Pomale v The the Queen
[2022] NZHC 740
•11 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-397
[2022] NZHC 740
BETWEEN SALESIO POMALE
Appellant
AND
THE QUEEN
Respondent
Hearing: 21 March 2022 Counsel:
M J Taylor-Cyphers for Appellant S J Becroft for Respondent
Judgment:
11 April 2022
JUDGMENT OF BREWER J
This judgment was delivered by me on 11 April 2022 at 4 pm
Registrar/Deputy Registrar
Solicitors/Counsel:
M J Taylor-Cyphers (Auckland) for Appellant Kayes Fletcher Walker (Manukau) for Respondent
POMALE v R [2022] NZHC 740 [11 April 2022]
Introduction
[1] Mr Pomale was found guilty by Judge DJ McNaughton on one charge of aggravated robbery.1 On 7 May 2021 he was sentenced to four years’ imprisonment.2 Mr Pomale now seeks to appeal his conviction. His case is that the Judge did not assess the evidence properly.
[2] Mr Pomale’s notice of appeal was not filed within 20 working days after the date of his sentence. He seeks an extension of time to file his notice. The Crown does not oppose. The delay was not lengthy. I grant the extension of time to the date on which the notice of appeal was received by the registry.
[3] I must allow Mr Pomale’s appeal if I am satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.
Background
[4] The aggravated robbery was a home invasion carried out by four or five male Polynesians. The occupants of the house were a Vietnamese couple, their young child, and a boarder named Du Ly.
[5] The robbers demanded money and drugs. They took an iPhone X belonging to Mr Ly, an Apple iPhone 6 belong to Mr Toi Pham, $1,500 in coins belonging to Mr Ly, and three bottles of alcohol which were stored in a wardrobe in Mr Ly’s room.
[6] None of the robbers was identified directly. However, one of the bottles of alcohol stolen was Remy Martin VSOP champagne cognac which was inside a presentation box. The invaders discarded the box in Mr Ly’s room. It was later examined for fingerprints. Mr Pomale’s fingerprints were found.
[7] The issue at Mr Pomale’s trial was whether his fingerprints on the box proved that Mr Pomale was one of the robbers.
1 R v Pomale [2020] NZDC 23754.
2 R v Pomale [2021] NZDC 8775.
Judge McNaughton’s decision
[8] The Judge summarised the evidence he heard at the trial. He started with the defence case because Mr Pomale gave evidence.
[9] Mr Pomale said he had met Mr Ly in October 2017 at a friend’s place in Otahuhu. He knew the friend as “Charlie” and said his address was a known drug house:
[6] The defendant said he began selling methamphetamine to Mr Ly. He would arrange to meet Mr Ly at Penion Drive, which was just around the corner from the scene of the aggravated robbery at 200 Te Irirangi Drive. He said he would message Mr Ly and then drive to Penion Drive, where Mr Ly would meet him having walked around the comer and the deal would be done in the defendant's motor vehicle, a black BMW. He said Mr Ly would give him cash in a red and yellow courier bag.
[7]The defendant said typically these deals were “two tonne” meaning
$2000 and over the course of three or four transactions, the defendant supplied “a few ounces” of methamphetamine. He said on occasion he gave Mr Ly methamphetamine “on tick”, on the basis that it would be paid for later.
[8] He said the last time he saw Mr Ly was in December at the beginning of that month. He met with Mr Ly who gave him $2000. At that stage Mr Ly owed $4000 and he offered the defendant the Remy Martin VSOP cognac in lieu of the balance. The defendant said he grabbed the box and looked at it. He declined the offer because he did not drink wine in any event. He gave the box back and said he just wanted the money.
[10] The Judge went on to define the central issue in the trial. He recognised that Mr Pomale’s evidence, if it was not disproved by the Crown beyond reasonable doubt, is a complete answer to the prosecution case:
[10] The issue on the defendant’s trial is identity. On the face of it, in the absence of any alternative explanation, the presence of the defendant’s fingerprint on a presentation box containing a bottle of alcohol stolen in the course of the robbery, and handled in the course of the robbery by removal from the wardrobe onto the bed and then extraction of the bottle, would support to an inference that it was the defendant who handled the box and removed the bottle and therefore, he was one of the offenders involved.
[11] The defendant’s account, if accepted, is a complete answer to the prosecution case. There is no onus on the defendant to prove his innocence, it is for the Crown to disprove his explanation beyond a reasonable doubt.
[11] The Judge next turned to Mr Ly’s evidence. Mr Ly did not accept the account given by Mr Pomale. There was an inconsistency in his evidence about how he
obtained the Remy Martin cognac. He gave evidence that it had been given to him by a friend, Mr Nguyen. Mr Nguyen gave a statement in which he said he bought the cognac as a gift when returning from an overseas trip. Mr Nguyen said he did not know Mr Pomale.
