R v Tupou

AN ORDER OF THE HIGH COURT PROHIBITING PUBLICATION OF THE NAME OR MEANS FOR IDENTIFYING THE VICTIM REMAINS IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA107/02
CA128/02

THE QUEEN

VILIAMI AKA TUPOU
TRINITY ELIJAH DUFFY

Hearing:	29 July 2002
Coram:	Gault P Robertson J Paterson J
Appearances:	L P Iosefa and B N Ayrey for Tupou
J Aickin for Duffy J M Jelaś for Crown
Judgment:	30 July 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

The two appellants were found guilty on one count of wounding with intent to cause grievous bodily harm in the District Court at Christchurch. They were jointly sentenced on 26 March 2002, Mr Duffy to six years imprisonment and Mr Tupou to nine years imprisonment. A third co-offender, Mr Pousini, was sentenced to six years imprisonment. A fourth co-offender, Mr Tomlinson, was convicted after pleading guilty to the same offence. He was sentenced to five years imprisonment. Messrs Duffy and Tupou now appeal against their convictions and sentences.

Background facts

The circumstances giving rise to the charges evolved out of an altercation at Flat [Y], [X] Street at about 9pm on 23 February 2001. Mr Tomlinson, an associate of the appellants, was attending a party at that address when Mr B, the occupant of another flat within the same building, came over and asked those present to reduce the noise level. This lead to a heated confrontation between Mr Tomlinson and Mr B. Mr Tomlinson’s response was to go into the central city area where he met up with the appellants and two others. All five persons, then returned to Flat [Y], [X] Street.
One of the occupants at that address, Ms N, gave evidence that there was a discussion between all five persons regarding what should be done by way of a response to the earlier confrontation between Mr Tomlinson and Mr B. The outcome of that discussion was the decision to give Mr B a beating. Ms N said that Mr Tupou referred to “smash[ing] the neighbour over”. At about 1am the group left Flat [Y] and went around the rear of the building towards the flat which was occupied by Mr B and his partner. On the way some members of the group armed themselves with pieces of timber which were lying on the ground outside the property. An unsuccessful attempt was made to compel Mr B to come outside by banging on the flat’s door and window. However, the group attracted the attention of the victim of the assault, another neighbour.
Following an initial verbal altercation, the victim was attacked on the porch of his flat. There he was hit approximately three times in the head and body. He attempted to retreat into his flat but was unable to close and lock the door which was eventually kicked down by a co-offender. Inside his flat the victim was struck a number of times on the head and on the upper part of his body, causing him to lose consciousness. The beating continued after he lost consciousness and was unable to defend himself. The victim was later found by the police in an unconscious state on the floor of his kitchen. He was admitted to hospital suffering from deep haemorrhaging to his brain, a broken arm, a fractured cheekbone, a fractured skull, multiple lacerations and severe bruising over his back, head and face.
Mr Tomlinson pleaded guilty on arraignment to the charge of wounding with intent to cause grievous bodily harm. He was subsequently sentenced to five years imprisonment. The remaining four pleaded not guilty and went to trial. The central issue at trial was of identification of the assailants. The jury returned guilty verdicts in respect of the two appellants and a fourth co-offender, Mr Pousini. Another accused, Mr Siotonu, was acquitted.

Conviction: Tupou

In support of Mr Tupou’s appeal against conviction Mr Iosefa first submitted that the Judge misdirected the jury on a central element of the defence case relating to his client’s participation. The relevant direction was in response to the defence counsel’s suggestion that Mr Tupou could not be placed near the victim’s door because he was banging on Mr B/Ms M’s door at the time of the attack. The Judge said:
The difficulty with that contention is that it is in direct conflict with Mr Tupou’s own statement to Detective Corkin, from which he has not resiled. That is because in that statement there is no suggestion at all that, at the time when the attack on [the victim] commenced, Mr Tupou was anywhere else, as it might be put, other than in the driveway area.

