Tahere v The Queen
[2012] NZCA 389
•30 August 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA869/2011 [2012] NZCA 389 |
| BETWEEN TAMATI TAHERE |
| AND THE QUEEN |
| Hearing: 20 August 2012 |
| Court: White, Heath and Andrews JJ |
| Counsel: S Tait and J Hudson for Appellant |
| Judgment: 30 August 2012 at 10.00 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
Mr Tahere was charged with one count of kidnapping. He was tried before Judge Treston and a jury, in the District Court at Manukau, in November 2011. While the jury returned a verdict of guilty, his co-accused, Mr Palmolungo, was found not guilty.
Mr Tahere appeals against his conviction. Initially, the appeal was brought on the grounds that the verdict of guilty was not supported by the evidence. This point was abandoned at the hearing of the appeal. We treat the appeal as being pursued on the grounds that the verdict was unreasonable,[1] as a result of the alleged inconsistency between the jury’s verdict of guilty in respect of Mr Tahere and the acquittal of his co-accused.
[1]Crimes Act 1961, s 385(1)(a) and R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13]–[14], applying, in large part, R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [86]–[87].
At the commencement of the hearing our attention was drawn to the fact that the indictment on which Mr Tahere and Mr Palmolungo stood trial stated that the kidnapping charge was based on s 209(a) of the Crimes Act 1961, a section that includes use of a ransom. The charge was actually pursued under s 209(b), the elements of which were reflected in the words of the indictment itself. Out of an abundance of caution, we granted leave, with the consent of counsel for Mr Tahere, for the indictment to be amended to refer specifically to s 209(b). If there were any specific reference to s 209(a) in Mr Tahere’s criminal record it should be amended to refer to s 209(b).
Background facts
On Friday 30 October 2009, the complainant (a high school student, aged 17 years, who was living with her mother on the North Shore) was, with her friend, truant from school. They were sitting on the side of a road near the school, playing music and making daisy chains. Mr Tahere (aged 21 years), Mr Palmolungo (aged 16 years) and two associates drove up to the girls and stopped to talk to them.
Telephone numbers were exchanged. Shortly after that, the complainant received a text message from Mr Tahere asking if she wanted to “have a session” with him and his friends. She agreed and spent the rest of the afternoon driving around the North Shore area with the men. During that time both alcohol and cannabis were consumed. No difficulties arose on this occasion. When the complainant requested, she was returned to her home. In her evidence, the complainant said she came to trust the men.
Over the following weekend, the complainant received various communications from Mr Tahere. It appears that he was keen to meet with her again.
The complainant did not go to school on the Monday morning. Instead, she sent a text message to Mr Tahere asking him to join her. Mr Tahere arrived with Mr Palmolungo and (on the complainant’s evidence) one other male. Most of the day was spent driving around the North Shore. The complainant’s evidence was that the third man was driving the car from the time she was picked up until they arrived in Otara, later in the day.
During the day, they went to Long Bay, where alcohol and cannabis were consumed. While at Long Bay, the complainant and Mr Tahere engaged in a consensual act of sexual intercourse, in a public toilet. The complainant’s recollection of what happened after they left Long Bay was hazy. That is consistent with the combined effects of the alcohol and cannabis she had consumed. She next remembered arriving at an address on Waipapa Crescent, in Otara. She did not know where she was and felt scared.
The complainant tried to get away from the car. She gave evidence of the men physically taking her back to the car. There was independent eye witness testimony that Mr Tahere held the complainant from behind and dragged her back to the car, with Mr Palmolungo assisting. Mr Palmolungo drove away from the scene, with the complainant and Mr Tahere as passengers. The complainant was screaming. She did not know where she was. Nor did she know where the men proposed to take her.
The Crown alleged that the unlawful detention began at the time when the complainant was dragged back into the car on Waipapa Crescent and ended when police officers (having receiving a 111 call from a third party) located the vehicle at Dissmeyer Drive, Flat Bush.
As Mr Tahere and Mr Palmolungo were the only persons present at the time the complainant was put into the vehicle unwillingly at Waipapa Crescent, each was charged with kidnapping.
Was the guilty verdict unreasonable?
In R v Owen,[2] the Supreme Court substantially endorsed a test articulated by the Court of Appeal in R v Munro[3] on what constitutes an unreasonable verdict.[4] Delivering the judgment of the Supreme Court in Owen, Tipping J confirmed that a verdict will be unreasonable “where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt”.[5]
[2] R v Owen, above n 1, at [14]–[15].
[3] R v Munro, above n 1, at [87].
[4] See also R v W(R) [1992] 2 SCR 122 (SCC).
[5] At [14]–[15].
Owen went on to confirm that the word “unreasonable”, in s 385(1)(a) of the Crimes Act 1961, required no elaboration. The Supreme Court did “not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict”.[6]
[6] At [17].
Where it is asserted that a guilty verdict is unreasonable because of inconsistent verdicts, R v Irvine[7] is the controlling authority. Delivering the judgment of the Court of Appeal in that case, Richmond J said:[8]
... For the purposes of the present case it is sufficient for us to adopt the approach which found favour with the Criminal Division of the Court of Appeal in R v Drury [1971] 56 Cr App R 104, and R v Durante [1972] 1 WLR 1612; [1972] 3 All ER 962. In the first of those cases the Court of Appeal held that there is no general rule that the mere fact that a jury has returned ex facie inconsistent verdicts on counts in an indictment means that the Court is obliged of necessity to quash the conviction.
In the second case the Court expressed its approval of the following passage taken from the judgment of Devlin J in R v Stone (unreported, UK, 13 December 1954), (CCA):
“When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that.”
