R v Mason

[2004] NZCA 11

IN THE COURT OF APPEAL OF NEW ZEALAND

CA277/03
CA296/03
CA302/03

THE QUEEN

v

WAYNE MICHAEL MASON
AARON RORE COOTES
WAYNE ARAPATI TAWHAI

Hearing:17 February 2004

Coram:O'Regan J
Goddard J
Paterson J

Appearances:  Y R Summers for Appellant Mason

D G Harvey for Appellant Cootes
T C Thackery for Appellant Tawhai
E M Thomas for the Crown

Judgment:2 March 2004 

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1]       The appellants were jointly charged with the aggravated robbery of the Eastside Dairy in Levin on 23 May 2002 (s235(1)(c) Crimes Act 1961).  The particulars of the charge were that:

On or about the 23^rd day of May 2002 at Levin being armed with an offensive weapon, did assault with intent to rob [the victim].

[2]       The victim and his wife were the owners of the dairy.  The appellants pleaded not guilty and were convicted at trial.

The robbery

[3]       The brief facts of the robbery are that on the evening of 23 May 2002 a man entered the Eastside Dairy near the intersection of Bartholomew and Bath Streets dressed in a black coat, black mask and gloves.  He presented a pistol at the shop owner and demanded money.  The shop owner immediately ducked down behind the counter and yelled loudly.  His wife who was in a storeroom behind the shop heard him and was able to observe the offender.  The offender remained for only five or six seconds before fleeing from the shop without taking anything.  The owner watched him depart and saw that he turned right on Bartholomew Street towards Bath Street.  The owner then activated a panic alarm under the counter and that activation was logged by Chubb Security as occurring at 6.56pm.

The evidence

[4]       The owner was not able to describe the offender’s face because he was wearing a “shiny black woollen mask” at the time.  However, the owner had a clear view of the gun that was presented at him and was also able to observe that the offender wore black woollen gloves.  He described him to the Police as having been of “solid build” and at trial said he was “a bit shorter than my wife” (that is, a little shorter than 5 foot 3 inches).  He said the offender was wearing a long woollen top like a “warm coat”.

[5]       The shop owner’s wife gave the following description of the offender:

… He was all in black, he covered up his face with the black and he wear black jacket.

When you say he covered his face with the black, can you describe what he covered his fact with … Like um, black woollen, can’t remember that much but, like a … woollen hat just, pulled it back.

Could you see any parts of his face … No only eyes.

… can you tell us how big or small he was … He was about 5 foot 2 or 3.

What sort of body type was he … He looked chubby.

[6]       The shop owner’s wife had also seen the gun, which she described as short and black.  She also noticed that the offender was wearing black gloves, although she was not sure whether these were woollen or leather.  She described the black jacket worn by him as shiny “leather or vinyl something like that”, possibly with a white patch with blue writing on it.

[7]       The offender’s image was recorded on a security video camera in the dairy and the videotape produced as an exhibit at trial.  Still photographs from that video depict the offender as bulky either in build or clothing and wearing what appears to be a jacket with a hood pulled up over his head.  The videotape also depicts him as wearing black pants with a white or light coloured stripe and black shoes with white soles.  It is however impossible to discern from the videotape just how tall the offender was. 

[8]       None of the clothing described as worn by the offender has been located by the Police.  However, a pair of black gloves were found at the house of Mr Tawhai’s mother beside a bag containing a black air pistol.  These items were later identified by the shop owner as of the same type as those worn and brandished by the offender.

[9]       Two independent witnesses gave evidence of sightings and movements of relevance both in the period immediately before and at the time of the robbery.  The first of these witnesses, Mrs Winiata, gave evidence of having observed the appellants in a distinctive vehicle outside the Playford Dairy on Bledisloe Street at about 6.40pm that evening.  At the time she was waiting to uplift orders for takeaway food from a shop in the same block as the Playford Dairy and her attention was drawn to the appellants’ vehicle by the fact of its being loudly revved.  She described the vehicle as “maroony red, square, looking like a Triumph”.  Whilst she was observing the vehicle someone got out of it and went into the Playford Dairy.  She said he returned “with nothing … but there was a lot of swearing”.  She said there were three males in the car and described the driver as wearing a Swandri (later acknowledged by Mr Mason, the driver, as correct) and the front seat passenger as wearing a “grey hoodie with print on it”.