It was submitted that Mr Tupou’s statement that he watched the assault from the driveway was in fact consistent with, and not contrary to, the defence proposition that he was outside Ms M’s flat when the assault on the victim commenced. We can see nothing in this argument given that it was in the Judge’s discretion to point out to the jury that the proposition put was not supported by the evidence, there being no evidence placing Mr Tupou at Ms M’s back door. Indeed the Judge could have gone on to say that if Mr Tupou was where in his statement he claimed to have been he could not have seen matters he described in his statement. Further, Ms M gave evidence that the banging she heard was more likely to have come from the victim’s flat.

In a related submission Mr Iosefa claimed that the Judge failed to adequately put the defence case to the jury in certain respects. Counsel was particularly critical of the Judge’s failure, in summarising the defence case, to refer to the defence proposition that Mr Tupou had been wearing a backpack and that no witness had seen a backpack on those near the victim’s doorway. We cannot agree. The Judge had earlier put that proposition and summarised the evidence in relation to it, which was at best inconclusive. Mr Iosefa submitted that the defence case was too economically summarised by the Judge. It was submitted that in addition to the absence of evidence of any assailant carrying a backpack, Mr Tupou’s defence relied on the fact that his reported aggressive statement of intent was directed to the occupant of the adjoining flat (Mr B) not the person who was subjected to a quite separate and unconnected attack with which his statement could not be linked. In addition he explained the presence of the actual victim’s blood on his clothing as possibly resulting from contacts when he tried to pull the actual attacker away.
There was no real foundation in the evidence for the two discrete incidents contention. Mr Tupou had not witnessed the earlier confrontation with Mr B. Neither he nor his co-offenders apart from Mr Tomlinson knew who they were going after. The beating of the unfortunate innocent victim who came on the scene cannot credibly be construed as a separately motivated event.
In these circumstances, after separately dealing with the backpack evidence, the summary of the defence that the evidence did not show Mr Tupou was at the victim’s flat when the assault commenced, added to by specific reference to the explanation for the blood on his jeans and footwear, was adequate.
We are not persuaded there is any miscarriage of justice on this ground.
It was further alleged that the Judge usurped the jury function by adversely commenting on elements of Mr Tupou’s defence. We are satisfied that Mr Iosefa’s criticisms are without substance. In his summing up the Judge undoubtedly expressed some of his own views of the evidence. However, as Crown counsel correctly pointed out, that must be considered against the general directions the Judge gave the jury which included a clear direction that they were the sole judges of the facts and that any of his own views about the facts of the case were “totally irrelevant”. It has been repeatedly held that provided the jury is clearly directed that they are the judges of fact and are free to disregard his or her views on the facts, and the comment is overall fairly presented, the trial judge is fully entitled to give his or her opinion on a question of fact to the jury (see, for example, R v Honey [1973] 1 NZLR 725, per Cooke P at 138).

