Pomare v The Queen

[2018] NZHC 996

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000004

[2018] NZHC 996

BETWEEN

SAMUEL LEE WAYNE POMARE

Appellant

AND

THE QUEEN

Respondent

Hearing:	27 March 2018
Appearances:	LJR Wilkins for the Appellant M Cooke for the Respondent
Judgment:	9 May 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 9 May 2018 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Louis JR Wilkins, Barrister, Hamilton Crown Law, Wellington

POMARE v R [2018] NZHC 996 [9 May 2018]

Introduction

[1]                   Following a Judge-alone trial on 31 July and 1 August 2017, Judge RLB Spear issued a reserved decision on 9 August 2017 in which he found Samuel Lee Wayne Pomare guilty of seven charges of burglary and not guilty of two charges of burglary. He later sentenced Mr Pomare to six years imprisonment.

[2]                   Mr Pomare had been tried with a co-offender, Phillip Henry Edwards, who was found guilty of five charges of burglary and not guilty of four charges of burglary.

[3]                   Mr Pomare now appeals against conviction on four of the seven charges of which he was found guilty. He does not appeal against the remaining three charges. In particular, Mr Pomare says that the evidence adduced in respect of Charges 3, 4, 5 and 6 did not reach the required standard of proof beyond reasonable doubt.

Factual background

[4]                   Between 9 January 2016 and 3 May 2016, several small convenience stores in Hamilton, Morrinsville and South Auckland were burgled. There were a number of similarities between the burglaries:

(a)They all occurred at night.

(b)Entry was generally effected through a back door using tools such as bolt cutters to cut or break padlocks and a jemmy to force open the door.

(c)Where there was CCTV, it showed with one exception (Charge 9) two offenders wearing hooded sweatshirts or similar clothing covering their faces.

(d)Tobacco products and cash were targeted.

[5]                   During the four month period over which the burglaries occurred, Mr Pomare and Mr Edwards were found in possession of clothes which could have been worn and tools which could have been used in burglaries. On 19 February 2016 at approximately 1.30 am, a white Honda Accord was stopped by the Police in West

Auckland. The driver was Mr Edwards and the passenger was Mr Pomare. The following items were located in the motor vehicle:

(a)A blue backpack containing dark clothing.

(b)A large pair of bolt cutters.

(c)A grey and black duffel bag containing crowbars and dark clothing.

(d)A black bandana.

(e)A blue hoodie and scarf.

(f)Large plastic bags of red, blue and white colour.

[6]                   Text messages later obtained by the Police also clearly showed that Mr Pomare was a dealer in stolen tobacco products throughout this period. This was conceded by his counsel at trial. On 12 January 2016, Mr Pomare banked $8,000 in cash, notwithstanding he was unemployed and had no other visible means of support.

[7]                   Just after the last burglary of the Morrinsville Mini Mart on 3 May 2016,    Mr Pomare was stopped by the Police in Hamilton at 2.17 pm on 5 May 2016 driving a BMW. In his possession was a black Nike bag which contained $413 in cash, a coin bag containing $50 in $5 notes, an ANZ change order booklet with the customer name

– Morrinsville Mini Mart – written on it and a substantial quantity of cigarettes. CCTV footage of the burglary of the Morrinsville Mini Mart showed one burglar, so only Mr Pomare was charged with and convicted of this burglary (Charge 9).

[8]                   Subsequent Police investigations further linked Mr Pomare and Mr Edwards to the earlier burglaries.

[9]                   As to the burglary of the Killarney Superette in Hamilton at 5.00 am on        9 January 2016  (Charge  3),  mobile  phone  data  showed  that  Mr  Pomare  and  Mr Edwards were in phone contact with each other on a number of occasions between

11.00 am on 8 January 2016 and 3.00 am on 9 January 2016. There is no record of what was said between them, however.  Later that morning, at  around mid-day on   9 January 2016, the Police stopped a BMW in Hamilton.   It was being driven by   Mr Pomare. Mr Edwards was a passenger.

[10]               As to the burglary of the Jalaram Foodmarket in Hamilton at 12.30 am on   23 January 2016 (Charge 4), mobile phone data showed that, again, Mr Pomare and Mr Edwards were in phone contact with each other during the early part of the evening in question.

[11]               Text messages between Mr Edwards and a third party on the previous afternoon of 22 January 2016 referred to the “blue market” (market for stolen cigarettes) and “doing mahi 3night” (interpreted as doing work that night). Mr Edwards said he was doing his mahi with “Rich Hustle”, a name used by Mr Pomare in Facebook images and clothing. Mr Edwards also sent a text on 23 January 2016 to another third party saying he was in “H town”, which is accepted was a reference to Hamilton.

