Rawiri v The King
[2024] NZCA 631
•3 December 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA189/2024 |
| BETWEEN | ELIJAH JAMAL TEUA RAWIRI |
| AND | THE KING |
| Hearing: | 11 November 2024 |
Court: | Thomas, Peters and Muir JJ |
Counsel: | J Y Yi and H Shin for Appellant |
Judgment: | 3 December 2024 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Muir J)
Introduction
Elijah Rawiri appeals his conviction, following a four-day jury trial on six charges relating to aggravated robberies of two inner city Auckland jewellery stores — Gold House and The Hour Glass.[1] His stated ground of appeal is that the jury reached unreasonable verdicts in terms of s 232(2)(a) of the Criminal Procedure Act 2011 (the Act). He says that there was no reliable evidence to place him at the scene of either aggravated robbery and, in that context, that no reasonable jury could have found him guilty of the charges to the required criminal standard.
[1]The charges included two of conversion of vehicles used in the respective robberies together with two charges of aggravated robbery, one of aggravated injury and one of aggravated robbery of a civilian.
In so doing he reprises the same essential argument that was advanced by his counsel at the conclusion of the Crown case on an application under s 147 of the Act. The trial judge rejected that application in a results judgment. No reasons have yet been issued.
The Crown case in relation to identity was a circumstantial one. The central issue on appeal is whether, cumulatively, the circumstantial evidence relied on by the Crown established facts capable of supporting the inference that Mr Rawiri was guilty of the crimes alleged.
The aggravated robberies
The first of these, the Gold House robbery, occurred on 19 May 2022 at 4.48 pm. The Crown led evidence identifying three men driving north in a red Mitsubishi Colt vehicle on Parnell Road in the latter part of the afternoon. They drove to Akaroa Street where they parked close to a white Toyota Aqua vehicle. One of the men broke into the Toyota and the two cars then travelled in convoy to Carlton Gore Road, Grafton where they parked on opposite sides of the road. All offenders then drove off in the Toyota vehicle to the Gold House in Victoria Street West. As the manually operated security doors to the premises were opened to let a customer out, the offenders entered and proceeded to smash various display cabinets and take a range of high-end jewellery and handbags.[2] One of the assailants threatened a customer with a tyre iron, telling him to hand over his mobile phone.
[2]Described by the sentencing Judge as having a value of $161,425: R v Rawiri [2024] NZDC 9505 at [5].
The offenders then fled the scene, returning to Carlton Gore Road where one of them attempted to remove the registration plate from the Toyota vehicle but was interrupted by a member of the public. The men then ran to the Mitsubishi and left with the stolen jewellery. At the time, the Mitsubishi vehicle was registered to Mr Rawiri’s mother.
The robbery of the Hour Glass occurred on 6 August 2022 at around 3.30 pm.
Minutes earlier, seven men travelling in the same red Mitsubishi vehicle arrived in Parliament Street, Auckland Central. There they broke into a blue Honda Fit vehicle which they then drove to The Hour Glass store in Queen Street. Four of the group then smashed the front door of the premises before ransacking various jewellery cabinets, again taking high-end jewellery items.[3] While this occurred the other three men remained outside the store with the evident intention of preventing members of the public from entering.
[3]Described by the sentencing Judge as having a value of “in excess of a quarter of a million dollars”, at [8].
An off-duty police officer tried to immobilise the Honda vehicle and was swung at with an unidentified object. A second man approached the victim from his other side and again swung at him with an unknown object hitting him on the head.
The men then fled the scene in the Honda vehicle which they abandoned at the intersection of Eden Crescent and Parliament Street. They then ran to the red Mitsubishi vehicle and drove off.
The evidence at the trial
The Crown case included a significant volume of evidence that was not disputed. There was a comprehensive agreement under s 9 of the Evidence Act 2006 and eight formal statements introduced by consent. The offending itself was not disputed. Identification was the key issue.
The key identification evidence was led through Detective Constable Samantha Beaton and consisted of a compilation of CCTV clips and videos, photograph booklets relating to each of the premises, detailed breakdowns of the relevant CCTV stills and police investigations in respect of the same premises, and individual stills from the CCTV footage and videos.
The Crown case closed on 14 November 2023. The following day the trial Judge heard and dismissed the defence s 147 application.
Mr Rawiri then elected to give evidence. He denied any involvement with or knowledge of the offending. In respect of the Gold House robbery, he said that he was with his partner and baby for the entire afternoon and had given his vehicle to an associate who had in return given him $200 in cash. In respect of the robbery of The Hour Glass, he said that he had given his vehicle to his brother earlier that day and that during the relevant period he was driving around the city on a motorbike left at his grandfather’s house or was in the house.
