R v Vaituliao
[2007] NZCA 525
•21 November 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA272/07
CA344/07
CA347/07
[2007] NZCA 525THE QUEEN
v
STEVE DAVID VAITULIAO
MARK TALIAULI
JOSEPH JUNIOR VAITULIAOHearing:7 November 2007
Court:Ellen France, John Hansen and Heath JJ
Counsel:J J Corby for Steve Vaituliao
A Speed for Mark Taliauli
G N Bradford for Joseph Vaituliao
K Raftery for Crown
Judgment:21 November 2007 at 4 pm
JUDGMENT OF THE COURT
A Steve David Vaituliao’s appeal against conviction is dismissed.
B Mark Taliauli’s appeals against conviction and sentence are dismissed.
CJoseph Junior Vaituliao’s application for an extension of time to appeal is granted but his appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Table of Contents
Para No.
Introduction [1]
Grounds of appeal [5]
An outline of the facts [12]
Steve Vaituliao’s appeal [20]
Mark Taliauli’s conviction appeal [27]
Introductory comments [27]
The evidence of involvement [31]
Identification issues [45]
Parties and withdrawal [53]
Joseph Vaituliao’s conviction appeal [63]Some comments on other issues raised by the conviction appeals [67]
Admissibility issues [67]
Criticisms of Crown counsel [71]
Crown case: Principals/parties [73]
Mark Taliauli’s and Joseph Vaituliao’s sentence appeals [75]
Conclusion [91]
Introduction
[1] Steve Vaituliao, Mark Taliauli and Joseph Vaituliao were each charged with one count of causing Michael Watene grievous bodily harm with intent to do so and one of wounding Manya Watene with intent to injure. The charges arose out of an incident that occurred in the early hours of 13 August 2005 in West Auckland. Mr Watene suffered one or more skull fractures as a result of the offending. Ms Watene (his sister) received lacerations to the back of her head and above her left eye.
[2] The accused were (with Aeefua Junior Tapuni) tried in the District Court at Auckland in late February and early March 2007 before Judge Robinson and a jury. A fifth person, Ulufaa Asosa-Pauwaa, was also charged but he died in a motor vehicle accident before trial.
[3] Mr Tapuni entered pleas of guilty to both charges during the course of the trial. The remaining accused were found guilty by the jury on both charges that each faced. On 5 June 2007 the four prisoners were sentenced. The effective sentences imposed were:
(a) Steve Vaituliao - five years six months imprisonment;
(b) Mark Taliauli – five years imprisonment;
(c) Joseph Vaituliao – six years imprisonment; and
(d) Aeefua Tapuni – five years imprisonment.
The sentence imposed upon Mark Taliauli was concurrent with sentences on unrelated charges on which he had previously been convicted. Those additional sentences are irrelevant for the purpose of his appeal.
[4] Steve Vaituliao appeals against his conviction on both counts. Mark Taliauli appeals against his convictions and sentence. Joseph Vaituliao seeks an extension of time to appeal against his convictions and sentence.
Grounds of appeal
[5] We take our summaries of the grounds of appeal and the Crown’s response from the helpful submissions of Mr Raftery, for the Crown.
[6] The grounds of appeal are:
(a) Steve Vaituliao submits that:
(i)The Judge failed to give an adequate direction regarding identification evidence;
(ii)He did not share a common intention with the other members of the appellants’ group;
(iii) He was not part of the group that attacked the victims and was not identified as being there;
(iv)There is no credible evidence that he hit anyone.
(b) Joseph Vaituliao submits that:
(i)The Judge failed to give an adequate direction regarding identification evidence;
(ii)The Judge gave a complicated and unhelpful answer to the jury’s question about whether it is possible for someone to withdraw from his or her initial role as a party to offending;
(iii)The Crown opened on the basis that he was a party but closed on the basis that he was either a party or a principal;
(iv)The Crown when closing made inappropriate remarks about defence counsel; and
(v)The sentence imposed on him was manifestly excessive as it was unclear whether the jury convicted him as a principal or a party.