[10]     Mrs Winiata said the car then departed rapidly in the direction of Bartholomew Street.  When she drove home shortly afterward, she observed the same car to be parked in Bath Street near the Eastside Dairy.  The car lights were off and she did not see if there were any occupants.  She estimated her journey from the Bledisloe shops to her home as having taken about five minutes and said that that part of the journey from the Eastside Dairy to her home had taken “a few minutes”.  When she arrived at home the introductory music to the Holmes Show was playing and on that basis she estimated her arrival in her house as being at about 7.00pm.

[11]     Evidence was also given by a second witness, Mr Bell, of driving along Bartholomew Street towards the Eastside Dairy at about 7.00pm.  As he approached the Eastside Dairy he said he saw someone run out of the dairy and across the adjacent street (identified as Bath Street).  He said this person was dressed in dark clothes but he could not be any more specific than that.  He said the person “looked like they had a hood over their head” and also looked as if he were holding something against his chest and that he looked both ways before he ran.  Mr Bell saw the person cross the road still running and then lost sight of him. When Mr Bell looked back at the Dairy he saw someone, who he assumed to be the shop owner, standing in the open doorway.

[12]     The appellants all made statements to the Police.  In his statement Mr Mason acknowledged that he had been driving a maroony red Triumph car that evening and said that it belonged to an associate of his.  He also stated that Mr Tawhai and Mr Cootes were in the car with him that evening and that they had gone to the Playford Dairy.  He subsequently acknowledged that he had subsequently driven the car to the Eastside Dairy and parked it in Bath Street whilst Mr Cootes went in to make a purchase.  When asked whether anything that Mr Cootes did or said when he returned to the car from the Eastside Dairy had made him suspicious, Mr Mason answered:

… I didn’t even get a hint that he did something.  I had just asked him whether he got the drink and chips.  I just seen them in his hand.  When he jumped in it didn’t look like he’d done anything but he could have – he’s pretty quiet and shady.

[13]     In his statement to the Police, Mr Cootes denied any knowledge of the robbery and said that he had spent the evening with Mr Mason at his home and had also stayed the night there.  He admitted that he had gone to the Playford Dairy at about 6.50pm but said he had not gone into the dairy.  He said that he had walked to the Playford Dairy with Messrs Tawhai and Mason and that Mr Tawhai had gone into the Playford Dairy to buy chips, coke and milk.  However, later in his interview, when provided with a copy of Mr Mason’s statement, he admitted that he had been in the red Triumph car that evening but said that it was only for the purpose of going to the Playford Dairy.  He denied ever having gone to the Eastside Dairy and said that the three appellants had simply travelled straight back to Mr Mason’s house after going to the Playford Dairy.

[14]     In his statement, Mr Tawhai admitted that he had been with Messrs Cootes and Mason in the red Triumph car that evening and said that all had gone to a dairy near Waiopehu Flats sometime between 8.30pm and 9.30pm.  An enquiry by police subsequently ascertained that the dairy at Waiopehu Flats was not however open at that hour.  When shown the air pistol found at his mother’s address Mr Tawhai first acknowledged it as his but then said that it was not his. 

[15]     Mr Tawhai was the only one of the three appellants who gave evidence at the trial.  In his evidence he accepted that the three appellants had gone to the Bledisloe Street shops in the red Triumph and that they were outside the Playford Dairy at about 6.40pm.  However he denied that they had subsequently travelled on to the Eastside Dairy whilst nevertheless acknowledging that the three of them had remained together throughout the evening.