[12] The inconsistency is that Mr Ly had previously told the police he had bought the cognac for $200 in 2016 from Mr Nguyen. In cross-examination he said the bottle given to him by Mr Nguyen was another bottle altogether which was kept in a large carton. He said he did not tell the police about the second bottle because everything was very stressful. Mr Ly denied changing his evidence to accord with what Mr Nguyen said in his statement.
[13] Mr Ly was cross-examined about $9,950 in $50 notes which was found by the police in a pillowcase located in a bedroom at the house which was occupied by a second boarder, Mr Hung. Mr Ly said he had lent the money to Mr Hung to assist him to get a visa. He explained that he got the cash from selling a motor vehicle for
$12,000. He said a friend had helped him to sell the car and he did not know who had bought it. His evidence was that the car was a 2004 Honda Accord sport version. It was put to him that such a vehicle’s market value was $6,000 to $8,000. He rejected that proposition.
[14]The Judge then turned to the cross-examination of Mr Pomale:
[20] In relation to the methamphetamine dealing, the defendant said he did not specify the amount of methamphetamine to be sold or the amount to be paid in his initial communication with Mr Ly. In response to a request for methamphetamine he would confirm that he had the drugs in his possession and then arrange a meeting, and it would be at the meeting that the amount and the price would be settled. He said the majority of these meetings took place in Penion Drive, although a few deals were done at Charlie’s address in Otahuhu. He said when he met Mr Ly he would tell him the amount and Mr Ly would then come back with the money. He said the maximum amount Mr Ly spent on drugs was $20,000.
[21] In relation to the debt for $2000, the defendant said Mr Ly was offering the bottle telling him it was expensive. He said he was curious to see what was inside the box when he was holding it.
[22] Asked about the composition of the cash paid to him in these drug deals, the defendant said it was paid in a mixture of notes; $50, $20 and $100 notes. He said it was sometimes all in one note. He suggested that Mr Ly’s
possession of $9950 all in $50 notes was equally consistent with money for drug dealing as from the sale of a motor vehicle.
[23] In re-examination, Ms Pecotic asked the defendant to confirm his extensive tattoos on the back of both hands, on his forearms, on his lower legs, around his neck and on his scalp. He said the majority of the tattoos were done in 2016 and 2017.
[15]Judge McNaughton rejected Mr Pomale’s evidence:
[28] In the end I do not find the defendant’s evidence credible. To my mind it is entirely implausible that Mr Ly would offer a cognac bottle valued at $200 in satisfaction of a drug debt of $2000. If the defendant had no intention of accepting the bottle in satisfaction of the debt and did not drink that type of alcohol, it is difficult to see why he would want to inspect the box. There was nothing in the data extracted from the defendant’s phone linking him to Mr Ly or any of the other occupants of the address, but it is clear that the defendant was not using that particular phone after September 2017, and in evidence he said he had three or four different phones, so the absence of text evidence is really a neutral factor in assessing the credibility of the competing narratives.
[29] As to the defendant’s description of dealing drugs to Mr Ly, it seems to me a very odd way of doing business to indicate possession of a quantity of drugs and then drive to a rendezvous point and only at that stage disclose the quantity in possession, and the amount required to buy it. If the purpose of going to Penion Drive was to transact business quickly, quietly and out of sight, it seems to me an entirely unnecessary risk to meet and then wait for Mr Ly to go back to his house and get the cash. The defendant’s explanation about seeing cash at these meetings in a courier bag also did not strike me as plausible but rather a clumsy attempt to establish a connection with Ly in the knowledge that the cash in the pillowcase was in a large courier pack envelope.
[16]On the other hand, the Judge found Mr Ly to be a credible witness:
[30] I found Mr Ly to be a credible witness. He was plain and direct in his answers. He adamantly rejected the narrative put to him in cross-examination. I found him to be a plausible and convincing witness.
[31] The only independent evidence that Ms Pecotic was able to point to which might undermine his credibility was the quantity of cash, but keeping large amounts of cash at home rather than in a savings account, is not uncommon amongst the Asian particularly South Asian communities here in South Auckland. The singular denomination of the notes found tends to indicate withdrawal of those notes from a bank rather than cash handed over in a drug deal, where cash tends to be used notes of mixed denominations. There is no evidence that Mr Ly’s motor vehicle was worth substantially less than $10-12,000 and like the text data, I find the cash to be an essentially neutral factor when it comes to credibility assessment.
[17] The Judge concluded that Mr Pomale’s fingerprints on the cognac box had to be the result of his handling the box during the aggravated robbery. As a result, the Judge found the charge proved.
The appeal
[18] Ms Taylor-Cyphers for Mr Pomale submits the fingerprint evidence was insufficient to prove the charge:
(a)The fingerprints simply establish that Mr Pomale touched the box.