(c) Mark Taliauli submits that:
(i)The Judge inadequately directed the jury on identification evidence;
(ii)The Judge misdirected the jury on the law of parties;
(iii)The Judge misdirected the jury on the law relating to withdrawal as a party;
(iv)The Judge’s repetition in summing up of what Steve Vaituliao said in his statement regarding the whereabouts of Terry Parai was inadmissible as evidence against Mark Taliauli and should not have been repeated;
(v)The Judge repeatedly referred to the five people who went up the road, whereas in fact there was evidence that there may have been six;
(vi) The Judge should have warned the jury about the potential unreliability of Mohammed Khan’s evidence; and
(vii)The sentence imposed on him was manifestly excessive.
[7] The Crown responds that:
(a)The Judge adequately warned the jury about the potential shortfalls of identification evidence;
(b)The appellants can be linked to the attack via evidence other than identification evidence;
(c)The Judge correctly directed the jury on the law of parties and what is required of an accused before he can be considered to have withdrawn from the offending;
(d) In relation to Steve Vaituliao:
(i)There is ample evidence that he was part of the group that attacked the victims and that he hit both victims;
(e) In relation to Joseph Vaituliao:
(i)The Crown’s position at all times was that four members of the appellants’ group struck the victims, and all five members of the appellants’ group formed the common intention to cause grievous bodily harm to, and injure, the victims;
(ii)The Crown’s comments about fanciful explanations were simply a warning to the jury to scrutinise any alternative explanation of the evidence offered by defence counsel, and were not intended to be disparaging towards defence counsel personally.
(f) In relation to Mark Taliauli:
(i)The Judge adequately remedied any potential prejudice caused by his original remarks about what Steve Vaituliao said in his interview about the whereabouts of Terry Parai;
(ii)The Judge informed the jury that there was conflicting evidence about the whereabouts of Terry Parai and that this meant there may have been six people in the appellants’ group, not five;
(iii)The Judge adequately warned the jury about the alleged inconsistencies in Mohammed Khan’s evidence; and
(g)In relation to Joseph Vaituliao and Mark Taliauli, the sentences imposed were within the range available to the sentencing Judge.
[8] For reasons which will become apparent, Steve Vaituliao’s appeal fails on the narrow ground that, on any view, no miscarriage of justice could have arisen from the jury’s guilty verdicts.
[9] So far as Joseph Vaituliao is concerned, the only grounds of appeal against conviction that were pressed by Mr Bradford, on his behalf, were the identification and withdrawal points set out in [6](b)(i) and [6](b)(ii) above.
[10] Mark Taliauli’s appeal against conviction focuses on identification. The Crown case was that Mr Taliauli was one of only five participants in the attack upon Mr Watene and his sister. There is evidence to suggest that a sixth person, Terry Parai might have been present in the vicinity of the assaults at the time they were carried out. The question is whether the existence of that sixth person means that the Crown has failed to prove beyond reasonable doubt that Mr Taliauli was part of the group that committed the assaults. An alternative point is whether the Crown has excluded the reasonable possibility that, although initially part of the group, Mark Taliauli subsequently withdrew.
[11] In those circumstances, we analyse only those grounds which were pressed. We make some brief comments in respect of other issues raised.
An outline of the facts
[12] At about 1.00am on 13 August 2005, Mr Watene and his sister (with some associates) were driving in West Auckland, in the Henderson area, in separate vehicles. They were looking for trouble. They came across a group of youths standing at the corner of Edwards Avenue and Rathgar Road. Those youths included Steve Vaituliao and Mark Taliauli. The two groups were unknown to each other.
[13] Several members of the Watene group obtained weapons from their vehicles. Those weapons included a cricket bat and cricket wickets. They advanced on the Vaituliao group, who retreated down Edwards Avenue to a residence at 9 Edwards Avenue, at which some friends were partying. The Watene group appear, at that stage, to have gone off in search of reinforcements.
[14] Meanwhile, two female associates of the Vaituliao group drove along Rathgar Road in an attempt to locate the Watene group. Near the Rathgar Road shops, associates of Mr Watene ran out to their car. The windscreen and rear passenger window of the car were smashed. The two females returned to the Edwards Avenue property and spoke to Steve Vaituliao. As a result of that conversation five or six people (we discuss the issues of numbers later) went back up Rathgar Road to seek out the Watenes. A more detailed account of the evidence that puts the three appellants within that group is set out in [33] – [42] below.