The summing up

[16]     In his summing up to the jury, Judge Atkins directed that the statements made by each appellant to the police were evidence only against the respective appellant and were not evidence for or against either of the other appellants.  He further directed the jury that the situation differed with respect to the evidence that had been given by Mr Tawhai at trial, and that his evidence could be taken into account when considering the position of Messrs Cootes and Mason.  The Judge also carefully directed on the need for caution in relying on the identification evidence and on the use generally to be made of circumstantial evidence.  He also directed the jury to be careful not to infer guilt from any lies they may think had been told to the police or in evidence.  He finished by reiterating the case for each appellant in some detail.

[17]     The summing up was not the subject of any criticism on appeal.  On the contrary, Mr Harvey on behalf of Mr Cootes, acknowledged the clear nature of the directions given by Judge Atkins in relation to disregarding what Mr Mason had said in his police statement, when considering the case against Mr Cootes.

Appeals

[18]     Each appellant has appealed against his conviction on the same single ground: that the verdicts of the jury were unreasonable and cannot be supported having regard to the evidence (s385(1)(a)); more particularly, that what little evidence there was against each appellant was circumstantial only and insufficient to justify a conviction.

[19]     The applicable principles were discussed in R v Ramage [1985] 1 NZLR 392 (CA), a case in which the evidence relied upon was circumstantial. At 393 of the judgment this Court said:

... In such a case the jury may infer guilt where that is the only rational conclusion on the facts proved: see the direction in R v Hodge (1838) 2 Lew CC 227.  The common ground advanced by the applicants – that the verdict is unreasonable or cannot be supported having regard to the evidence – is that contained in s385(1)(a) of the Crimes Act 1961.  A verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant.  It is not enough that this Court might simply disagree with the verdict of the jury: see R v Mareo (No 3) [1946] NZLR 660; R v Ross [1948] NZLR 167; R v Kira [1950] NZLR 420; Chamberlain v R 91984) 51 ALR 225.

[20]     On behalf of Mr Cootes, Mr Harvey submitted that the only admissible evidence against Mr Cootes was the evidence that he was in the red Triumph car outside the Playford Dairy at about 6.40pm and that he had initially lied in his statement to the Police about how he got to that Dairy.  Mr Harvey submitted that this paucity of evidence could not even begin to justify a conviction, and that the only basis upon which the jury could have convicted Mr Cootes was by the illegitimate use of inadmissible material in Mr Mason’s statement.  This evidence he described as “prejudicial in the extreme but of no probative value whatsoever”.  Mr Harvey’s argument was that, despite the trial Judge’s clear direction to the jury that they must disregard whatever Mr Mason had said in his statement when considering the case against Mr Cootes, the jury clearly overlooked or failed to apply that direction.

[21]     In addition, Mr Harvey was critical of the evidential strength of Mrs Winiata’s alleged sighting of the same red Triumph car as she had observed outside the Playford Dairy subsequently parked in Bath Street near the Eastside Dairy.  He suggested that she was an honest but mistaken witness in this aspect of her evidence and that the car she had seen near the Eastside Dairy was not the same red Triumph that she had earlier seen outside the Playford Dairy.  He pointed to her concession under cross-examination of the possibility of an assumption that it was the same car because it was a car of the same make and colour.  He referred to the fact that when she was driven through Levin by a detective some days later she had correctly identified the red Triumph car used by the appellants but she had incorrectly identified a person talking to the driver as Mr Cootes.  This mistake was, he said, an example of her unreliability and underscored the risk of an honest mistake in a stranger identification.  In summary he submitted that the red car Mrs Winiata said that she saw parked near the Eastside Dairy on her way home was not the appellants’ red Triumph car; and the robber was not Mr Cootes nor the other appellants given the differences between the height and build of the appellants and the description of the robber by the shop owner and his wife. 

[22]     On behalf of Messrs Mason and Tawhai, Ms Summers and Mr Thackery endorsed the submissions made by Mr Harvey, although Ms Summers advanced an alternative theory based on timing.  In this regard she accepted that it may have been the appellants’ the red Triumph car that Mrs Winiata had sighted outside the Eastside Dairy (Mr Mason having admitted parking it in the Bath Street layby) but submitted that if it was the appellants’ vehicle, then it had not been sighted at around 18:56 but later after the robbery had been committed.  Expressly she submitted:

In summary, the robbery occurred 4 minutes before 7, before Robina Winiata drove by.  The robber, it is submitted, had gone, had left the scene at least a minute before she arrived and there was no car in the layby at the time that the robber ran out of the shop.  It is submitted that the car Robina Winiata said she saw was not a car in any way related to the robbery.

