R v Ielemia aka Sipa Ca405/01
[2002] NZCA 350
•14 March 2002
| PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985 | ||
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA405/01 | |
THE QUEEN
V
TULI IELEMIA (AKA) PIO SIPA
| Hearing: | 14 March 2002 |
| Coram: | Keith J Robertson J Gendall J |
| Appearances: | L P Iosefa and B N Ayrey for Appellant F Guy for Crown |
| Judgment: | 14 March 2002 |
| JUDGMENT OF THE COURT DELIVERED BY GENDALL J |
The appellant was found guilty by a jury in the District Court at Christchurch of the crimes of burglary, indecent assault of a woman over the age of 16 years and breaking out of a dwelling after having committed the crime of indecent assault in it. He was sentenced to a term of three years imprisonment. He appeals against his conviction and sentence.
The essential issue at trial was whether the Crown had proved that the identity of the offender was the appellant.
The Evidence
The Crown evidence was that at about 3.00am on the morning of 23 February 2001 a Samoan woman was asleep with her partner in their home in Hoon Hay, a suburb of Christchurch. She was awoken by something touching her calf muscle and saw a man in her room. She cried out and the man ran from the room to the locked backdoor of the premises. This happened quickly and her evidence was that she only saw the clothing of the man, there being no lights on inside, but described generally his height and that he was Samoan. The woman’s partner also awoke and saw a shadow of a person running in the hallway towards the backdoor. He followed him and said that he saw a T-shirt that the man was wearing. After the intruder escaped through the backdoor he was followed outside by the complainant’s partner. The intruder disappeared for a short period but then a man was observed to be running outside the property but near to a boundary and endeavouring to hide. The complainant had seen the man run outside the house and because of illumination by a street light, observed him wearing what he described as a white polo T-shirt with some writing on its back but she did not recognise the inscription. She said she only explicitly noted the colour of the clothes that he was wearing and she did not take notice of the writing on the back of the T-shirt. She described the man’s height and that he was Samoan. Whilst she and her partner were endeavouring to locate the intruder outside the house she saw the appellant and called out to her partner “there is the man.”
Thereafter she and her partner approached the man who was observed to be perspiring considerably. He was asked what he was doing and he said that he had been visiting the house of a friend somewhere nearby and had been playing billiard. Other Crown evidence was that this was untrue. It was not disputed that the man they approached and spoke to was the appellant.
In cross-examination the complainant said that the man that she saw in the house inside the bedroom had the same description as the man she saw when he ran into the street. She was shown a T-shirt and initially she said that it was not the shirt that she saw in the house but she maintained in evidence that the clothing worn by the intruder in the room was the same clothing as she observed the appellant to be wearing. The complainant’s partner who was pursuing the intruder said he saw a white T-shirt whilst the intruder was running in the house. The partner said that the T-shirt the man was wearing was white and had on the back of it the number 9 and he identified that shirt as being the exhibit shown to him by the prosecution. There is no dispute that the T-shirt produced as an exhibit which had the number 9 on its back was that which was being worn by the appellant that night.
In cross-examination it was put to the witness that the T-shirt that he saw on the intruder when inside the house whilst white, did not have a number 9 on it and the answer was “No”. In re-examination that issue was put squarely to the witness who said:
I didn’t notice there was any number because it was not really light inside just a shade you know but I only saw the number 9 outside the gate where he went home.
He affirmed (from a leading question by the prosecution) that given the light it would have been difficult to determine actual colours.
Evidence was called from the owner of a property in a nearby street, close to the street in which the complainant lived. He said that he was awoken in the early hours of the morning on 24 February to observe a Maori or Polynesian person standing in a driveway on his property, very close to his window. He described the person as being around 26-28 age group, being either Maori or Polynesian, with long dark trousers and a T-shirt with “what looked like a round or slightly oval patch on his back”. He said he saw the T-shirt with a “black patch on the back”. When challenged, the man walked off in the direction of the street in which the complainant lived. The witness telephoned the Police. It was conceded that the man seen by this witness in his driveway was the appellant. When located by the Police at his home later but in the early hours of the morning the appellant said that he had been in his lounge all night. A grey polo shirt was removed in the lounge which was taken as an exhibit that being the shirt with the numeral 9 on the back and also a pair of black jeans were taken.
The Issues
Counsel submits, first, the identification evidence was insufficient to convict, and second, submits the Judge erred in his directions as to the lies of the appellant.
Identification
No challenge is made to the summing-up of the Judge on the question of identification. He distributed a copy of a memorandum on that issue and emphasised to the jury the need for caution in assessing identification evidence and in particular to the identification of, or link the complainant made between, the man inside her house and the man seen running outside her house. The Judge emphasised the obvious issue was whether the man in the bedroom of the complainant was the same man as the accused who was seen and later confronted by the complainant and her partner.