[15] A plan of the area produced in evidence shows that the distance between the Rathgar Road/Edwards Avenue intersection and another intersection at the corner of Rathgar Road and Maurice Borich Place is about three times the distance from the Edwards Avenue residence to Rathgar Road.
[16] The two groups clashed at the intersection of Rathgar Road and Maurice Borich Place. A vehicle carrying Michael Watene was moving away from the intersection. Mr Watene fell from the vehicle onto the ground. Following his fall to the ground a melee ensued during which Mr Watene was seriously injured as a result of blows (inflicted both manually and with weapons) to the head.
[17] As members of the Vaituliao group continued to attack Mr Watene, Mr Watene’s sister ran to his aid, lying over his unconscious body in an attempt to protect him.
[18] Ms Watene was pulled away from her brother to allow the assault upon him to continue. She was punched about the head and struck in the back of the head with a blunt instrument.
[19] Steve Vaituliao, Joseph Vaituliao, Mark Taliauli, Aeefua Tapuni and Ulufaa Asosa-Pauwaa were alleged to be the five members of the group who attacked the Watenes. By the close of the Crown case, Mr Taliauli was alleged to have acted as a “lookout”.
Steve Vaituliao’s appeal
[20] Steve Vaituliao appeals only against conviction. There is a major impediment to the success of his appeal, which means we can deal with it briefly.
[21] At trial, Steve Vaituliao’s defence was that he was not one of the people present when the beating was administered. However, on sentence, he provided a letter to the Court in order to express remorse for his actions. For that remorse, he received a credit on sentence.
[22] In his letter of 7 May 2007, Steve Vaituliao, writing to the Watene family, said:
… I am writing to apologize for the incident in 2005 that caused serious injuries to Michael and Manya Watene. I would like to sincerely apologize for being an accomplice to the incident, I regret that I was not able to stop or take control of the situation as I was too scared to interfere and everything was unclear and moving too fast. …
[23] That letter is admissible against Steve Vaituliao at any retrial, were an appeal against conviction to be successful. His letter advances a position inconsistent with his defence at trial, namely that he was not a member of the group that undertook the assaults.
[24] For those reasons, on any view, there can be no miscarriage of justice resulting from any defect in the trial, so far as Steve Vaituliao is concerned. His appeal against conviction must be dismissed.
[25] Notwithstanding that fundamental impediment, we are of the view that the evidence established beyond reasonable doubt that Steve Vaituliao was a party to the assaults that gave rise to his convictions. Our reasons for forming that view appear from our summary of the evidence at [33] – [42] below.
[26] Although, in this case, we have no doubt that the post-trial admission of guilt was unequivocal and means that no miscarriage of justice could have occurred, we acknowledge that, in some cases, the same result may not follow. The relationship to an appeal outcome of admissions in pre-sentence reports, medical reports and similar materials will vary, according to the circumstances and the grounds of appeal. Each case will depend on its own facts.
Mark Taliauli’s conviction appeal
Introductory comments
[27] Mr Speed, on behalf of Mr Taliauli, submitted that there was no reliable evidence that he was present and that the Crown had not excluded the reasonable possibility that Mark Taliauli was not one of the five assailants said to have been involved in the assaults. Further, he submitted that the trial Judge failed adequately to warn the jury of the special need for caution before acting on visual identification evidence: s 344D Crimes Act 1961 (the Act). He submitted that the warning was required because a witness, Mr Khan, had given unreliable identification evidence. Mr Khan was a neighbour who had observed the events from his house and did not know any of the accused.
[28] However, Mr Raftery submitted that this was not a case that engaged the need for such a warning because it did not depend, “wholly or substantially on the correctness of one or more visual identifications” of the accused: see s 344D(1). Rather, Mr Raftery submitted that the case was truly one of inference and circumstantial evidence.
[29] Mr Raftery’s position was that the evidence excluded the reasonable possibility of any more than five people going to the intersection of Rathgar Road and Maurice Borich Place with an intent to assault; namely the four people charged and the late Mr Asosa-Pauwaa. Mr Raftery added that Mr Khan did not identify Mr Taliauli specifically. Instead, Mr Khan indicated the number of people whom he saw present, without being able to identify any of them.
[30] While there is some evidence from which a jury might have inferred that there were six people, including Terry Parai, who went to the intersection of Rathgar Road and Maurice Borich Place to assault the Watenes, that will not assist Mark Taliauli if it were proved that he went after the Watenes with others whom he knew were armed with the common purpose of causing harm to the Watene group.
The evidence of involvement
[31] We summarise below the evidence to which Judge Robinson referred, in summing up the case to the jury, to support the Crown’s contention that each of the accused were present when the assaults began:
(a)First, there was evidence that the three accused were part of a group which had been involved in the confrontations with Michael Watene and others associated with him earlier in the evening.
(b)Second, the three accused were seen, by people who knew them, at the corner of Edwards Avenue and Rathgar Road, just before the incident in which Michael and Manya Watene were injured.
(c)Third, the recognition witnesses described the three accused as being angry and saying they were going to “smash” the Watenes.
(d)Fourth, some witnesses referred to one of the offenders wearing a red chequered shirt or a red shirt. Steve Vaituliao was wearing a red chequered shirt.
(e)Fifth, Joseph Vaituliao admitted to a police officer that he hit someone on the head with a piece of wood, but said he was not involved in any kicking.
(f)Sixth, Manya Watene described seeing four pairs of legs. Another witness, Mr Khan, observed four people standing over the Watenes.
[32] It is evidence of those who knew the three accused and saw them at the party at 9 Edwards Avenue that assumes particular significance.
[33] Alisa Fainuu was at the party. She and a friend (Virginia Pullan) were in the car that had been smashed by the Watene group. She gave evidence that the front windscreen and one of the side windows were broken.
[34] When she returned to 9 Edwards Avenue, Steve Vaituliao came up to her and asked what had happened. She said “the five of them went up to Rathgar Road”. She also said she saw those five when they were coming back. She did not recall Terry Parai going up to Rathgar Road with the others. She believed that the five people who went up the road were Steve Vaituliao, Mark Taliauli, Joseph Vaituliao, Aeefua Tapuni and Ulufaa Asosa-Pauwaa.
[35] Ms Fainuu also recalled that, before the five boys went up towards Rathgar Road, one of the five said that they were going “to go smash them”. She added that the group appeared angry at that time. They had weapons with them and some bricks.
[36] Ms Fainuu said that she saw the five coming back about five minutes later. The first person to come back was Mark Taliauli, followed by Joseph Vaituliao and Aeefua Tapuni. Steve Vaituliao and Ulufaa Asosa-Pauwaa were last back. All were running. They had no weapons with them. She saw no others run back down the road and recalls one of them saying that they had “fucked somebody up”.
[37] Metua Samuel, Terry Parai’s girlfriend, spoke of seeing all three accused at the party. She had been in the garage with Terry Parai at about the time of the confrontation between the Watene and Vaituliao groups. When they left the garage, Steve Vaituliao called for Terry Parai. But, he stayed in the garage with Ms Samuel. However, Steve Vaituliao came back and got Terry Parai.
[38] While Ms Samuel’s evidence is somewhat unclear as to timing, we are satisfied that its thrust is sufficiently similar to the evidence of Ms Fainuu for reliance to be placed on it. Ms Samuel recalls standing out on the street in Edwards Avenue with Steve’s mother. She spoke of seeing Steve Vaituliao, Joseph Vaituliao, Aeefua Tapuni, Ulufaa Asosa-Pauwaa and Terry Parai at the corner of Edwards Avenue and Rathgar Road. She said they were “just standing there talking”.
[39] Ms Samuel went back inside the house before any of the accused went in the vicinity of the Rathgar Road/Maurice Borich Place intersection. However, she was back out on the street when she saw four people running back towards the house, with Terry Parai following behind. She went into the garage with those five people. They conveyed to her that they had been in a fight, that they had beaten somebody up and that there were three guys standing off with “bats and stuff and saying they wanted to take the boys on”. She added that they “just said that they gave somebody a hiding”.
[40] At some point (it is difficult to know precisely when) Terry Parai came back into the garage with a hammer. It is unclear when he got the hammer.
[41] Both Ms Samuel and Ms Fainuu were in a position to recognise the five people said to have been involved.