[12]               Charges 5 and 6 related to the burglary of adjacent stores – PK Fruit and Vege and Papatoetoe Wholesale Meats – on the night of 30-31 January 2016. The alarm company advised that the PK Fruit and Vege alarm had been activated at approximately 1.09 am, but the alarm may have been activated earlier. At 10.40 pm that evening, Mr Pomare had texted Mr Edwards:

Just gt bk.. Craked it cuz.. Just putting all dez smokes in da pin stripe bag.. Now.. Gt some cash..out da till 4 spot.. I mite gap it.. Unless u wana du one..

Mr Edwards replied:

Me on mi way bk nw mi bro…

At 11.29 pm, Mr Edwards texted Mr Pomare:

Me out side mi m8t…

To which Mr Pomare replied:

Park next to myne..

[13]               At the time that Mr Pomare advised Mr Edwards that he had “craked it” and was putting all the smokes in the pinstripe bag, Mr Pomare’s mobile phone was polling in the area of Allenby Park, which is within one kilometre of the two shops which were burgled that evening. A white or silver Nissan Primera was seen leaving the scene of the burglaries.

[14]               As to the burglary of the Matangi Four Square, just out of Hamilton at 1.13 am on 2 February 2016 (Charge 7), CCTV footage showed two men entering the store wearing hooded sweatshirts with one carrying a crowbar. There was clear image of a bag, similar to the one found in the car  which was later stopped by the Police on    19 February 2016. Text messages and  polling data  placed both  Mr  Pomare  and  Mr Edwards in Hamilton. The essential tone of the messages was to arrange a rendezvous.

[15]               Text messages sent by Mr Edwards around 3.00 am referred to having obtained cash, but “no you know what” (interpreted as meaning no cigarettes). Mr Edwards also texted an unknown person approximately six minutes later, confirming he had only obtained cash. $630 cash and a large number of cigars but no cigarettes or other tobacco products had been taken in the burglary.

[16]As to the burglary of the Braid Road Dairy in Hamilton at approximately

2.45 am on 5 February 2016 (Charge 8), the owner drove to the store when the alarm was activated. He observed a white or silver vehicle when he arrived and watched it drive off. The number plate was BED195, which was a silver Nissan Primera registered to Mr Edwards. Again, CCTV footage showed two men; one of them used two crowbars to gain access to the shop. Both were disguised with hoodies. Again, there was a clear image of the bag later found in the car occupied by Mr Edwards and Mr Pomare on 19 February 2016. Mobile phone data and hotel records place both  Mr Pomare and Mr Edwards in Hamilton that evening. Mr Pomare was also a passenger in a car stopped in Hamilton on 5 February 2016 at 11.14 pm.

[17]               Mr Edwards reported his car stolen later that same day. The Crown said that he did that because he was aware that he had been followed driving away from the Braid Road Dairy. At 12.39 pm on 5 February 2016, Mr Edwards had texted Mr Pomare “Mi bro. Da car stolen report is done.” The car was found on 7 February abandoned on or near Taupiri Mountain, and destroyed by fire.

[18]               As noted earlier, Mr Pomare does not appeal against his convictions on Charges 7, 8 and 9. His counsel concedes that there was sufficient evidence for Judge Spear to find these charges proven beyond reasonable doubt.

Approach on appeal

[19]               Section 232(2)(b) of the Criminal Procedure Act 2011 requires this Court to dismiss an appeal unless the trial Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice is defined as meaning any error, irregularity or occurrence in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial. Section 232 makes it clear that not every error or irregularity causes a miscarriage of justice. Instead, there must be a real risk that the outcome was affected.

[20]In R v Owen the Supreme Court endorsed the following principles:1

(a)The appellate court is performing a review function, not substituting its own view of the evidence.

(b)Appellate review of the evidence must give appropriate weight to such advantages as the jury [or judge] may have had over the appellate court. Assessment of the honesty and reliability of witnesses is a classic example.

(c)The weight to be given to individual pieces of evidence is essentially a jury [or trial judge] function.

(d)Reasonable minds may disagree on matters of fact.

(e)Under our judicial system the body charged with finding the facts is the jury [or judge]. Appellate courts should not lightly interfere in this area.

[21]               Although the Supreme Court referred to the jury, the Court of Appeal observed in Roest v R that the verdict of a judge sitting alone in a criminal trial is to be treated as the equivalent of a jury verdict for appeal purposes.2

1      R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].

2      Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [55]–[56].

Discussion

[22]               Mr Pomare appeals on the broad ground that the evidence adduced in respect of Charges 3, 4, 5 and 6 was insufficient to prove those charges against him beyond reasonable doubt. Counsel for Mr Pomare submits that the use of impermissible propensity reasoning on the part of the Judge led to a miscarriage of justice in respect of those charges.