Counsel for the appellant submitted that as neither the complainant nor her partner gave evidence so as to directly identify the person they saw in the house as being the appellant. Further he submitted that when the complainant herself was shown the T-shirt exhibit that the accused was wearing she said that it was not the article that she saw on the man in the house. Counsel submitted that there was on her part a “displacement” effect from the later identification of the appellant outside the property and shortly thereafter. That is through a process of mental deduction she assumed incorrectly that the accused seen outside her home and in similar clothing to the man earlier inside, was in fact the offender. Counsel says because the T-shirt that the appellant unquestionably was wearing outside had the number “9” on it, but was said not to have been that worn by the intruder, the identification of the accused by the complainant could not be correct.
It must be remembered however in its total context the evidence of the complainant was that she could not see matters of fine detail. She described the clothing whilst the person was in the bedroom:
as the white polo T-shirt with names at the back but I … did not recognise the names at the back of the T-shirt, the only think, I, was the colour of the clothes he was wearing. I have no doubt to take notice of the writing at the back of the T-shirt. Yeah as always –
Q.Because that was the screen-printed writing on the back?
A. Yes.
As with all identification evidence it is the quality of the evidence that matters. Circumstantial evidence and coincidence arising from multiple pieces of circumstantial evidence can, if unexplained, be supporting evidence of identification; R v Tamihere [1981] 1 NZLR 195. Very often it is the very cumulative effect of circumstantial evidence that establishes proof of identity of a person or object.
Circumstantial evidence led by the prosecution and before the jury included the fact that the intruder was wearing dark jeans and a light coloured shirt which had some form of writing or dark printing on its back; he was Samoan; after the intruder had been chased outside the property the accused was seen by the complainant and her partner outside the complainant’s property, sweating profusely and was immediately identified as the intruder by the complainant. Of course she could have been mistaken then, as when giving evidence. But the accused was wearing dark coloured jeans and a light (white or grey) shirt with a black number 9 on its back. He gave an explanation as to where he had been which, according to the Crown evidence, was false. Within a short time, he was located at his home and gave a different explanation that he had not been out all night which was also false. A further item of circumstantial evidence was that given by the owner of the property in the near vicinity, identifying a man acting suspiciously and lurking on his premises wearing a distinctive T-shirt with a black inscription on its back. It gave him sufficient concern to dial 111. That person had features consistent with the appellant and his counsel conceded that it was the appellant.
The defence case was the evidence was insufficient to enable a jury to conclude beyond reasonable doubt that identification had been established. We are satisfied that the totality of the evidence from the complainant, her partner, the nearby neighbour was such that the jury were well entitled to accept that the intruder into the property was the appellant who was confronted outside. The possibility that the complainant was mistaken in her seeing a Samoan man in her room, in a light coloured T-shirt with writing on the back, and the unlikely possibility that the offender might have been some other Polynesian man dressed in similar clothing was something that was squarely left to the jury to assess together with all the surrounding evidence. In deciding whether a verdict is unreasonable or could not be supported having regard to the evidence is not a process which lends itself to any extensive elaboration of reasons. We are satisfied the cumulative circumstantial evidence was sufficient to enable the jury to reach the conclusions that it did provided that it received the proper warnings, which it did. There was ample evidence upon which a reasonable jury could be satisfied to the required standard beyond reasonable doubt that the appellant had been identified as the offender.
As to the question of lies
The defence contends that the trial Judge misdirected the jury on the question of lies allegedly told by the appellant. The evidence was, from a Police deposition read by consent and not the subject of cross-examination, that when the appellant was confronted in the lounge of the premises where he had been located a few minutes after he had been seen and identified in the street outside the victim’s home, the appellant it is said he had been in the lounge all night. That evidence was not subject to any challenge and it is recorded in the summing up that the appellant’s counsel conceded in his address to the jury that the man seen running outside the house of the victim a short time earlier was the appellant. There is no doubt at all that the Judge was required to give to the jury a direction as to how it dealt with that evidence, on the face of it and in view of the concessions, obviously a lie or for some other reason blatantly incorrect.
The Judge, in directing the jury on this issue, said:
Proceeding on the basis that that evidence [the Police Officer’s evidence as to the accused’s claim] must be accepted at face value … the answer which Mr Sipa gave to Constable Scott’s question was a lie. That is, of course because Mr Sipa had not been in the lounge all night, because he had been out on Herdman Street and into Dalglish Place.
He went on to say:
If, as you must be, you are satisfied that Mr Sipa lied to Constable Scott, the only relevance of that lie might relate to your assessment of his denial of any involvement. In any event, all you would do is disregard his denial, which would simply mean that you have nothing at all from Mr Sipa in respect of the allegations he faces.
