Taha v The Queen - [2015] NZCA 107

IN THE COURT OF APPEAL OF NEW ZEALAND

CA405/2014
[2015] NZCA 107

BETWEEN	PHILLIP WIKI TAHA Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2015
Court:	Cooper, Andrews and Gilbert JJ
Counsel:	P K Hamlin and E J Burton for Appellant S K Barr for Respondent
Judgment:	30 March 2015 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Cooper J)

The appellant Phillip Taha was convicted on one count of aggravated robbery following his trial in the High Court at Auckland before Katz J and a jury.[1] He now appeals against his conviction relying on four grounds of appeal.
[1]R v Taha HC Auckland CRI-2013-057-747, 15 May 2014.
The grounds are:
(a)Evidence has become available since the trial that the appellant did not participate in the robbery. Mr Tahere Hutchins, a co-defendant who pleaded guilty two weeks prior to the trial, has sworn an affidavit stating that he was present but the appellant was not.
(b)There was insufficient evidence on which a reasonable jury could convict the appellant.
(c)The Judge wrongly allowed propensity evidence to be admitted against the appellant in the form of a conviction for an earlier aggravated robbery.
(d)There were deficiencies in the Judge’s summing-up.

Background

The aggravated robbery occurred on 1 October 2012 at an ANZ bank branch in central Pukekohe.
The Crown case at trial was that five men set out in a car from a house occupied by Sewa Taha, the appellant’s sister. They drove to a supermarket carpark separated from the bank by an alleyway. The driver was Justin Spencer who gave evidence for the Crown. Seated next to him in the front passenger seat was Harley Taha. Harley Taha pleaded guilty to a count of aggravated robbery and a count of being an accessory after the fact, although it was the Crown case that he was the organiser of the robbery.
Once the car was parked, the three others entered the bank. One of them was said to be the appellant, carrying a shotgun which he used to threaten staff. The other two were Bobby Maxwell, who was also convicted at the trial and Mr Hutchins.
The Crown case was that the appellant was the first of the robbers to enter the bank. He had been aware at least from the day before the robbery that his cousin, Harley Taha, was planning the robbery. It is not in dispute that at some time prior to the firearm used in the robbery being located by the police, the appellant had handled it. Further, on the morning of the robbery, at Harley Taha’s request, the appellant accompanied Mr Hutchins to an address where they thought there would be a stolen car.
Mr Spencer did not know the appellant and was not able to identify him from a photograph board. However, he knew the person in question was Harley Taha’s cousin. The appellant is Harley Taha’s cousin. Mr Hutchins is also Harley Taha’s cousin,…

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 Taha v The Queen

Details

AGLC: Taha v The Queen [2015] NZCA 107
Case: [2015] NZCA 107
Decision Date: 30 March 2015 at 12.30 pm

CaseChat Overview and Summary

Phillip Taha appeals against his conviction of aggravated robbery. The appeal is dismissed. The appellant was convicted on one count of aggravated robbery. He relies on four grounds of appeal: new evidence, insufficient evidence, propensity evidence, and the summing up by the Judge. The appeal based on new evidence is rejected as the evidence was not fresh, credible, or cogent. The appeal based on insufficient evidence is also rejected as the jury was properly directed and made findings on the evidence before them. The appeal based on propensity evidence is rejected as the evidence was properly admitted. The appeal based on the summing up is rejected as the Judge did not err in her directions to the jury.

Orders