 February 2015, that the verdicts were unreasonable. Further, while not conceding Mr Matara’s guilt on the charge of conversion, he offered no submissions on Mr Matara’s appeal against conviction on that charge. Mr Pyke accepted that no real argument could be made in support of that appeal.
The Judge’s summing-up
The Judge began his summing-up by referring to general matters, including giving a direction that the Crown was required to prove Mr Matara’s guilt beyond reasonable doubt; that is, they had to be sure that Mr Matara was guilty. He directed the jury as to circumstantial evidence as follows:[1]
[10] This case depends to a large extent on circumstantial evidence. Now there is no direct evidence here tending to prove that Mr Matara committed either of these crimes. There is no eye witness to say, “I saw him do [it]” in either case. So the Crown relies on what is called circumstantial evidence. Now there is nothing inherently second-rate or dubious about circumstantial evidence. It simply involves that process to which I have already referred that of drawing inferences from facts established in evidence.
[11] There is no need for the Crown to prove beyond reasonable doubt each circumstance on which it relies before a jury can take into account the evidence of that matter. What is required of you is a holistic assessment of the evidence as a whole because, of course, you will be considering all of the evidence, not just the call data, not just the phone calls. It involves a holistic approach, if I can use that word, to the evidence as a whole to determine whether or not the circumstantial evidence is sufficient here.
[12] Circumstantial evidence derives its force from the involvement of a number of factors which I have already talked about, that independently might point to the guilt of the accused and the analogy that is often drawn is one of a rope. Any one strand of a rope may not support a particular weight but the combined effect of a number of strands is often sufficient to do that. The logic that underpins a circumstantial case is that the accused is either guilty or is the victim of an implausible unlikely series of coincidences. So it might be helpful to hold in your mind that analogy, that comparison to a rope. Some strands may support more weight than others, one strand may be thicker or thinner, that is entirely a matter for you, but it is the cumulative effect, the overall effect which is important and it is important to take it all into account.
[13] And having said that when you consider a circumstantial case you must have regard to what might be called defence circumstances, circumstances that might favour the defence. I will give you examples of this over the course of my summary of the cases presented by both parties. I will not cover it all because it will take some time but just way of illustration perhaps from time to time I will touch upon that.
[1]R v Matara DC Auckland CRI-2011-004-2070, 21 March 2012 at [10]–[13].
Then in the course of summarising the Crown and defence cases, the Judge said:
(a)In relation to the Crown case:
[27] As to the robbery itself, it is the Crown’s case that the larger build of the two people, the second man holding the knife was Mr Matara described by Mr Gul in a way which does not accord with the evidence of the CCTV, perhaps just illustrative of the fact that identification evidence in cases like this is notoriously difficult, as counsel said, and perhaps that just points it out but it is the Crown case that Mr Matara was that second person.
(b)In relation to the defence case:
[36] For the defence Mr Mansfield says that this is not at all a straightforward case, that much of what the Crown had alleged in terms of cellphones and the like could be admitted and acknowledged without it implicating Mr Matara in any way in the robbery. What it boils down to, submits Mr Mansfield, is the identification such as it is that you may be able to make from the CCTV within the shop and that is no identification at all submits the defence. Is it reasonably possible that another individual other than Mr Matara was involved in the robbery, possibly Abe [alleged by the Crown to be Mr Eruera], possibly somebody else if Abe is a separate person?
…
[44] In terms of the description given it is an unreliable description by Mr Gul. The description of the second offender on the CCTV does not help you very much except in a very, very general way. Mr Matara acknowledges having some of the loot but there is a reason for that which has been explained. There was a reference to Mr Matara not knowing what they got in the robbery. …
[45] But in any event defence submits that Mr Matara is unlikely to be doing an aggravated robbery on his way to Court in the knowledge that if he was not there on time a warrant is likely to be issued for his arrest, unlikely to fit in a robbery on the way through. There is no forensic evidence, no fingerprints, no DNA, I will not make any further reference to that but that is clearly the case.
Conviction on the charge of aggravated robbery
Mr Matara’s appeal focused, in particular, on the CCTV footage from the antique shop. Mr Pyke submitted that the CCTV footage did not identify Mr Matara as one of the robbers. He submitted that it showed a stocky man whose head was completely covered with a balaclava, who could have been anyone in the community having a similar build. The CCTV footage could not therefore properly be used by the jury to satisfy itself that Mr Matara was the offender. Mr Pyke also referred to Mr Gul’s evidence and submitted that his description of the stocky offender did not match Mr Matara.
Mr Pyke submitted that in his closing address for the Crown, the prosecutor had invited the jury to compare the CCTV footage from the shop with the CCTV footage from the Auckland Hospital, and Mr Matara’s arrest photographs, in an attempt to link Mr Matara to the robbery. Mr Pyke argued that the prosecutor invited the jury to make their own identification of Mr Matara as the robber, based on resemblances from the CCTV footage, compared with photos of Mr Matara which were available to them. Further, although not articulated as such during the trial, the jurors could have observed Mr Matara in the dock.
