R v W HC Auckland CRI 2008-092-13286

[2009] NZHC 2578

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-092-13286

THE QUEEN

v

W

Hearing:         1 December 2009

Appearances: A R Burns and B M Finn for the Crown

M J Dyhrberg and B J Hunt for the accused W 

Judgment:      1 December 2009

ORAL JUDGMENT OF PRIESTLEY J (S 347(3) application)

Counsel:

A R Burns and B M Finn Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]
M J Dyhrberg, P O Box 47867, Ponsonby, Auckland 1144. Fax: [phone]

Email: [email protected]

B J Hunt, P O Box 5494, Lambton Quay, Wellington 6145. Fax[phone]

Email: [email protected]

R V W HC AK CRI 2008-092-13286  1 December 2009

[1]      At the conclusion of the Crown case Ms Dyhrberg made an application under s 347(3) of the Crimes Act seeking the discharge of the accused for whom she acts, Mr W  .

[2]      The application, as I understand it, related to the count of murder rather than the count of aggravated robbery.   However, for practical purposes the evidence against Mr W  , so far as his alleged presence at the scene of the homicide and the aggravated robbery on 12 August 2008 is concerned, is the same.  So I shall treat the application as extending to both counts.

[3]      The law as it relates to s 347 discharges at the end of the Crown case is well known.  It is set out in the Court of Appeal judgement of R v Flyger [2001] 2 NZLR

721, and in particular [13] and [15] of that judgement.  The issue, as the Court said in Flyger, is not whether a jury is likely or unlikely to reach a certain conclusion, but rather what the jury may properly do.  It is only in those cases where the evidence to support a charge is barely adequate or extremely tenuous to the extent that the Judge concludes  that  a  jury,  if  properly  directed,  could  not  safely  convict,  that  the discretion to discharge should be used.

[4]      As is well known, Flyger was “explained” in the subsequent Court of Appeal judgement of Parris v Attorney General [2004] 1 NZLR 519 and in particular at [13] and [14].

[5]      The respective roles of judge and jury in a criminal trial need to be respected. It is not the function of a presiding judge when seized of a s 347 application to usurp the jury’s role.  Rather the judge’s role is to act as a constitutional gatekeeper.  It is for that reason that the discretion is sparingly exercised and should only be exercised in situations where a correctly directed jury could not properly convict.   In other words, a person who is on trial is protected from exposure to the risk of an adverse verdict in a situation where any conviction would quite simply be unsafe.   (See generally R v Lua HC AK CRI-2006-092-004336, 24 April 2007, Baragwanath J, especially at [3] and [4].)

[6]      Ms Dyhrberg, for the accused, has focused her submissions on what she perceives as being two aspects of the Crown evidence, which in her submission are inherently  unreliable  and/or  unsafe.    She  is  referring  first  to  the  evidence  of Raymond  Hereora  who  was  declared  a  hostile  witness.    She  also  refers  to  the evidence given by video link by Mr J W Barter.

[7]      Referring first to Mr Hereora’s evidence.  Ms Dyhrberg’s submission is that this witness has admitted to perjury;  he has also demonstrably changed his story;  he has also given evidence of being under the influence of drugs at material times. Thus follows, says Ms Dyhrberg, that his evidence is totally unreliable.  Should the jury seize on his evidence to convict Mr W   such conviction would be unsafe.

[8]      The  specifics  of  the  evidence  of  Mr  Hereora  relate  in  the  main  to inconsistencies between the evidence he gave to the jury and information contained in first, a statement which he gave to the police on or about 24 August 2008 and secondly, at the committal hearing in the Manukau District Court.   On both those occasions Mr Hereora’s evidence was to the effect that when he, the accused Mr Tumata,  and  the  accused  Mr  W    were  having  a  session  in  a  garage,  Mr W    admitted  to,  “hammering  the  deceased”  or  words  to  that  effect.    Mr Hereora also gave evidence that the two accused had been discussing the events of

12 August 2008 in his presence, although he gave no specifics about what it was they were discussing.

[9]      In  due  course,  when  Mr  Hereora  was  giving  evidence-in-chief,  Crown counsel confronted him with the contents of both his police statement and his deposition evidence, which up to that point, Mr Hereora had been disposed not to recall or deny.  Mr Hereora’s explanation for these inconsistencies was that what he had said both to the police and at the committal hearing, had been incorrect.   He further asserted that he had told a police officer prior to giving evidence in the Manukau District Court that his police statement was incorrect.  The full details of these inconsistencies and the basis on which I declared Mr Hereora a hostile witness appear in my earlier ruling on that topic.

[10]     Ms  Dyhrberg  accepts  that  so  far  as  the  evidence  given  to  the  jury  was concerned, Mr Hereora denied that the accused Mr W   had said anything to him along the lines that it was he who had hammered the deceased.   Indeed, in effective cross-examination, Ms Dyhrberg succeeded in getting Mr Hereora to accept that Mr W   had never said to the witness that he was involved in the murder; that he had never said that he had hammered anybody; and that he had never said he was involved in any way in the attack on the deceased.