[23]               Counsel accepts that the Judge was entitled to use propensity reasoning in the form of proven facts in one burglary in determining whether the Police had proven beyond reasonable doubt that Mr Pomare was one of the offenders in another burglary. Counsel submits, however, that the use of such evidence cannot be unrestricted and says that a court is not able to make a determination of guilt based solely on the fact that the general mode of entry was the same and that CCTV footage showed two offenders where, in one case, the offenders were identified and in the other, they were not.

[24]               The Judge clearly engaged in a form of propensity reasoning because in reviewing the facts of Charges 3 and 4, he specifically stated that this evidence by itself was not sufficient to prove beyond reasonable doubt that Mr Pomare committed these burglaries. However, after reviewing the facts of the other charges, the Judge stated that he was sure that Mr Pomare had carried out the burglaries in Charges 3 and 4 (as well as Charges 5, 6, 7, 8 and 9).

[25]               This can be contrasted with the Judge’s review of the facts of Charges 5 and 6, when he did not comment that the evidence by itself was not sufficient to prove beyond reasonable doubt that Mr Pomare committed these burglaries, although the Judge referred to the other charges when he stated:

[48] The remaining charges simply strengthen the Crown case that the coincidence of time and place in respect of either defendant and these burglaries appropriately leaves the Court sure that they were the burglars.

[26]               The Judge pointed to the following factors as being of particular significance for the findings of guilt:

[79]      The factors of particular significance for this finding are variously that: the defendants used the same method for entering these buildings; the buildings are of a similar nature being shop premises that could be expected to store cigarettes and without annexed accommodation; the defendants were in the area at the time of the burglaries; they were in close text or phone contact; they resided in Auckland (Mr Edwards) and Whangarei (Mr Pomare) yet on the specified occasions were found together in vehicles in Hamilton and Auckland and by connection through Mr Edwards’ cellphone, also in Papatoetoe at the time of the burglaries of the PK Fruit and Vege and Papatoetoe Wholesale Meats premises. There is the connection involving the silver Nissan Primera motor vehicle seen at the PK Fruit and Vege burglary and subsequently a similar vehicle seen at the Braid Road Superette bearing the registration plate BED195 registered to Mr Edwards. As mentioned, immediately after the Braid Road Dairy burglary when the car was followed by the store owner, it was reported stolen by Mr Edwards and on 7 February 2016 it was found completely destroyed and abandoned.

[80]      The two defendants were also found in a motor vehicle on 19 February 2016 with effectively the tools of their trade.

[81]      Perhaps the most telling piece of evidence that connects the defendants to these burglaries is the text messaging. It demonstrates not only the connection between the two defendants, their involvement with each other during the time of the burglaries but also that they both [were] actively involved in the illegal trade of stolen cigarettes, the blue market, over the relevant periods.

[27]               In the above passage, the Judge refers to eight or nine different factors, many of which relate to similarities between the burglaries. However, he also refers to other circumstantial factors which do not necessarily relate to the individual burglaries. For example, it was conceded at trial that Mr Pomare was actively involved in the illegal trade of stolen cigarettes during the period.

[28]               It is evident from the text messages produced at trial that various third parties were requesting cigarettes from Mr Pomare. The following are examples:

07/01/2016	Hi mas I b needing sumor plz.I onli got hepza mentals [menthols] left.thyl tak abit longa
07/01/2016	Pleez….oh and lots a big ordas for rolz [loose tobacco] if pos.thy always selout first bfo da tayles [tailored cigarettes]
14/01/2016	How mutch a carten cuz ?
26/01/2016	Wondering if I can have somr cigiz carten and il pay you bk

[29]               There are also  a  number  of  text  messages  about  payments  made  into  Mr Pomare’s bank account, such as:

10/01/2016	Mrn mas …am defnatly n need of sumor of both plz.sud hav de last Ov ur dolas [last of your dollars] by tmrw or Tuesday latezt
11/01/2016	Mr girls NDA Bnk dpositn 1100 now
15/01/2016	…I jus bnkd 2300
25/01/2016 (from Mr Pomare)	My Kiwibank account details ….S L POMARE 38- 9016-XXXXX XX-XX
25/01/2016	Sud b 2g [$2000] n thea
03/02/2016	Hi Mas I’ll put n 1100 n account sn as I go Bnk. …

[30]               There are, however, no messages from Mr Pomare to third parties requesting cigarettes or evidencing payments made to third parties. Mr Pomare must have sourced the cigarettes from somewhere. Either he stole them himself or he received them from someone else. There is, however, no evidence of anyone else, except his co-offender Mr Edwards. It is therefore a reasonable inference to be drawn from the text messages and all the other evidence that Mr Pomare was a burglar and not a receiver of stolen cigarettes. The above text messages all occur over the same three to four week period as the burglaries charged (Charges 3, 4, 5 and 6 (9 January 2016

– 31 January 2016)).