Conviction: Duffy

Mr Duffy’s appeal against conviction is some two and half months out of time. He therefore applies for leave to appeal out of time. Leave is not opposed by the Crown.
In support of Mr Duffy’s appeal against conviction Mrs Aickin’s primary written submission was that the verdict was unreasonable and not supported by the evidence. The sole issue raised by counsel under this heading was the sufficiency of the evidence against her client. The evidence came from four sources:
(a)The victim;
(b)The occupant of Flat [Y], [X] Street, Ms N;
(c)A neighbour, Ms R
(d)Mr B’s partner, Ms M.
The victim said that he did not know any of his attackers and was uncertain of his ability to recognise them if he saw them again. He said in evidence that since the attack he met one of them in the supermarket when he came up to him, apologised and asked how he was getting along. That person gave his name as Mr Siotonu. When asked by counsel whether he could identify any of his attackers in court the victim made a dock identification of Mr Duffy. That was uncontested.
Ms N also made a dock identification of Mr Duffy as one of the four persons that had visited her flat with Mr Tomlinson immediately prior to the attack and there discussed their plan to attack Mr B. She identified him by his first name but admitted in cross-examination that she did not know him prior to that visit. After being given leave to refresh her memory from her statement made to the police the day after the attack she described him as wearing a blue t-shirt and dark blue pants.
Ms R gave evidence that she saw part of the attack out of her kitchen window which looks out towards the victim’s flat. Although she was unable to give a detailed description of any of the offenders she said that she saw about five males at the victim’s doorstep.
The neighbour, Miss M, gave evidence that three male figures ran past her window. She described one of them as having a blue top on.
This was not really an identification case at all. There was no challenge to the evidence of Ms N that Mr Duffy was present at her flat when the proposal to take action against Mr B was discussed. The real issue was whether Mr Duffy was a party to what subsequently occurred. In that respect the dock identification by the victim was probative, but it was but one element in the case. The Judge could hardly have been more emphatic in directing the jury on the need for caution in relation to that evidence.
The jury seemingly were not convinced that the co-accused they found not guilty had not disassociated himself from the attack. They were entitled to infer from the evidence of Mr Duffy’s participation in the preliminary discussion, the clearly stated intention, the short time between that and the violence, the evidence of the number at least encouraging by their presence when the victim was being struck, that Mr Duffy was a party. We do not accept there was insufficient evidence upon which a reasonable jury could convict Mr Duffy.
The submission emphasised in the course of oral argument related to various aspects of the summing up. Although Mr Duffy did not make a statement to the police he was named in the course of statements given by his co-accused. Counsel argued that the Judge did not emphasise sufficiently to the jury the need to disregard the contents of the statements of the co-accused when considering the case against Mr Duffy. We do not agree that this was so. The Judge’s summing up was very clear on this point. Employing a box analogy for the consideration of the evidence against each of the four accused the Judge said:
However, once you have gone through that process of putting the general evidence in all four boxes, although some of the evidence may apply to only two or three of the boxes, you then have to consider the statements on an individual basis. In other words, Mr Pousini’s statement goes only in his box, Mr Siotonu’s statement goes only in his box, and Mr Tupou’s statements go only in his box.
Although this principle is particularly relevant in the context of Mr Duffy’s position, because he is mentioned in many of those statements, it is in fact of general application and applies to all four accused.
What you are entitled to do is take into account what an accused says in a statement about another person only as relevant background context to what he says about himself.
The Judge then proceeded to give an example of how this might be done in relation to a statement by Mr Pousini that named Mr Duffy as one of the attackers. The Judge directed that his statement was “totally irrelevant and inadmissible as it relates to Mr Duffy, and you must disregard and ignore it entirely in that context, as with many of the other similar responses in both that statement and the other statements”. It is hard to imagine how the Judge might have directed the jury any more clearly. Nevertheless, Mrs Aickin submitted that by selecting the particular example, the Judge effectively emphasised the inadmissible evidence to the prejudice of Mr Duffy. We simply reject that. It rests on the premise that we must assume juries do not act as directed. We are not prepared to do that.
Next counsel submitted that the Judge’s direction on the appropriate use of inferences in relation to the identification evidence was inadequate. We are satisfied that there is nothing in this point. The Judge clearly directed that the only inferences that the jury were entitled to draw were those that followed logically from proved facts. Later in his summing up he related this directly to the identification evidence given by Ms N and Ms R. This ground must fail.
Finally counsel generally attacked the presentation of the defence case for Mr Duffy in the Judge’s summing up. Although she suggested that the case for Mr Duffy was treated in a disparate manner what counsel was really complaining about was that the Judge’s treatment of the case was not disparate enough. She submitted that each particular aspect of the evidence against Mr Duffy should have been more clearly distinguished as applicable, or not applicable as the case may be, to him. Again we cannot agree. We have reviewed the transcript of the Judge’s summing up and are satisfied that he was careful to separate out the evidence against each of the four accused in a fair and reasonable way. His summary of Mr Duffy’s defence in paragraphs 167-170 was quite adequate.

Conclusion on conviction appeals

We are satisfied that there was an evidential foundation for the convictions entered by the jury. We are further satisfied that there was no unfairness to either of the accused in the summing up. In the case of Mr Duffy leave to appeal against conviction is granted and the appeal is dismissed. In the case of Mr Tupou the appeal is dismissed.

