Tahitangatatarei v The Queen
[2013] NZCA 293
•10 July 2013 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA1/2013 [2013] NZCA 293 |
| BETWEEN | MINETTE CHANEL TAHITANGATATAREI |
| AND | THE QUEEN |
| Hearing: | 20 June 2013 |
Court: | Wild, Miller and MacKenzie JJ |
Counsel: | C J Nicholls for Appellant |
Judgment: | 10 July 2013 at 10.30 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
This is an appeal against both conviction and sentence.
Following a jury trial in the District Court at Wellington, Ms Tahitangatatarei was convicted of wounding a man called Mr Pamata with intent to cause him grievous bodily harm (GBH). Her co-defendant, Ms Ford, was found not guilty of that charge, and not guilty of a second charge of wounding a Mr Lealaogata with intent to injure him.
Following the trial Ms Tahitangatatarei pleaded guilty to a further charge of assault with intent to injure arising from an incident in Arohata Prison while she was on remand in custody awaiting trial on the first charges.[1]
[1]R v Tahitangatatarei DC Wellington CRI-2011-091-4271, 7 December 2012.
Judge Tuohy sentenced Ms Tahitangatatarei to an effective term of four years imprisonment in respect of both charges.
Ms Tahitangatatarei appeals her conviction on two grounds:
(a)the photo montage identification of her as the woman involved in the GBH charge was wrongly admitted, resulting in a miscarriage of justice; and
(b)the verdict on the GBH charge was unreasonable, in that it was not supported by the evidence.
Ms Tahitangatatarei appeals her sentence as manifestly excessive, in that:
(a)the sentencing starting point taken by the Judge was too high; and
(b)a further discount of about three months should have been given for the fact that Mr Pamata had started the fight which resulted in his serious injuries.
Facts
The convictions arise out of the appellant’s involvement in a drunken fight outside a bar in Porirua in the early hours of 1 October 2011, after the bar had closed.
Mr Pamata, along with another Samoan man Mr Lealaogata, was in the car park outside the bar. There, announcing he was Black Power, he challenged one of two Mongrel Mob members to a fight – one-on-one.
When Mr Pamata started getting the better of the fight the second Mongrel Mob man joined in to make it a cowardly two-on-one fight.
While this was happening, the appellant and another woman attacked Mr Lealaogata in order to prevent him coming to Mr Pamata’s assistance. One of the women ‘bottled’ Mr Lealaogata in the side of the head, and then they chased him away throwing bottles at him.
Mr Pamata was overpowered by the two Mongrel Mob assailants and knocked to the ground, unconscious.
The appellant then joined in, stomping on Mr Pamata’s head several times while he lay unconscious on the ground. She came back a second time and kicked him some more.
Mr Pamata suffered serious injuries, some of which may be permanent. They include fractures to the bones in his forehead that surround and protect the eyes, at least one dead tooth and possibly brain damage, although this was not certain at the time of sentencing.
At the end of the trial the appellant pleaded guilty to a charge of assault with intent to injure, for her part in an assault on another female prisoner while she was on remand in Arohata Prison. Again, this attack was brutal and cowardly: several women attacked a lone victim, kicking and punching her in the head, particularly the face, as she lay defenceless on the ground.
Appeal against conviction
Photo montage identification
There are two aspects to this ground of appeal:
(a)the photo montage identification was not carried out “as soon as soon as practicable after the alleged offence [was] reported” as required by s 45(3)(a) of the Evidence Act 2006; and
(b)the montage did not contain “no fewer than 7 other [women] … similar in appearance to [the appellant]”, as required by s 45(3)(b).
We dispose of the second aspect first, since it has no merit. The witness who identified the appellant from a photo montage was Mr Avega, who was a doorman on duty in the bar on the night of the GBH incident. On the day of the incident, 1 October 2011, Mr Avega gave the police a detailed description of the woman he had seen stomping on Mr Pamata’s head as he lay on the ground. The description included “she had a beauty spot on her upper left lip, I am not sure if it was real or drawn on”.