[11]     The only contrary evidence to those denials by the witness which the jury heard, comes from Mr Hereora’s acceptance, when being questioned by Mr Burns, that  he  had  made  statements  to  the  contrary,  in  both  his  August  2008  police statement and at the committal hearing.  Neither that police statement nor a copy of Mr Hereora’s deposition evidence, however, have been produced as exhibits.  Those inconsistent statements will not be before the jury.

[12]     Mr Burns on this topic points to available evidence from witnesses other than

Mr Hereora, that both the accused W   and Tumata had been seen together on

11 August 2008 (the day prior to the alleged offending), and indeed on the day itself. In Mr Burns’ submission he is entitled to submit to the jury that they should take up and weigh Mr Hereora’s previous inconsistent statements (that is inconsistent with the evidence he gave at this trial).  There is no challenge to that proposition by Ms Dyhrberg, and correctly so because it is clearly correct.

[13]     The second limb of Ms Dyhrberg’s submissions deals with the evidence of Mr Barter.  Mr Barter’s evidence was to the effect that sometime after the arrival of a blood stained Mr Tumata at his (Mr Barter’s) home address and a number of incriminating statements made to Mr Barter by Mr Tumata, including his being involved in a standover which had gone wrong, there was a knock on the door.  A person arrived.   He was introduced to Mr Barter by Mr Tumata as being “Nate”. There was some discussion about the events of the evening in Mr Barter’s presence. However there were no specifics which one could regard as being particularly incriminating so far as Mr W   is concerned.

[14]     Mr Barter’s basis for identifying Mr W   is not particularly strong, but he gave evidence that he had seen this person once before briefly in a vehicle.  He also gave a description of the nocturnal visitor which does not sit easily with the physical description of the accused.

[15]     The next morning, at the instigation of the accused Tumata, Mr Tumata and Mr  Barter  decided  to  take  a  walk  to  Lever  Place  which  was  the  accused  Mr W  ’ residence.  The purpose of this walk, from Mr Tumata’s perspective, was to see whether Mr W   could, in Mr Barter’s presence, be persuaded to make some  statement  confirming  his  (Mr  W  ’)  involvement  in  the  events  the previous evening.   Mr Barter’s evidence about what occurred when the two men arrived at Leaver Place was somewhat vague.  He does not seem to have been privy to or have heard any conversation between the two men.  He did, however, make the assumption that the man to whom Mr Tumata was talking was the accused W  . In re-examination by the Crown he confirmed that this was the person who had visited at his house the previous night.

[16]     Ms  Dyhrberg’s  submission,  and  there  is  some  force  in  it,  is  that  the identification evidence of Mr Barter is weak.  She further submits that the jury are going to have to be given the normal warnings about identification.  There is nothing in Mr Barter’s evidence which really fixes Mr W  ’ presence at the scene of the alleged offending.   Finally, most of the background information which Mr Barter heard that night about Mr Tumata’s involvement and that of his co-offender came from Mr Tumata himself, and is thus clearly inadmissible so far as Mr W   is concerned.

[17]     So to summarise neatly Ms Dyhrberg’s argument, what she is saying is this. She submits that the constitutional safeguard and the discretion to discharge under s 347(3) should be exercised in this case.   There is a risk, she considers, that an unsafe conviction may flow if the jury were, in combination, to give impermissible weight to the evidence of Messrs Hereora and Barter, and reach a conclusion, which Ms Dyhrberg submits would be an impermissible conclusion, that it was indeed Mr W   who was at the scene of the homicide and who hammered the deceased thereby causing his death.

[18]     Mr Burns’ submissions of course are to the contrary.  He has pointed, as I have said, to other available evidence from other witnesses of contact between the two men on 11 and 12 August.  In his submission it is ultimately a matter for the jury to decide, and in particular for the jury to decide what weight should attach to the evidence of Messrs Hereora and Barter to which Ms Dyhrberg has understandably drawn attention.

[19]     I have a clear view on the proper conclusion.  There are certainly aspects of the Crown case against the accused Mr W   which are weak.   One of the challenges in this trial will be to direct the jury sufficiently strongly, that none of the many statements accusing Mr W   made by Mr Tumata can be admissible against Mr W  .  There is an understandable risk that the jury, having heard this inadmissible evidence, may, subconsciously at least, try to bolster up some of the Crown evidence which individually may not be particularly strong.

[20]     At the end of the day, assessing the evidence, weighing it, and in particular deciding whether the evidence which the Crown has offered against Mr W   satisfies themselves of guilt on both the charges the accused faces beyond reasonable doubt, is not my task.  It is the jury’s task.  I think it would be wrong in principle for me to take those issues away from the jury.   I do not consider that the evidence presented by the Crown at trial against Mr W  , and in particular the evidence coming from Messrs Hereora and Barter, is so objectionable and weak, that there is a danger on the basis of that evidence of Mr W   being unsafely convicted.

[21]     Thus the threshold tests in Flyger and Parris are not satisfied.   For these reasons the application is dismissed.

..............................

Priestley J