The foregoing approach appears entirely consistent with what was said by Spence J (with whose judgment five of the other Judges of the Supreme Court of Canada agreed) in Koury v The Queen (1964) 43 DLR (2d) 637, especially at p 652.
In the present case the evidence before the jury was ample to support a conviction on the second count. The question which we must ask ourselves is whether the acquittal on count one, in all the circumstances of this particular case, renders the verdict of guilty in respect of count two unsafe, in the sense that no reasonable jury could have arrived at different verdicts on the two different counts.
[7] R v Irvine [1976] 1 NZLR 96 (CA).
[8] At 99.
It is clear that the jury must have accepted the complainant’s evidence in order to find Mr Tahere guilty of the crime charged. Thus, the question is whether the verdict of not guilty in respect of Mr Palmolungo was so inherently inconsistent with the verdict of guilty returned against Mr Tahere, that the guilty verdict must be considered unreasonable.
When summing up to the jury, Judge Treston emphasised the need for the jury to consider the charges separately. He said:
Now you will see on the actual indictment that there are, of course, the two names of the two accused mentioned. You have got to remember that in fact each of the two accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately and come to a separate considered decision about each of them. Because they are jointly charged in the way that they are here, does not mean that they both must be guilty or both must be not guilty. It is for you to make a separate decision in relation to each of them on the evidence that relates to them. Of course lots of the evidence is intertwined and relates to each of the accused, but you have got to treat this whole thing as if there were two trials going on at the same time and deal with each of them separately.
Later, reflecting that direction, the Judge summarised separately the cases for each accused. He reminded the jury that counsel for Mr Tahere had submitted to them that, when the complainant was put into the car at Waipapa Crescent, it was to make sure she was safe, to take her back to the car and then return her to her home, after getting some petrol and, perhaps, some food. Next, he summarised the case for Mr Palmolungo, during which counsel had submitted that he did not know why they had ended up in South Auckland at all. The Judge emphasised submissions that, during the drive from North Shore to Waipapa Crescent, Mr Palmolungo had been a passenger in the car and that he had no intention to detain the complainant at Waipapa Crescent.
Mr Palmolungo’s explanation of what occurred (given in the course of his DVD interview) was consistent with that given by the complainant. He admitted that he and Mr Tahere had put the complainant into the car and driven her away from Waipapa Crescent, notwithstanding her distress. Mr Palmolungo accepted that the complainant was arguing with them as they put her into the car and was asking for them to take her home. He also accepted that she was yelling out “help me, help me” and was trying to kick them.
Mr Palmolungo was prepared to accept that, to an outside observer, it may have looked as though they were forcing the complainant to get back into the car. On the other hand, Mr Tahere was untruthful in his interview in the way he described how they had arrived at the Dissmeyer Drive property. For example, contrary to the evidence of the complainant and Mr Palmolungo, he indicated that the complainant was already in the car when he had been picked up in the area of Dawson Road, about 20 minutes before he was arrested.
Mr Palmolungo said that he had helped Mr Tahere to put the complainant into the car because “she probably would have got jumped in Otara, because she would have probably got robbed in Otara”. In short, his position was that he did not want to leave the complainant walking around the Otara area. There was also evidence, from the complainant, that Mr Palmolungo was doing nothing to detain her (though that evidence was tempered by the complainant’s acknowledgement of her drunken state) and that Mr Tahere was the “ring-leader”.
Mr Tait, for Mr Tahere, submits that there were no material differences between the cases for Mr Tahere and Mr Palmolungo which could have justified different verdicts. On the other hand, Ms Charmley, for the Crown, referring to statements made contemporaneously by the complainant and Mr Palmolungo and to the evidence given by the complainant at trial, submits that a jury could have been satisfied beyond reasonable doubt that Mr Tahere had an intention to detain the complainant, while harbouring a reasonable doubt about any criminal intent on the part of Mr Palmolungo.
Applying R v Owen, we are obliged to have regard to advantages that the jury may have had over the appellate Court, such as the assessment of credibility and reliability of witnesses, the weight to be given to individual pieces of evidence and the fact that reasonable minds may disagree on matters of fact.[9] The Supreme Court emphasised that, under our criminal justice system, it is the jury that is charged with finding facts and, therefore, an appellate Court should not lightly interfere with such findings.[10] Any appellant who claims a verdict of guilty is “unreasonable” must recognise that the appellate Court is not conducting a retrial on the written record. For that reason, it is necessary for an appellant to “articulate clearly and precisely and in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for [those] points ... the verdict should nevertheless be set aside”.[11]
[9] R v Owen, above n 1, at [13](b), (c) and (d).
[10] At [13](e).
[11] At [13](f).
Ms Charmley was able to point to three aspects of the complainant’s evidence that suggested that the jury was entitled to reach different conclusions on whether Mr Tahere and Mr Palmolungo respectively had the requisite intent to detain. The first was that Mr Tahere was seen as the “ring-leader”; the second was that she was dragged by Mr Tahere; and the third was that nothing was done by Mr Palmolungo to detain her. While Mr Tait took issue with the weight that could properly be given to those factors by the jury, in light of other evidence, we consider that they constituted evidence on which the jury could have relied when reaching verdicts in respect of the two separate trials.
In our view, it was open to the jury to find that an intention to detain had been proved beyond reasonable doubt in respect of Mr Tahere but not to be so satisfied in respect of Mr Palmolungo. The factors to which Ms Charmley referred together with the different character of Mr Palmolungo’s statement to the Police[12] provide an adequate evidential foundation on which the jury could have concluded that the Crown had not discharged the onus of proving criminal intent on the part of Mr Palmolungo. That being so, it cannot be said that the different verdicts were inherently inconsistent, nor “unreasonable” for the purposes of s 385(1)(a).
Result
[12] See [18]–[21] above.
For those reasons, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent