R v Te Pou

[2022] NZHC 2731

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-090-5558

[2022] NZHC 2731

THE KING

v

MANAWANUI TE POU

Hearing:	20 October 2022
Counsel:	D M A Wiseman for Crown N T Tupou for Defendant
Judgment:	20 October 2022

JUDGMENT OF BREWER J

[Section 147 discharge]

Solicitors/Counsel:

Meredith Connell (Auckland) for Crown N T Tupou (Auckland) for Defendant

R v TE POU [2022] NZHC 2731 [20 October 2022]

[1]    Mr Te Pou has been charged with the aggravated robbery of Mr Lim. Yesterday, the evidence concluded. This morning, before the jury was in Court, I advised counsel of my provisional view that there is insufficient evidence to go to the jury. I told counsel that I would hear their closing addresses, principally so that I could be sure I had understood properly the Crown case and the inferences which the Crown would ask the jury to draw.

[2]    Following the addresses of counsel, and in the absence of the jury, I debated the Crown case with Mr Wiseman and satisfied myself that I fully understood the Crown case.

[3]    I remain of the view that as a matter of law there is insufficient evidence to go to the jury, and I will now give my reasons.

[4]    First, there is no contest that Mr Lim was the subject of an aggravated robbery which occurred at about 6 am on 2 November 2019. Mr Lim’s home in Auckland was invaded by two men who were unknown to him. Using violence and threats of violence, they extorted from him the keys to his Hyundai motor vehicle, a cellphone and cash. One of the robbers then drove off with the Hyundai motor vehicle. None  of this is in dispute.

[5]    Neither is it in dispute that the two men who entered Mr Lim’s house arrived at his address in a red Ford Falcon motor vehicle. This was associated with a blue Ford Falcon station wagon which arrived in convoy with the red Ford Falcon and which parked near the entrance to Mr Lim’s driveway. It is clear that the occupants of the blue Ford Falcon station wagon were associated with the robbers. That is because one of the robbers, a Mr Tamiefuna who has pleaded guilty to his part in the robbery, was seen on CCTV to come out of Mr Lim’s driveway and walk to the blue Ford Falcon station wagon to obtain a cigarette from one of its occupants. This must have been before the two robbers went into Mr Lim’s house.

[6]    So, in summary, the only issue in this trial is whether the Crown has sufficient evidence that the defendant was one of the robbers, either directly by being one of the

two men who went into the house, or indirectly as a party by being one of the occupants of the blue Ford Falcon station wagon.

[7]    When considering that issue, I have regard to s 147 of the Criminal Procedure Act 2011. This provides that I may discharge a defendant on a charge if I am satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant. In making that assessment I must take the Crown case at its highest.

[8]At its highest, this is the Crown case:

·     The red Ford Falcon used in the robbery belongs to the defendant. He is associated with the red Ford Falcon before the robbery.

·     Shortly after the robbery, the red Ford Falcon was abandoned. Shortly afterwards, it was located by the police and the defendant’s association with the red Ford Falcon was confirmed by the presence of his fingerprints on the bonnet of the vehicle. Of course, the fingerprint experts could not say when the fingerprints had been left on the bonnet of the vehicle.

·     The second vehicle used in the robbery, the blue Ford Falcon station wagon, was seen some seven hours after the robbery at a Z service station. CCTV footage shows the defendant getting out of the blue vehicle and going into the service station. Therefore, the defendant is associated with the second car used in the robbery some seven hours after the robbery.

·     Further, the identified and admitted robber, Mr Tamiefuna, is also associated with the blue car.  That is evidence that the defendant and    Mr Tamiefuna are associated.

·     Finally, some two weeks after the robbery the defendant was identified as driving the stolen Hyundai motor vehicle.

[9]    Mr Wiseman submits that the defendant would have to be very unlucky indeed for this to be a series of coincidences unrelated to him being one of the robbers. In

particular, Mr Wiseman submits that the evidence that the defendant was driving the Hyundai motor vehicle on the occasion that he was found to be doing so is strong evidence that he was one of the robbers.

[10]   The standard of proof that the Crown must meet is proof beyond reasonable doubt. That is to say, the evidence must be sufficient for a properly directed jury to be sure of guilt. Part of that process requires evidence that can displace any reasonable possibility going against guilt. In my view, the evidence is not sufficient in law, if accepted by the jury, to prove the case beyond reasonable doubt. The Crown’s evidence cannot displace the reasonable possibility that although the defendant was associated with the robbers he was not present when it occurred, either as one of the two men who entered the house or as an occupant of the blue Ford Falcon station wagon.

[11]   There is no evidence that the defendant associated with Mr Tamiefuna prior to the robbery. There is no evidence to negate the reasonable possibility that the defendant lent his red Ford Falcon to the people who committed the robbery. I reach this conclusion having accepted Mr Wiseman’s submission that individual pieces of circumstantial evidence must be considered for their collective strength rather than for their individual strengths. The problem is that the associations between the defendant and the pieces of circumstantial evidence taken together do not displace other inferences, including one of general association with the robbers.

[12]   I am not naïve. I find it very likely that the defendant was one of the robbers and I am satisfied that, as a matter of law, the jury would be able to find that the defendant was very likely one of the robbers. But “very likely” is insufficient to meet the standard of proof beyond reasonable doubt.

[13]Mr Te Pou, would you stand please.

[14]   Mr Te Pou, I discharge you on the charge of robbing Mr Lim as that charge appears in the Charge List. A discharge under s 147 of the Criminal Procedure Act is deemed to be an acquittal.

Brewer J