[42] Mr Khan gave evidence of seeing two persons being beaten at the intersection of Rathgar Road and Maurice Borich Place. He was unable to identify any of the people present but was able to say that five people appeared to have been present at the scene, at least four of whom were actively involved in hitting Mr Watene and his sister with panels of wood and kicking them while they lay prone.
[43] From that evidence (all of which is independent of those who were subjected to the assault), it is clear that there was evidence on which a jury was entitled to act to infer that the five (excluding Mr Parai) were armed and going towards the scene of the assault shortly after they discovered that the windows of Ms Fainuu’s car had been broken by the Watene group.
[44] It is possible that Mr Parai was with them; it is equally possible that he was not. Whatever view is taken, Mr Taliauli was among those carrying arms who went towards the intersection where the beating occurred.
Identification issues
[45] As at the time of the trial, s 344D of the Act governed the type of warning to be given by a Judge when identification evidence is called at a jury trial.
[46] Section 344D(1) required a trial Judge to warn the jury of the “special need for caution before finding the accused guilty in reliance on the correctness of any … identification” in any jury trial where the case against an accused depended “wholly or substantially on the correctness of one or more visual identifications” of the accused.
[47] Section 344D(2) did not require the warning to be in any particular form. However, the trial Judge was required to include the reason for the warning, to alert the jury to the possibility that a mistaken witness may be convincing and to advert to the possibility, where there was more than one identification witness, that all of them may be mistaken.
[48] Judge Robinson made it plain to the jury that there was no positive identification of any of the alleged offenders, in the sense that nobody identified them when they were standing over Michael and Manya Watene when the beating occurred. Rather, the Judge directed the jury that the issue was one of inference: could the jury, from proved facts, infer that the accused were involved in the assault?
[49] The Judge reminded the jury that the offences occurred in circumstances which made identification very difficult: there were not many people in the vicinity, some were roused and some happened to be there and hear what was going on. But, those who were there were looking at people whom they did not know from a distance, in indifferent light.
[50] It is against that background that the identification issue falls to be considered. Was the Judge’s identification direction adequate?
[51] We agree with Mr Raftery that this was not an identification case of the type that engages s 344D. The evidence that puts Mr Taliauli (and the Vaituliao brothers) at the scene with weapons is that of Ms Samuel and Ms Fainuu. The evidence of Mr Khan that at least five people were involved was additional evidence on which the jury was entitled to act.
[52] Because the Crown case did not rely upon identification evidence from Mr Khan but on the inferences to be drawn, in part, from the recognition evidence of Ms Samuel and Ms Fainuu, an identification warning in terms of s 344D(1) was not required. It was not required because the Crown case did not depend “wholly or substantially on the correctness of one or more visual identifications” of an accused.
Parties and withdrawal
[53] The next issue on Mark Taliauli’s appeal is whether he withdrew. We are unclear to what extent this issue was raised at trial. In any event, it would have been inconsistent for Mr Taliauli to have run a defence of withdrawal from the group attacking the Watenes while, at the same time, asserting he was not present. The withdrawal issue assumes importance on appeal because the jury asked a question, during deliberations, about the circumstances in which an accused who had formed an intention to be part of a common purpose but then changed his mind, would have a defence.
[54] Before addressing the question of withdrawal, it is necessary to consider the legal basis on which the three accused were tried as parties.
[55] Section 66(2) of the Act provides:
66 Parties to offences
…
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[56] Judge Robinson directed the jury on the law relating to parties as follows:
To find the accused guilty as parties and not as principal offenders, the Crown must establish a number of things: first of all, the Crown must establish beyond reasonable doubt that the accused and each of them formed a common intention, in this case to assault members of the group who had confronted them earlier in the evening. Are you satisfied beyond reasonable doubt that they were part of a group that formed a common intention to smash the others, to assault the others. If you are satisfied beyond reasonable doubt that that is the situation, then you must be satisfied that in the prosecution of that common intention Michael Watene and his sister [Manya] were assaulted by the group and, in the case of Michael, suffered grievous bodily harm, and in the case of [Manya] was wounded with intent to injure.
Finally, you have to be satisfied beyond reasonable doubt that the commission of that type of assault was recognised by the accused as being a probable consequence of the prosecution of that common purpose, in the sense that each knew that there was a real or substantial risk that such serious assaults would occur as part and parcel of the common purpose.