[23]     This submission was based on the evidence that Mrs Winiata said her arrival at her home coincided with the introductory music to the Holmes Show, and on Mr Bell’s evidence that he had not seen any car parked in Bath Street at around 7pm when he said he saw the robber run out of the Eastside Dairy and down Bath Street.

[24]     Ms Summers also questioned the integrity and reliability of the identification of the air pistol found at Mr Mason’s mother’s address, based on the common nature of such weapons further submitted that Mr Mason had been “led” into giving many of the answers in his statement to the police.  She accepted, however, that Mr Mason’s statement had not been the subject of challenge and was properly admissible against Mr Mason.

[25]     For Mr Tawhai, Mr Thackery reiterated the apparent discrepancy in the description given of the robber and the physical characteristics of the appellants; the generic nature of the black air pistol and gloves found at Mr Tawhai’s mother’s house; the fleeting glimpse that Mrs Winiata had of the red Triumph car that she said she saw in Bath Street near the Eastside Dairy; and the inconsistency between that evidence and Mr Bell’s evidence that a man came out of the Dairy and ran away down Bath Street.  He submitted that if Mr Tawhai’s trial had been severed from the trial of his two co-accused (in particular Mr Mason) then Mr Tawhai would not have been convicted by the jury.  Mr Thackery acknowledged, however, that no severance application had been made on Mr Tawhai’s behalf and that such an application would have been unlikely to succeed.

Discussion

[26]     It is important to commence discussion of the issues on appeal by recording that Mrs Winiata’s sighting of the three appellants in their vehicle outside the Playford Dairy at about 6.40pm was not challenged at trial but accepted as correct.  Her description of what the driver (Mr Mason) was wearing was also accepted as correct and she further described the front seat passenger (Mr Cootes) as wearing a grey hoodie with print on it.

[27]     The major challenges to Mrs Winiata’s evidence were directed to two matters: first, whether it was the same red Triumph vehicle she had sighted later in Bath Street near the Eastside Dairy; and, if it were the same vehicle, whether she had in fact sighted it after the robbery had been committed.

[28]     The starting point for determination of the first of those issues is Mr Mason’s admission to the police that he had driven the red Triumph vehicle to the Eastside Dairy and had parked it in the Bath Street layby.  Notwithstanding Mr Harvey’s challenge to Mrs Winiata’s evidence of sighting the red Triumph at the Eastside Dairy shortly before 7.00pm, this admission by Mr Mason provided cogent evidence that he had driven the car to the Eastside Dairy and parked it where Mrs Winiata said she had seen it parked.   Although that evidence was admissible only against Mr Mason, Mr Tawhai’s evidence at trial of the three appellants having been together throughout the evening was a further factor that the jury were entitled to weigh against the appellants’ denials that neither Mr Tawhai nor Mr Cootes were in the car when Mr Mason drove it to the Eastside Dairy.  Mr Tawhai’s evidence of the three being together all evening, when considered alongside Mrs Winiata’s accepted identification of the three appellants in the car outside the Playford Dairy only 15 or so minutes earlier, and Mr Mason’s admission that he drove the car to the Eastside Dairy raised the reasonable inference that all of the appellants had travelled to the Eastside Dairy in the red Triumph.  Even when Mr Mason’s evidence is put to one side, as it must be in respect of Mr Cootes and Mr Tawhai, the jury were entitled to reach the same inference from the combination of the evidence of Mrs Winiata and Mr Tawhai to which we have just referred and Mrs Winiata’s evidence that she later saw the red Triumph outside the Eastside Dairy.