Further, the Judge gave to the jury the usual direction as to how lies were to be treated and the Judge stressed to the jury that they should not reason that because the appellant had lied to the Police Officer that he is or must be guilty and further that if they were satisfied that a lie had been told that was an issue they might consider when considering the appellant’s credibility but nothing more.
The essence of counsel’s submission on appeal is that the Judge told the jury that in fact the appellant did lie as to his whereabouts when the issue of whether that statement was a lie or not was a matter for the jury. This was emphasised by the Judge in his summing-up and in the particular circumstances of this case where the statement where the statement was read, not subject to challenge or cross-examination, no error arose. Further it was conceded that the appellant was the man seen lurking on the driveway of nearby premises despite his claim to the Police that he was in his lounge all night. Comment that this was on its face, a lie, could hardly be said to be misdirection.
The real issue was whether the jury were properly directed as to the proper use to which such evidence of lies could be put and we are satisfied the Judge did not err in this respect. The direction as to lies was careful and indeed quite lengthy, such direction being required from the circumstances where the evidence was that two lies had been told.
We are satisfied that no error of law arose and that the jury’s verdict was justified on the evidence. Accordingly the appeal against conviction must be dismissed.
Appeal against sentence
Turning to the appeal against sentence. The appellant was a Samoan first offender, aged 36 years, in New Zealand on a visitor’s permit in January 2001. On the night in question he had consumed a significant amount of alcohol. The Judge observed that the Crimes (Home Invasion) Amendment Act 1999 applied. This was unquestionably offending involving home invasion and the Judge noted the Court of Appeal’s observations in R v Mua (CA190/94, 3 November 1994) that entry into dwellings at night and assaults, particularly indecent assaults must draw stern sentences because the appellant denied the offending. Questions of remorse and undertaking treatment, to deal at least with his excessive alcohol consumption, were not appropriate. The probation officer recommended imprisonment.
On appeal counsel submitted that the term of three years imprisonment imposed was manifestly excessive. He referred to cases which he submitted had a similar factual background, but those were decided before the home invasion legislation was introduced. As has been often said, reference to the facts of other cases in sentencing exercises are usually unhelpful unless matters of principle arise from those cases. Counsel submitted that the indecent assault in this case was very much at the lower end of the scale involving the touching of the leg of the complainant, and that is correct. Nevertheless she was asleep and but for her awakening the acts of the appellant may well have proceeded further, given that he had entered into the property with the intent of committing a crime. The gravity of the crime was not the extent to which the appellant was able to fulfil his purpose, but the entering into premises at that hour, and committing an offence on a stranger in the privacy of her home.
Care must be taken to avoid “double counting” when sentencing is undertaken in situations where home invasion legislation applies. Counsel argues that based upon a sentence of nine months imprisonment, imposed by the High Court in an unrelated case of Fuataga v Police (High Court, Auckland Registry, AP88/97, 16 May 1997), then applying the home invasion legislation a sentence of 18 months was appropriate in the present case. He says a sentence of three years was outside the available range.
In the present case the Judge was aware of the caution against double counting and said that he must give discreet recognition to the home invasion element. This is one of those cases where it would be unrealistic to approach sentencing on the basis of imagining the same offending being committed in a place other than the home, because the events cannot be envisaged as occurring anywhere else except in the setting of a home. The preferable approach, as observed by this Court in R v La’ulu (CA560/99, 20 March 2000) is for the Judge to assess the sentence that would have been imposed before the home invasion legislation and then, by reference to the increased maximum sentence, make an upwards adjustment with an expressed recognition that the adjustment is tempered by an appreciation that there is, within the first figure arrived at, an element of punishment for the invasion of the home.
A stern sentence was required, because Parliament demands that home invasion be treated as a especially aggravating feature. The total sentence must be seen as appropriate having regard to all relevant factors including the new legislation. In the present case this offending could well have justified a term of imprisonment of 18 months. Given the home invasion element, and the increase in the penalties for indecent assault from seven years imprisonment to 10 years appropriate adjustment would have been at least a further nine months. Beyond that we think any sentence would have been manifestly excessive. This essentially was a drunken night time intrusion into a dwelling house accompanied by an indecent assault very much at the lower end of the scale of seriousness for that crime. We think the adjustment undertaken by the sentencing Judge went beyond what was required.
Conclusion
The appeal against conviction is dismissed. The appeal against sentence is allowed and the sentence quashed, and term of imprisonment two years and three months substituted.
Solicitors
Iosefa & Co, Christchurch for Appellant
Crown Law Office, Wellington
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