[57] The Judge’s direction complied with the requirements of s 66(2). In the case of Mr Taliauli, to the extent that the Crown case relied upon him being identified as the “lookout”, Judge Robinson emphasised that the Crown had to prove that he was part of a group determined to exact revenge for what had happened earlier and that he acted as a “lookout” to enable others in the group to carry out that common purpose.
[58] The Judge also told the jury that the Crown had to prove that Mr Taliauli knew that the injuries suffered by Michael and Manya Watene were probable consequences of the common intent for revenge being carried out. The need to prove common intention to prosecute the unlawful purpose of an assault with intent to do grievous bodily harm was sheeted home to the jury.
[59] In the absence of any withdrawal from the common purpose, we are satisfied that the evidence of Ms Samuel and Ms Fainuu was sufficient to enable the jury to conclude, beyond reasonable doubt, that all three accused were part of a common purpose of the type to which Judge Robinson referred in his summing up.
[60] We turn next to the “withdrawal” point. The Judge’s direction to the jury accorded with the current authorities as set out in R v Hartley [2007] 3 NZLR 299 (CA). Delivering the judgment of this Court in that case, Ellen France J said:
[68] This Court in R v Ngawaka (Court of Appeal, CA 111/04, 6 October 2004) at para [14] accepted the conditions for withdrawal in R v Pink [2001] 2 NZLR 860 at para [22]:
“· First, there must in fact be a notice of withdrawal, whether by words or actions.
· Secondly, that withdrawal must be unequivocal.
·Thirdly, that withdrawal must be communicated to the principal offenders. There is some debate as to whether the communication must be to all the principal offenders, but here all were told.
·Fourthly, the withdrawal may only be effected by taking all reasonable steps to undo the effect of the party’s previous actions.”
[61] In this case, “withdrawal” was only an issue if there were an evidential foundation for the proposition that Mr Taliauli was present at the time that the accused went to the place of the assault and withdrew from the common purpose before an assault was commenced.
[62] In the context of a street attack of this type, evidence (such as dropping any weapons and running quickly away from the scene before any blows were administered) would be required to provide an adequate evidential foundation. No such foundation exists. For that reason, this ground of appeal must fail.
Joseph Vaituliao’s conviction appeal
[63] Joseph Vaituliao sought an extension of time to appeal against conviction and sentence. We are satisfied that there is an explanation for a short delay. We grant the application and extend the time for the appeals to be brought.
[64] The only ground advanced by Mr Bradford in support of Joseph Vaituliao’s conviction appeal was that he was not involved in the attack or, alternatively, was the person about whom the jury raised the question of withdrawal.
[65] Given the evidence against Joseph Vaituliao from Ms Samuel and Ms Fainuu, to which we have already referred in the context of Mark Taliauli’s conviction appeal, Joseph Vaituliao’s appeal against conviction must fail on the same grounds.
[66] There was evidence on which the jury could act to find that he was part of the common purpose at the start. There was no evidential foundation for the proposition that he withdrew at any time.
Some comments on other issues raised by the conviction appeals
Admissibility issues
[67] Mark Taliauli complained that the Judge erred in repeating an aspect of what Steve Vaituliao said in a statement regarding the whereabouts of Mr Parai. This related to a comment made by Steve Vaituliao in his videotaped interview in which he indicated Mr Parai did not accompany him and his associates.
[68] This particular issue was raised by Mr Speed, for Mark Taliauli, after the Judge had summed up. Mr Speed made it clear that he considered Steve Vaituliao’s statement was inadmissible against his client and that the jury ought to be told that specifically, notwithstanding a clear direction given earlier by the Judge as to the need for the jury to take account only evidence admissible against a particular accused. In that part of his summing up Judge Robinson had said expressly that:
[T]he statement that Steve Vaituliao made to the police is, as you would understand it, evidence against him. But it is not evidence against Joseph Vaituliao or Mark Taliauli. So you cannot, when considering whether Mark Taliauli is guilty, take into account the statement made by Steve Vaituliao.
