R v Tanginoa - [2012] NZHC 3121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-015420 [2012] NZHC 3121

THE QUEEN

v

PETER LAWRENCE TANGINOA DOUGLAS DAVID AFEAKI

DAVID CHARLES STEPHEN JOSEPH MAFI

Hearing: 30 October 2012

Appearances: D G Johnstone and M Geller for Crown
P Le'au'anae for Tanginoa G N E Bradford for Afeaki M N Pecotic for Mafi

Judgment: 22 November 2012

REASONS OF POTTER J FOR DISMISSING

CROWN’S APPLICATION TO ADMIT EVIDENCE OF CONVICTIONS

This judgment was delivered by Justice Potter on
22 November 2012 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140 david.johnstone@meredithconnell.co.nz
Copy to:
P Le’au’aunae, PO Box 76616, Manukau City 2241 panama.leauanae@friendshipchambers.co.nz
GNE Bradford, PO Box 2274, Shortland Street, Auckland 1140 gneb@xtra.co.nz
M N Pecotic, PO Box 6379, Wellesley Street West, Auckland 1140 mariapecotic@mhotmail.com

R V TANGINOA HC AK CRI-2011-004-015420 [22 November 2012]

Introduction

[1] Peter Tanginoa faces trial on the following charge:

… that between 1 June 2011 and 30 August 2011 at Auckland conspired with
others to import a Class A controlled drug into New Zealand.

[2] Douglas Afeaki and David Mafi face trial on the following charge:

… that between 1 June 2011 and 30 August 2011 at Auckland conspired together and with others to supply a Class A controlled drug to one or more other persons.

[3] Mr Tanginoa was charged jointly with Angus Naupoto, who entered a guilty plea prior to trial. Mr Afeaki and Mr Mafi were charged jointly with William Wolfgramm, who entered a guilty plea and has been sentenced.

[4] In its amended application dated 29 October 2012, the Crown applied to have admitted at the trial of Messrs Tanginoa, Afeaki and Mafi, evidence of the convictions of Mr Naupoto and Mr Wolfgramm to prove the existence of the conspiracies of which they respectively admitted by their guilty pleas, they were part. The application was opposed by all three accused.

[5] After hearing argument from counsel I dismissed the Crown’s application and

said that my reasons for that decision would follow. These are the reasons.

Factual background

[6] For the purposes of this application the factual background may be briefly summarised. The Crown case is that Mr Naupoto and Mr Tanginoa were victims of a scam by persons in Tonga who claimed they had access to a stockpile of some 400 kilograms of methamphetamine located somewhere in Tonga. The Crown alleges that Messrs Naupoto and Tanginoa entered into a conspiracy to import the methamphetamine into New Zealand; and then to sell it and share the profits. To this end they engaged with Mr Wolfgramm, who in turn arranged with Messrs Afeaki and Mafi to take delivery of the methamphetamine and to sell and distribute it in

New Zealand. Something in excess of NZ$7,000 was transferred in instalments to the Tongan associates. NZ$3,500 of this was provided by Mr Mafi.

[7] When the police in Tonga and New Zealand became aware of…

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 R v Tanginoa

Details

AGLC: R v Tanginoa [2012] NZHC 3121
Case: [2012] NZHC 3121
Decision Date: 22 November 2012

CaseChat Overview and Summary

The Crown applied to admit at the trial of Tanginoa, Afeaki and Mafi, evidence of the convictions of Naupoto and Wolfgramm to prove the existence of the conspiracies of which they respectively admitted by their guilty pleas, they were part. The application was opposed by all three accused. The court dismissed the Crown’s application. The court held that the entry of a guilty plea by an accused is his confession of guilt to the offence charged, but the evidence that establishes the essential elements of the charges against them has not been tested at trial and has not been admitted by the three accused. They are entitled to offer an effective defence which challenges both that a conspiracy has been established, and, if so, that the accused in question was a party to it. There is a real risk, were the evidence of the convictions of Naupoto and Wolfgramm to be admitted, that the jury may determine the guilt of the accused on the basis of their general association with, respectively, Naupoto and Wolfgramm. Judicial direction is unlikely to provide a clear pathway for the jury that would ensure this risk is overcome.

Orders