No evidence was called to corroborate any of these alibis.
The law
When an appeal is brought under s 232(2)(a) of the Act it must be allowed if the court is satisfied that, having regard to the evidence, the jury’s verdict was unreasonable.
As the Supreme Court has stated:[4]
… a verdict will be unreasonable if, having regard to the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.
[4]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
The relevant principles are long standing and are succinctly stated in Owen v R:[5]
(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b)The appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c)The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e)Under our judicial system the body charged with finding the facts is the jury. The appellate courts should not lightly interfere in this area.
(f)An appellant who invokes [s 232(2)(a) of the Act] must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, having made appropriate allowance for the points made above, the verdict should nevertheless be set aside.
[5]At [13], endorsing aspects of this Court’s decision in R v Munro [2007] NZCA 510, [2008] 2 NZLR 87. This discussion was in the context of s 385(1)(a) of the Crimes Act 196, the precursor provision to s 232(2)(a) of the Criminal Procedure Act 2011.
In R v Hong this Court (quoting R v Adams) outlined the proper approach for considering sufficiency of evidence where the Crown case is circumstantial as to consent, however the statement is relevant for all circumstantial cases:[6]
Where, as here, the Crown case is dependent, in whole or in part, on inferences, the credible evidence must establish facts capable of supporting the inference. The court should not decide on such an application or submission whether the relevant inference should be drawn.
[6]R v Hong [2018] NZCA 97 at [30] (emphasis original), quoting R v Adams HC Auckland T240/91, 8 October 1992 at 4.
As has long been recognised and as juries are daily reminded, it is the cumulative effect of individual pieces of circumstantial evidence “often of slender, and sometimes very slender, weight in themselves” which must be considered.[7]
Discussion
Introduction
[7]Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].
Mr Rawiri’s argument on appeal is substantially based on acknowledgments by the officer in charge that:
(a)there was no DNA or fingerprint evidence linking the defendant to either set of offending;
(b)because a particular vehicle might be involved in a robbery this does not establish that the owner was similarly involved; and
(c)she could not be sure that the comparative clothing analysis relied on by the Crown depicted exactly the same items of clothing.
However, the Crown’s case was always circumstantial. In particular it relied on four strands of evidence:
(a)the connection of Mr Rawiri to the red Mitsubishi vehicle and its use in both robberies;
(b)Mr Rawiri’s approved use of the vehicle at times proximate to the robberies;
(c)clothing/shoes worn by one of the offenders in each of the robberies and clothing/shoes worn by Mr Rawiri at other times; and
(d)the similarities of the two robberies.
Use of the vehicle
Detective Constable Beaton gave evidence that Mr Rawiri confirmed to her that he had used the vehicle as a “run round” for the previous three years. Evidence was introduced of him driving the vehicle on 17, 19 and 23 May 2022 and 5 and 6 August 2022. Detective Constable Beaton confirmed that she had reviewed other CCTV footage and in each case he was the driver of the vehicle.
As indicated, this vehicle was used in both aggravated robberies. In particular, the offenders used it to scope out potential vehicles to steal and it was used as a “clean” getaway vehicle. In respect of the Gold House robbery, it was parked directly across the road from where the white Toyota Aqua vehicle was stolen. In respect of the robbery of The Hour Glass, it was parked in close proximity to the blue Honda vehicle subsequently stolen and used in the robbery. All of this was conclusively established by the CCTV footage.
Timing and proximity
Following the Gold House robbery and at 4.54 pm, the offenders are observed to transfer from the Toyota vehicle to the Mitsubishi vehicle on Carlton Gore Road. At 6.40 pm the same day (that is one hour and 46 minutes later), Mr Rawiri is observed driving the red Mitsubishi vehicle into the Z petrol station in Takanini.
Likewise on the day of the robbery of The Hour Glass, Mr Rawiri is observed driving the Mitsubishi vehicle within approximately two and a half hours of the robbery.
Clothing
One of the Gold House offenders was observed on Carlton Gore Road wearing black shoes, white socks, and black pants with an indistinct white symbol on the left side of the thigh and a black hoodie with white symbol (again indistinct) on the left chest. At 6.40 pm, Mr Rawiri arrived at the Z petrol station in Takanini. There he was observed to be wearing black pants with a white Adidas symbol on the left thigh, black shoes and white socks. He used a bank card belonging to his partner to withdraw $20 from the ATM machine inside the petrol station. In his evidence he said he needed to buy takeaway food for himself.
