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R v Turaki

R v Turaki

Case [2009] NZCA 310 20 July 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA635/2008
[2009] NZCA 310
THE QUEEN
v
VAENGA TURAKI
Hearing:6 May 2009

Court:Glazebrook, Potter and Asher JJ
Counsel:K A N Trotter for Appellant

J M Jelas for Crown

Judgment:20 July 2009 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Table of Contents
Para No

A brawl outside a party  [1]
Factual background  [4]
Submissions on behalf of Mr Turaki  [19]
The Crown’s submissions  [26]

The evidence identifying Mr Turaki as the attacker  [32]
Identification direction  [41]
The law[42]
Directions given in this case  [48]
Issues[52]
Was there visual identification of Mr Turaki by Ms Taie,
Ms Graham and Mrs Ulukita?  [54]
Is a s 126 warning required for recognition evidence?  [62]
Did the case depend wholly or substantially on evidence
of visual identification?  [65]
Did any failure to give a full s 126 warning cause a
miscarriage of justice?  [75]

Summary – identification directions  [83]
Visual identification evidence  [84]
Recognition evidence  [86]
Full s 126 warning required  [87]
Contents of s 126 warning  [90]
Observation evidence  [92]
Resemblance evidence  [94]

Result  [95]
Appendix
A brawl outside a party
[1]       Mr Turaki was found guilty, after a trial before Judge Barbara Morris and a jury, of one count of causing grievous bodily harm with intent to cause such harm. The charge arose after a brawl outside a party where the victim, Mr Fonoti, was kicked and hit while he was on the ground. As a result, he suffered a serious brain injury caused by blunt trauma. His rehabilitation has been lengthy.
[2]       Mr Turaki appeals against his conviction on the basis that the evidence identifying him as the principal attacker was inadequate to enable a reasonable jury to consider his guilt established beyond reasonable doubt. He also submits that the Judge failed to give a proper direction on the identification evidence.
[3]       We attach as an appendix to this judgment a chart summarising the evidence placing Mr Turaki at the scene. This is based on a chart helpfully supplied by Mr Trotter, counsel for Mr Turaki. Before assessing that evidence, however, we set out the factual background in more detail and summarise the parties’ submissions.
Factual background
[4]       On Saturday 27 January 2007, a small group of friends gathered at the home of Ms Alison Graham to celebrate the birthday of a work colleague. Ms Graham lives in a second storey flat above shops in Auckland.
[5]       Mr Jerome Packer was a guest at the party. He left at approximately 1.00 am to get cigarettes from his van which was parked a short distance down the road. Along the road from his van he saw a group of six to seven men. He recognised Mr Turaki, whom he had known from secondary school, in the group. The conversation between Mr Packer and Mr Turaki was described in evidence as follows:
Q.Did you speak to him?
A.Yes I did.
Q.And…

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 Turaki

Details

AGLC: R v Turaki [2009] NZCA 310
Case: [2009] NZCA 310
Decision Date: 20 July 2009

CaseChat Overview and Summary

The case of R v Turaki involved an appeal against a conviction for causing grievous bodily harm with intent. The appellant, Mr Turaki, was found guilty following a brawl outside a party where the victim, Mr Fonoti, was assaulted. Mr Turaki contended that the evidence identifying him as the attacker was inadequate and that the trial judge failed to properly direct the jury on the identification evidence. The appeal was dismissed by the Court of Appeal of New Zealand.

The court examined whether there was visual identification of Mr Turaki by the witnesses, and if a warning under section 126 of the Evidence Act 2006 was required for recognition evidence. The court concluded that the evidence of Mrs Ulukita, Ms Taie, and Ms Graham was description evidence and not direct visual identification of Mr Turaki. Therefore, no identification warning was required with regard to their evidence. However, the evidence of Mr and Mrs Packer could be characterised as recognition evidence, which did require a full s 126 warning.

The court further examined whether the case depended wholly or substantially on visual identification evidence. The court found that the case against Mr Turaki did not rest on the recognition evidence of Mr and Mrs Packer, but instead on the observation evidence of Mrs Ulukita. Therefore, section 126 did not apply, and the failure of the trial judge to give a full s 126 warning did not amount to an error of law.

Finally, the court considered whether the failure to give a full s 126 warning caused a miscarriage of justice. The court held that even if such a warning was required, it would not have changed the result of the case given the quality of the identification evidence. The appeal was dismissed, and the conviction was upheld.

Orders