[31]               There is, however, more specific evidence, which is not referred to by the Judge in his analysis above, from a text message from Mr Pomare to Mr Edwards on the night of the burglaries of adjacent premises, PK Fruit and Vege and Papatoetoe Wholesale Meats, in which he states:

Craked it cuz… Just putting all dez smokes in da pin stripe bag…

At the time he sent the text, Mr Pomare’s mobile phone was polling in the vicinity of Allenby Park, which is within one kilometre of the two shops.

[32]               This is very strong circumstantial evidence that Mr Pomare was the burglar and not the receiver of the cigarettes stolen that night. Yet counsel for Mr Pomare

submits that there was insufficient evidence for the Judge to convict Mr Pomare of Charges 5 and 6, which alleged that he burgled PK Fruit and Vege and Papatoetoe Wholesale Meats that night with the object of stealing cigarettes.

[33]               In my view, the crucial issue is not, however, whether Mr Pomare had a propensity to commit burglaries, but whether the circumstantial evidence linking him to the burglaries, when viewed as a whole, pointed to his participation in and guilt of each offence. This could be characterised as a type of propensity evidence.

[34]               Of the four convictions challenged on appeal, Charge 3 has perhaps the least amount of circumstantial or propensity evidence pointing to Mr Pomare’s participation in and guilt of the offence. There was no CCTV footage in respect of this burglary. It is, therefore, instructive to analyse just what evidence was available for the Judge in order to reach his finding of guilt. Upon analysis there were six categories of either circumstantial or propensity evidence. These were:

(a)Connection in time – the burglary occurred on 9 January 2016, within a month of the burglaries specified in Charges 7 and 8. (There is no appeal against conviction on Charges 7 and 8 (and 9) as it is accepted there was sufficient evidence for conviction).

(b)Connection in place and targeted premises – a convenience store in Hamilton without annexed accommodation. (Same as Charges 7 and 8).

(c)Method of entry – a padlock cut or broken on the back door and wooden door jemmied open with crowbar. (Same as Charges 7, 8 and 9).

(d)Cigarettes targeted – Mr Pomare was involved in the illegal trade of cigarettes over the same period as a burglar, rather than receiver of stolen cigarettes. (Cigarettes also targeted in Charges 7, 8 and 9).

(e)Presence in area/acting in concert – Mr Pomare and Mr Edwards were in contact on a number of occasions between 18 and two hours prior to

burglary. Mr Pomare and Mr Edwards were in a car stopped by Police in Hamilton approximately seven hours after the burglary. (Mr Pomare and Mr Edwards acted in concert in Charges 7 and 8).

(f)Possession of tools of trade – just over a month later, on 19 February 2016, Police stopped Mr Pomare and Mr Edwards in a car in which there was a pair of bolt cutters, crowbars and dark clothing, among other items.

[35]               The difficulty for the appellant is that an appellate court performs a review function. It does not substitute its own view of the evidence for that of the decision maker. In the present case, the Judge came to the view that there was sufficient circumstantial or propensity evidence to prove Charges 3, 4, 5 and 6 to a standard of proof beyond reasonable doubt. He did not find sufficient proof in respect  of Charges 1 and 2, which charged Mr Pomare with burglaries of two convenience stores in Christchurch, notwithstanding that Mr Pomare and Mr Edwards both travelled to Christchurch together at the relevant time.

[36]               The weight to be given to individual pieces of evidence is essentially a function of the decision maker.

[37]               I am of the view that the propensity reasoning undertaken by the Judge was entirely orthodox. The Court of Appeal approved this approach in relation to multiple burglaries in Gorgus v R3 and, similarly had no difficulty in Adams v R4 with the agreed position that the Crown was entitled to rely on evidence on the other charges as cross-propensity evidence.

[38]               The fact that there was very strong evidence against Mr Pomare on Charges 7 to 9 in respect of which there is no appeal against conviction and significant similarities between the offending on all charges, supports the Crown’s allegation that he was also responsible for the burglaries in Charges 3 to 6.

3      Gorgus v R [2012] NZCA 415 at [24].

4      Adams v R [2016] NZCA 570 at [4] and [22]–[23].

[39]               The Judge had the benefit of hearing the evidence and learning how all the individual pieces of evidence fitted together. I am of the view that the Judge has not erred in his approach to the facts to such an extent that a miscarriage of justice has occurred.

[40]The appeal is dismissed.

Woolford J