We regard this particular thread of circumstantial evidence as relatively slender given the ubiquity of branded track pants and the relatively indistinct nature of the image on Carlton Gore Road. Nevertheless we regard it as a thread which could be considered in an aggregated assessment of the circumstantial evidence if the jury rejected Mr Rawiri’s account of how he spent the afternoon and early evening of that day (an issue to which we will return later).
In relation to The Hour Glass robbery, the clothing related circumstantial evidence is, in our view, stronger. CCTV footage taken from within the store shows one of the offenders wearing a grey hoodie and a distinctive pair of Nike Air sneakers. A photo taken by a member of the public as the offender flees, shows a distinctive pattern across the front of the foot of the sneakers. A further photograph of the offender, still wearing the grey hoodie and entering the getaway vehicle shows a distinctive orange pattern on the sole of the shoe.
CCTV footage of Mr Rawiri at the Mobil Papatoetoe petrol station on the same day, approximately two and a half hours prior to the robbery, shows him wearing a grey hoodie similar to that of the offender captured on the CCTV footage and photographed at the robbery.[8]
[8]At the Mobil petrol station Mr Rawiri is observed wearing a black puffer vest over the top of the grey hoodie making an exact comparison impossible.
The Crown likewise introduced evidence (video footage and associated still images taken at the Z Kingsway petrol station on 23 May 2022) of Mr Rawiri wearing Nike Air sneakers corresponding to those worn by one of the offenders at the robbery of The Hour Glass. The shoes have the same distinctive “air cushion” on the side of the soles and the same distinctive patterns across the top of the foot and on the soles themselves. Mr Rawiri acknowledged consistencies but maintained it was not him depicted in The Hour Glass footage and stills.
Similarities in the execution of both robberies
The Crown case was that both robberies were characterised by a similar modus operandi in that both occurred in broad daylight and were immediately preceded by the theft of getaway vehicles. In turn, both getaway vehicles were parked in close proximity to the red Mitsubishi vehicle, both robberies occurred in Auckland Central and targeted high end jewellery stores, the offenders in both robberies utilised similar types of disguises, similar types of weapons (tyre irons and crowbars) and were conducted on a “smash and grab” basis.
All that is unarguable, indeed as the Judge observed in her summing up, the similarities were accepted by the defence. However, in the context of a defence case that Mr Rawiri participated in neither robbery the fact that there was a similar modus operandi was of itself of no circumstantial weight.
Nevertheless, if the jury was sure, by reference to the totality of circumstantial evidence, that Mr Rawiri participated in at least one of the robberies, it was entitled to apply cross propensity reasoning on account of the similarities. The Judge summed up on that basis. No criticism is made in this respect.
The cumulative position
As we have indicated, the test is whether the having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. It is not for this Court to substitute its own view of the evidence. The weight to be given to individual pieces of evidence was and is quintessentially a jury function.
We are satisfied that, cumulatively, the Crown advanced a circumstantial case that could reasonably have satisfied the jury that Mr Rawiri was guilty beyond reasonable doubt. The similarity of the distinctive shoes worn by one of the offenders in The Hour Glass and those previously worn by Mr Rawiri was likely the strongest thread and in turn informed the cross propensity analysis. But the evidence of Mr Rawiri driving the “clean” getaway vehicle at times proximate to both sets of offending also had evidential value. In turn this was bolstered to some extent at least by the other comparative clothing evidence.
We are supported in that assessment of the Crown case by the fact that the experienced District Court Judge did not consider the charges appropriately disposed of under s 147 of the Act.[9]
[9]Relevantly, the court may dismiss a charge if the judge is satisfied that as a matter of law, a properly directed jury could not reasonably convict the defendant: Criminal Procedure Act, 2011.
In assessing whether the verdicts were unreasonable, we are also obliged to take into account the fact that Mr Rawiri chose to give evidence and that the jury had the opportunity to assess for itself the credibility of his denied involvement. We consider aspects of his evidence to lack credibility. In particular, he said that on the day of the Gold House robbery, his “mate” asked to borrow his vehicle about 1 or 2 pm, returning it at about 6 pm, at which time he gave Mr Rawiri $200. The evidence in turn established that at 6.40 pm the same day, Mr Rawiri was observed withdrawing money from the ATM machine in the Z Takanini petrol station. When challenged in cross-examination as to why he was doing so when he had just been given $200 cash, his response was “[o]h, ‘cos $200 — well I wasn’t really wanting put that to use, I just wanted to just save it and yeah”. The jury was, in our view, entitled to reject that evidence. This in turn would have inevitably impacted the credibility of his entire explanation of events on 19 May 2022.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for the Respondent