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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pomare v The Queen

Details

AGLC: Pomare v The Queen [2018] NZHC 996
Case: [2018] NZHC 996
Decision Date: 9 May 2018

CaseChat Overview and Summary

Samuel Lee Wayne Pomare appeals against his convictions on four of the seven charges of burglary for which he was found guilty. Pomare argues that the evidence did not reach the required standard of proof beyond reasonable doubt. The court must decide whether the trial judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. The court must give appropriate weight to the advantages the trial judge may have had over the appellate court, including the assessment of the honesty and reliability of witnesses. The court must also consider that reasonable minds may disagree on matters of fact, and that the body charged with finding the facts is the trial judge.

The court finds that the trial judge's use of propensity reasoning was entirely orthodox, and that there was sufficient circumstantial or propensity evidence to prove Pomare's guilt of the four charges. The court notes that there were similarities between the offending on all charges, and that there was strong evidence against Pomare on the other three charges for which there is no appeal against conviction. The court also notes that the weight to be given to individual pieces of evidence is essentially a function of the decision maker. The court is of the view that the trial judge has not erred in his approach to the facts to such an extent that a miscarriage of justice has occurred.

The appeal is dismissed.

Orders