(b)The Judge was not entitled to reject Mr Pomale’s evidence. His credibility findings failed to account for the inconsistencies in Mr Ly’s evidence.
[19] Ms Taylor-Cyphers submits that the inconsistencies in Mr Ly’s evidence as to how he got the cognac should have lessened his credibility. The large sum of cash found at the house is consistent with Mr Pomale’s evidence that he was supplying significant quantities of methamphetamine to Mr Ly. Mr Ly was obviously aware that the presence of the cash could found a submission of drug-dealing because, before any such suggestion was made, he volunteered in cross-examination “that’s not meaning I go to see the people to buy drug with that money”.3
[20] Ms Taylor-Cyphers emphasised that there was no evidence to back up Mr Ly’s explanation that he sold a car. There was evidence that he had owned a car, but nothing about what happened to it.
[21] A further criticism of the Judge’s decision by Ms Taylor-Cyphers is that the Judge, in effect, reversed the evidential burden.
[22] Finally,4 it is submitted that the Judge took judicial notice of matters beyond the scope of judicial notice:
3 NoE p33, line 23-24.
4 There was the point that Mr Pomale had distinctive tattoos on his arms and this was not mentioned as an identifier of any of the robbers by the Crown’s witnesses. But clothing conceals tattoos. And witnesses in a stressful situation do not observe everything. There is nothing in the point.
55. Finally, the inferences the Judge drew outside of the evidence, in relation to why South East Asian people in South Auckland might not trust banks and instead carry cash, and, the approximate value of a 2004 accord (in contrast to the evidence adduced at trial by the defence), seems to lack evidential basis, further eroding the reasoning to find guilt.
Discussion
[23] First, the Judge did not reverse the onus of proof. I have quoted the Judge’s observations at [9]. The Judge began by identifying the issue and the explanation given by Mr Pomale. The Judge stated that unless the prosecution disproved the explanation beyond reasonable doubt then Mr Pomale must be acquitted. He specifically said there was no onus on Mr Pomale.
[24] Second, if Mr Pomale’s evidence is put to one side, his fingerprints on the presentation box were sufficient to identify him as one of the robbers. It is correct that fingerprints are not inherently dateable. It is also correct that a smear through one of the fingerprints could mean that the box was handled by someone after Mr Pomale handled it. But neither of those factors matters. On the Crown’s evidence, there could be no innocent explanation for Mr Pomale handling the box.
[25] So, the case came down to the Judge’s assessment of Mr Pomale’s credibility and Mr Ly’s credibility. The Judge’s focus was on the evidence of both men.
[26] The crucial point is whether, on the evidence, the Judge should have found there was a reasonable possibility that Mr Ly knew Mr Pomale, had bought drugs from him and owed him money. The Judge gave his reasons for finding against Mr Pomale on credibility and finding in favour of Mr Ly on credibility.
[27] I have formed my own view of the evidence. I agree with the Judge’s analysis which I quote at [15]. In particular, Mr Pomale’s evidence as to how he sold drugs to Mr Ly is simply not credible. I also note that Mr Pomale described the courier bag in which Mr Ly supposedly kept his cash as being red and yellow. The courier bag in which the cash was found at the house was white.
[28] I do not see the criticisms of Mr Ly’s evidence as going significantly to his credibility.
[29] It is beyond doubt that bottles of alcohol were taken from Mr Ly’s wardrobe. Being imprecise as to how he acquired those bottles does not go to the credibility of Mr Ly’s denials that he knew Mr Pomale and bought significant quantities of methamphetamine from him.
[30] As to the cash: the police knew to look in the third bedroom because Mr Ly told the police the cash was there (the robbers demanded cash). It was a voluntary disclosure inconsistent with the money being the proceeds of drugs sales. The fact that it was in a single denomination ($50 notes) is consistent with a bank withdrawal and inconsistent with it being sales proceeds.
[31] There was no evidence that could otherwise corroborate Mr Pomale’s account that Mr Ly was in business as a methamphetamine dealer.
[32] I accept that Judge McNaughton drew too deeply on his years of experience as a Judge in observing that it is not uncommon for large amounts of cash to be kept at home by “particularly South Asian communities here in South Auckland”. But I see no risk of a miscarriage of justice arising from that. It is not suggested, for example, that the Judge was wrong. In any event, the point was not central to the Judge’s evaluation.
[33] Finally, I have borne in mind the advantages the Judge had as trial Judge in assessing the evidence. As the Supreme Court said in Sena v Police:5
[38] … Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”. There are two main, overlapping, reasons for this.
[39] The first is that a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to
5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.
[40] The second consideration, in effect the other side of the coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
[34] In my view, the Judge was entitled to find Mr Pomale’s evidence implausible and to prefer Mr Ly’s evidence. I do not see any error going to miscarriage of justice.
Decision
[35]The appeal is dismissed.
Brewer J
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