[29]     In relation to the second issue, concerning the time at which Mrs Winiata must have sighted the red Triumph vehicle outside the Eastside Dairy, it was open to the jury to conclude that this was immediately before or at the time of the burglary, rather than after the burglary as Ms Summers suggested.  Neither Mrs Winiata nor Mr Bell gave precise evidence as to timing; rather, both related it to the approximate time of their own movements.  On Mrs Winiata’s estimate she was still waiting for her takeaway food at around 6.40pm when she saw the appellants depart the Bledisloe Street shops in the red Triumph.  She estimated her journey home as taking about five minutes and that part of her journey from the Eastside Dairy to her home as having taken a “few moments”.  She said the introductory music to the Holmes Show was playing when she entered her house.  On this timing she could well have sighted the red Triumph car in Bath Street near the Playford Dairy shortly before or at the time of the robbery, the total timeframe being only a matter of five or six minutes.  The evidence establishes that the shop owner activated his alarm at 6.56pm, just after the robber had fled from the shop.  Accepting that it was the robber who Mr Bell saw run from the shop, then this must have been at around 6.55pm-6.56pm, rather than 7pm as Mr Bell thought.  This fits with the timeframe described by Mrs Winiata.  Furthermore, there is no evidence that a purchase, such as described by Mr Mason, was made after the robbery had occurred, as the security video did not record such an event.

[30]     In relation to Mr Bell’s evidence that he had not seen any vehicle parked in the layby in Bath Street at the time he saw the robber running from the Dairy, it was open to infer that the red Triumph vehicle did not remain in the layby while the robbery was being committed but was moved down the street.  Mr Bell’s evidence of not seeing any car parked in the layby, when coupled with Mr Mason’s statement that he did park the car in the layby and Mrs Winiata’s evidence of sighting it there, tends to confirm the theory that the vehicle was moved from the layby after the robber had alighted from it.

[31]     The other issues raised on appeal were the discrepancy between the physical appearance of the three appellants and the description of the robber given by the shop owner and his wife.  There is no issue that the three appellants are all taller than 5 foot 3 inches and that none can be described as “chubby” in build.  Their physical characteristics were however specifically drawn to the jury’s attention during the trial and the jury had the advantage of being able to observe the appellants throughout three days of trial.  The jury also had the benefit of viewing the offender’s image on the videotape.  As noted, whilst that image is not helpful in determining the height of the robber it does indicate a person who is either bulky in build or in clothing and who appears to be wearing a jacket with the hood pulled up over his head.

[32]     The opportunity which the shop owner and his wife had to observe the robber was both fleeting in nature and made under stressful circumstances.  The shop owner ducked down behind the counter as soon as he saw the gun presented at him and his wife’s observations were made from the storeroom at the rear of the shop.  The trial Judge directed the jury about the need for caution in assessing such eyewitness evidence and at the end of the day the discrepancies in description of the robber by the shop owner and his wife and the physical characteristics of the three appellants was eminently a question for the jury to determine in the context of the evidence as a whole and against the appellants’ various denials of any involvement in the robbery.

[33]     The final issue related to the reliability and integrity of the identification of the gun and the black gloves found at Mr Tawhai’s mother’s home as the same as those brandished and worn by the robber.  Although Mr Tawhai equivocated about ownership of the gun and did not acknowledge ownership of the gloves, it is indisputable that these items were found in a house in which he had recently been residing.  The fact that these articles were of a generic type was a matter well canvassed in cross-examination before the jury.  The jury was entitled to use this piece of circumstantial evidence together with all of the evidence and weigh that against the various denials the appellants made to the police and in evidence.

[34]     Applying the test in Ramage, it was rationally open to the jury, properly directed as they were, to infer guilt on the evidence at trial taken as a whole.  The fact that most of that evidence was circumstantial in nature does not detract from the verdicts.  We are therefore unable to accept the common ground of appeal advanced, that the verdicts of the jury were unreasonable or could not be supported having regard to the evidence. 

Conclusion

[35]     The appeals are dismissed.

Solicitors:

Opie & Dron, Palmerston North, for Appellant Mason
Duncan Harvey, Palmerston North for Appellant Cootes
Yvonne Summers, Levin, for Appellant Tawhai
Crown Law Office, Wellington