Sentence appeals

In sentencing the appellants the Judge took as his reference point his earlier sentencing remarks in respect of Mr Tomlinson. He set out the aggravating features of the offending as being the pre-meditated nature of the attack, the use of weapons, the lack of provocation, the length of the attack, the fact that the attack was focused on the victim’s head and upper body, and the home invasion element. The Judge found himself guided, home invasion elements aside, by R v Hereora [1986] 2 NZLR 164. He assessed the case as being one “within the upper end of the second category of offences”, meaning to the higher end of the 5-8 year scale. That was refined, after taking into account the home invasion element, to a starting point of eight years.
For Mr Tupou the Judge added another year to that starting point to reflect additional aggravating factors. Namely, his previous record of violent offending, the fact that the offending occurred while he was on parole. The Judge rejected counsel’s attempt to limit Mr Tupou’s role in the offending as inconsistent with the evidence. Particularly:
(i)Ms N’s evidence that while in her flat Mr Tupou referred to “smash[ing] the neighbour over”.
(ii)ESR evidence of blood spots and smears on Mr Tupou’s footwear and jeans
(iii)Unchallenged evidence that Mr Tupou was seen by a police dog handler near the scene carrying a piece of wood.

The Judge sentenced him to nine years imprisonment.

In sentencing Mr Duffy the Judge acknowledged that it was difficult to assess the precise extent of his involvement in the offending. He expressly recorded that for the purposes of sentencing he had to ignore the inadmissible evidence in the statements made by Mr Duffy’s co-accused. However, he concluded that at the very least he was present during the planning of the offence and a party to its commission. Taking a starting point of eight years the Judge then deducted two years to reflect the possibility of his less significant involvement in the attack, his young age, and his lack of any previous record. He was accordingly sentenced to six years imprisonment.
While accepting the sentencing Judge’s categorisation of the offending and his starting point of eight years, Mr Iosefa submitted that the ultimate sentence was manifestly excessive in the circumstances of the offending. He disputed that Mr Tupou’s situation involved (employing the words defining the third category of Hereora) “unusually grave aggravating features” so as to justify a sentence beyond eight years imprisonment. Secondly, he submitted that Mr Tupou’s sentence was disparate to that of his co-offenders, although this submission turned out to be a challenge to the evidential inferences drawn by the sentencing Judge as to the extent of Mr Tupou’s involvement in the offending.
We are not persuaded that we should interfere with the sentence. What Mr Iosefa’s submissions overlook is the home invasion element of the offending to which the Judge was required to give discrete and concrete recognition: R v Palmer [2000] 1 NZLR 546. The guidelines in Hereora pre-dated the home invasion legislation which increased the overall maximum penalty beyond what was contemplated in that case. We see no difficulty in adding a further year to that starting point to reflect the additional aggravating features of Mr Tupou’s own circumstances. Just 21 years old at the time of the offence he has a very bad record and was then on parole after serving a prison sentence for injuring with intent.
On behalf of Mr Duffy, Mrs Aickin submitted that the starting point adopted was excessive in light of the fact that there was no evidence of any active participation in the attack on his part. In a related submission, counsel argued that the two year deduction from that starting point was insufficient to reflect Mr Duffy’s limited role, his youth, and his lack of previous convictions.
We consider that it is unreal to make any fine distinctions as to the precise part which co-offenders with a common purpose may have played. The attack involved mindless violence in a group situation, where weapons were used on a solitary victim who was unknown to the offenders. It was pre-meditated, albeit not in relation to the ultimate victim. The culpability of individuals calls for assessment in that light particularly where there was no evidence that Mr Duffy had any lesser degree of involvement. As this Court stated in R v Vercoe (1996) 14 CRNZ 383, 388:
Group activities such as this are to be approached in a common sense way. At times particular instigators will be identified and those having greater or less involvement can be singled out. But it is to be kept in mind that the very nature of the offending is by a group, each encouraging the others, whether it is euphemistically described as peer pressure or is seen for what it is as pack hysteria.
In that light we consider the two year deduction accorded to Mr Duffy to be generous in the circumstances.

Both appeals against sentence are therefore also dismissed.

Solicitors

Iosefa & Co, Christchurch, for Tupou

Crown Law Office, Wellington

[2002] NZCA 398

30 July 2002