In the circumstances that the CCTV footage from the shop was unclear, and Mr Gul’s identification evidence at odds with that footage, he submitted that the Judge should have directed the jury to be cautious about drawing any conclusions as to identification based on the CCTV footage. He submitted that the Judge should have directed the jury that they could make a mistaken identification, just as a witness could make mistakes when giving identification evidence.
Mr Pyke referred to this Court’s judgment in R v Turaki, and submitted that where “resemblance evidence” is given by a witness, the Judge may be required to direct the jury in similar terms to the warning relating to identification evidence, pursuant to s 126 of the Evidence Act 2006.[2] Mr Pyke submitted the principle applies where the jury was itself asked to undertake an exercise of considering the resemblance of an image to that of the defendant. Mr Pyke referred to the judgment of the Supreme Court of Canada in R v Nikolovski, as to the need to instruct a jury to exercise care before relying on evidence such as CCTV footage, and “to consider carefully whether the footage is of sufficient clarity and quality and shows the accused for sufficient time to enable them to conclude that identification has been proved beyond reasonable doubt”.[3]
[2]R v Turaki [2009] NZCA 310 at [94].
[3]R v Nikolovski [1996] 3 SCR 1197 at 1216.
He submitted that the Crown case would have been weaker without the CCTV footage from the shop, as had that footage not captured a robber in the shop who broadly resembled Mr Matara in build, then a verdict of not guilty was the only reasonable verdict. He submitted that the Crown had argued that the CCTV footage was proof of identification of Mr Matara as a robber.
Mr Pyke submitted that the cogency of the CCTV footage was undermined by Mr Gul’s evidence. So, the jury had to be cautious about drawing their own conclusions from it. Yet the Judge did not give the jury any direction to use caution in respect of the CCTV footage from the antique shop. Mr Pyke submitted that if the jury were at a point where the CCTV footage was pivotal to their verdict, they had no direction from the Judge as to how to use that evidence. The Judge should have reminded the jury that the footage was of a low quality, and did not show any person in particular. There was a risk that the jury gave too much weight to the CCTV footage which was, he submitted, in effect the only evidence of identification.
Mr Pyke further submitted that the Judge had erred in not reminding the jury, after he had given an otherwise orthodox direction on circumstantial evidence, that they had to be satisfied beyond reasonable doubt that the evidence proved identification.
Analysis
We are not persuaded that the Judge erred in not giving the jury a “resemblance evidence” warning. We do not consider that such a warning was required. First, this was not a case where a witness has given “resemblance evidence”, as was the case in Turaki.[4] Secondly, this was not a case where the CCTV evidence was the sole basis on which the jury could find that Mr Matara was the third robber, as was the case in Nikolovski.[5]
[4]R v Turaki, above n 2, at [58].
[5]R v Nikolovski, above n 3, at 1201. Note that while R v Nikolovski was an appeal against conviction in a Judge-alone trial, the Supreme Court’s decision applies generally to “triers of fact”: at 1201.
As was evident from the Crown’s opening and closing addresses, the Crown case did not turn on identifying Mr Matara from the CCTV from the antique shop. Rather, the Crown case was made up of a number of strands of circumstantial evidence and the CCTV coverage from the shop was but one piece in a jigsaw puzzle (as the prosecutor put it).
The Crown did not suggest that Mr Matara could be identified from the CCTV footage from the shop; the prosecutor said it was “not definitive proof of itself of who that third person was because, of course, the face is covered”. The prosecutor suggested to the jury that the CCTV evidence gave “clues” as to who the third offender was (in particular as to that offender’s build) which the jury might find “compelling”.
Had the CCTV coverage from the shop been the only identification evidence, then a cautionary direction may well have been required. However, it was not. There were many threads of circumstantial evidence from which the jury could reasonably conclude that Mr Matara was the third offender.
Nor are we persuaded that the Judge erred in not reminding the jury that they had to be satisfied that the threads of circumstantial evidence, taken together, established beyond reasonable doubt that Mr Matara was the third offender. The Judge had given a direction as to the Crown’s standard of proof earlier in his summing-up, which was not long, and it had also been stressed in the addresses of Crown and defence counsel. There is no risk that the jury was not aware of the standard of proof in this case.
Finally, for the reasons set out above, we are not persuaded that there has been a miscarriage of justice.
Conviction on the charge of conversion
As noted earlier, an appeal against Mr Matara’s conviction on the charge of conversion was included in his notice of appeal. However, Mr Pyke did not pursue this at the appeal hearing. We are satisfied that an appeal against that conviction could not succeed and we dismiss it.
Result
Time is extended for Mr Matara’s appeal to be brought, but Mr Matara’s appeals against conviction on the charges of conversion and aggravated robbery are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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