[69] Nevertheless, the Judge acceded to Mr Speed’s request for a further direction to be given, both to reinforce Mark Taliauli’s case and to highlight the particular evidential issues. After recalling the jury for a further direction, Judge Robinson said:
Madam Foreman and members of the jury, sorry to bring you back so soon but there are a couple of matters that counsel say I seem to have omitted or in one case have made a mistake on. The first is dealing with Mark Taliauli. It may not have been very clear but the defence from Mark Taliauli’s point of view is that there is no evidence to show that he was in any way involved in the assault or any way involved in these crimes. Mr Speed on behalf of Mark Taliauli, there’s no evidence that he was actually involved in the crime. That was the defence that was put up by Mr Speed, so you have to consider of course whether there is evidence to show that [inaudible] involved and looking at all the evidence and during the analysis it has been suggested to you but he’s made that statement. You cannot hold that against him, he’s not obliged to. He doesn’t have to prove anything. And I just want to emphasise that the onus remains on the Crown and that is of course quite properly advanced as a defence to this charge. In the course of my summing up to you with regard to the law concerning evidence against Mark Taliauli, I may have said or quoted to you what the Crown said to you about what Steve Vaituliao had told about Mark Taliauli being present. Of course, you recall earlier in my summing up to you I said you can’t use the statement of one accused against the other. That would be an example. You must not use the evidence of Steve Vaituliao’s statement in considering the case against Mark Taliauli. So please disregard that, it is not part of the evidence. Finally, there is reference to a man called Terry. There is some evidence that he wasn’t there, didn’t go up the road but there is some evidence that he was coming back from the road and that’s something you’ll need to bear in mind as well when considering the involvement of these three in a group of five and which you now have six or potential six. Thank you. (Our emphasis.)
[70] The Judge’s directions in summing up, taken in conjunction with his answer to the jury question, put the possible presence of Terry Parai squarely in issue. It also dealt adequately with the admissibility issue raised by Mr Speed.
Criticisms of Crown counsel
[71] Counsel for the three appellants complained that, in closing, Crown counsel suggested that the jury ought to be wary of defence counsel coming up with “fanciful and unrealistic explanations for the obvious”.
[72] The language employed was not that which we would expect from an experienced prosecutor because it had the potential to cast aspersions on counsel for the defence before they had closed. However, it was not, in our view, a comment that could have influenced the jury’s assessment of the case. We agree with Mr Raftery that the essence of the expression was to warn the jury to scrutinise carefully alternative explanations proffered on behalf of the accused.
Crown case: Principals/parties
[73] Mr Bradford advanced the submission that it was wrong for the Crown to close on the basis that Joseph Vaituliao was either a principal or a party when it had opened on the basis that he was a party.
[74] Nothing turns on that point. There was an evidential foundation for either conclusion. On that basis, it was open to the jury to consider whether they were satisfied beyond reasonable doubt that the accused acted as a principal or as a party. The Judge was entitled to form his own view on that issue for sentencing purposes.
Mark Taliauli’s and Joseph Vaituliao’s sentence appeals
[75] Mark Taliauli’s sentence appeal was based on unjust disparity, while Joseph Vaituliao’s appeal was based on manifest excess. We deal together with both Mark Taliauli’s and Joseph Vaituliao’s appeals against sentence. We do so in the context of the sentence imposed by Judge Robinson on Aeefua Tapuni, following his guilty pleas during the course of the trial.
[76] Judge Robinson was careful to differentiate between the roles played by the three appellants and Mr Tapuni in the attack.
[77] In dealing with Mr Tapuni the Judge took account of the fact that he had no prior convictions and, albeit at a late stage of the trial, pleaded guilty. He was also prepared to undergo a restorative justice process.
[78] The Judge accepted that the plea of guilty represented a genuine acceptance of responsibility. The fact that counsel for Mr Tapuni was instructed at a late stage influenced the Judge in giving more credit for the guilty pleas than might otherwise have been expected. Judge Robinson said: (DC AK CRI-2006-090-001666 5 June 2007):
[13] Having regard to all those circumstances (namely, his early plea of guilty, his age, the fact that he has no previous convictions), I am satisfied that a discount approaching 40 per cent is appropriate and consequently in respect of count 1, he will now be sentenced to five years’ imprisonment, and in respect of count 2, I have decided a sentence of three years’ imprisonment. The degree of provocation, of course, did not apply as I am satisfied to the count involving Manya, but of course those sentences will be concurrent. As I understand it, because of the length of sentence, there is no jurisdiction to impose conditions on release.
[79] In dealing with Mark Taliauli, Judge Robinson said:
[14] . . . Mark Taliauli, I am satisfied the jury concluded, was involved as a party because he was a lookout. It is said that he has a relatively good probation report. I will give an adequate discount for the degree of involvement in the offence. The jury of course, having convicted him, concluded that these injuries must have been in contemplation but the evidence tends to indicate that he was not the one who inflicted the injuries.
[15] I therefore conclude that an appropriate penalty is one of five years’ imprisonment in respect of count 1 and he will be sentenced accordingly. With regard to count 2, there will be a sentence of three years’ imprisonment. With regard to the driving offences, I am not prepared to simply convict and discharge him, but having regard to the overall sentences I have imposed, I have decided not to accumulate the prison sentences with regard to the driving offences and they will be concurrent. On the charge of driving whilst disqualified, he will be sentenced to one month’s imprisonment. On the charge of driving with excess breath alcohol, he will be sentenced to two months’ imprisonment. Those sentences are concurrent. I have considered that a sentence should be imposed because the offences occurred so soon after his first or previous offences and I must impose a disqualification for 12 months and one day in respect of each of those offences but I suspect that will have very little practical effect. However, that sentence is imposed as required by law.
[80] So far as Joseph Vaituliao was concerned the Judge said:
[16] With regard to Joseph Vaituliao, Manya Watene identified four people as being present and I am satisfied the jury concluded that you were one of them. As I said, the starting point must be eight years’ imprisonment. You have no previous convictions. Having given you credit for that and for what seems to me to be a very good character, you will be sentenced to six years’ imprisonment with regard to count 1 and three years with regard to count 2.
[81] Steve Vaituliao, whose sentence is not challenged, received a lesser sentence than his brother; due to his relatively young age, lack of previous convictions and the letter (see [22] above) written to acknowledge belated responsibility and expressing remorse.
[82] Sentencing was undertaken in reliance on principles set out in R v Taueki [2005] 3 NZLR 372 (CA). Taueki is relevant, in this case for two reasons. First, it refers to the methodology to be employed in sentencing. Second, it provides three bands to assist a Judge in imposing sentence.
[83] Sentencing on grievous bodily harm convictions is separated into three bands. Band three encompasses serious offending, with three or more of the aggravating features identified earlier in the Taueki judgment.
[84] Fourteen aggravating features were identified by O’Regan J, delivering the judgment of this Court: at [31].
[85] In this case no fewer than seven of those aggravating features were present: extreme violence, serious injury, use of weapons, attacking the head, multiple attackers, vulnerability of the victims (both lay prone on the ground) and vigilante action. Mr Raftery also suggested that premeditation was involved, though we discount that aspect because of the weight placed on provocation by the Judge in sentencing.
[86] This was a serious and concerted street attack in which weapons were brought to the scene and serious and lasting injuries inflicted on one of the victims. Those circumstances called for a starting point around the middle range of band three. A starting point of something in the order of 12 years imprisonment would not have been excessive, before taking into account mitigating factors.
[87] The Judge took a starting point at the upper end of band two (eight years) to take account of the provocation. While that assessment could be seen as benevolent to the prisoners having regard to the nature of the attack and the consequences suffered by Mr Watene, it is explicable by the need to bring to account the substantial degree of provocation involved. There were a series of incidents that all began with the Watene group going out to seek trouble in the circumstances described in [12] above.
[88] On the evidence of Mark Taliauli’s involvement, his sentence cannot be said to be out of kilter with that imposed on his co-offenders. For that reason his appeal on grounds of unjust disparity must fail.
[89] Because of the serious nature of the attack, the sentence imposed on Joseph Vaituliao was well within the range available to the Judge and cannot be regarded as manifestly excessive.
[90] In those circumstances, the sentence appeals must be dismissed.
Conclusion
[91] For the reasons given:
(a) Steve Vaituliao’s appeal against conviction is dismissed;
(b)Mark Taliauli’s appeals against conviction and sentence are dismissed; and
(c)Joseph Vaituliao’s application for an extension of time to appeal is granted, but his appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington
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