Mr Nicholls submitted only one other woman in the montage had a spot on her upper left lip. Having looked at the montage we agree with Judge Barry in his pre-trial ruling that:[2]
The facial mole of itself does not amount, in my finding, to a “unique identifying feature” that would in turn require all of those images to show a facial mole.
[2]R v Tahitangatatarei DC Wellington CRI-2011-091-4271, 23 October 2012 (Ruling of Judge Barry) at [13].
The appellant is shown in photo 4 in the montage. Because photo 4 is over–exposed, it is quite difficult to see any mole or beauty spot on the appellant’s upper left lip.
Mr Avega’s uncertainty as to whether the beauty spot “was real or drawn on”, suggests he did not focus on it as a unique or permanent identifying feature. That was a point Judge Barry noted. The point was confirmed at trial in the cross–examination of Mr Avega:[3]
QWell I put it to you that you’ve just picked out the woman because of the beauty spot?
ANo I didn’t.
QAnd that had you’ve made a mistake.
ANo I didn’t.
QAn honest mistake but a mistake?
ANo I didn’t. You can say what you want.
QBecause essentially there was only two women there with beauty spots so it was like a 50/50 choice?
ANo it’s not.
[3]Notes of Evidence at 96/31–97/7 [NOE].
In cross-examination, counsel for the co-accused asked Mr Avega about the suggestion that had been made to him that “the only reason [he] picked out number 4 was because that was a lady with the mark on her face”. He answered “Ah, it wasn’t a mark. I could tell you – I, I know her face. I could pick her anywhere”.[4]
[4]NOE at 130/15–18.
Mr Avega said in evidence that he had talked to the appellant in the bar on the night of the incident, off and on for between 30 to 40 minutes. The CCTV footage taken in the bar showed Mr Avega talking to the appellant for about eight minutes. When she left the bar at closing time the appellant asked Mr Avega to go home with her to Tawa. So Mr Avega had a good opportunity to observe the appellant and some reason to remember her.
This point has no force.
We return to Mr Nicholls’ first point – that the photo montage identification was not carried out as soon as practicable after the offending.
It was not until 18 October 2011 that the police were in a position to interview the appellant about the GBH incident, which they did on DVD. She denied involvement and asserted an alibi. She claimed she had been at a friend’s house in Stokes Valley on the evening of 1 October 2011. After she had given the police her cell phone number and been photographed, the appellant was released.
The evidence established that these steps followed:
On 20 October 2011 the GBH incident featured in the Police Ten 7 programme on television. That drew several responses from anonymous sources nominating the appellant as involved in the GBH incident.
“Through the course of the enquiry” Mr Avega was shown a number of photo montages in an (unsuccessful) endeavour to have him identify the Mongrel Mob men involved.
The same applied to Mr Lealaogata – he was also shown a number of montages of male suspects. He could not identify any.
On a date not recorded in the evidence, the police obtained a search warrant in respect of the data from the appellant’s cell phone. Owing to an error in the application (a transposed number) the wrong data was provided. The police did not obtain a fresh warrant for the correct cell phone, and obtain access to the data from that cell phone, until 14 November 2011. The data from the correct cell phone linked the appellant both to the GBH incident and to other suspects with Mongrel Mob associations. That data – text messages – suggested that the appellant’s alibi was untruthful.
Also on 14 November 2011 Mr Avega identified the appellant from the photo montage as the woman he had seen stomping on Mr Pamata’s head as he lay on the ground.
Mr Nicholls submitted the photo montage identification should have been undertaken on or about 20 October 2011, and that the police were not justified in awaiting the outcome of their further investigations. He submitted the delay from 20 October to 14 November – some three and a half weeks – meant that the montage identification had not been conducted as soon as practicable. Mr Nicholls rested that submission on this Court’s decisions in Ah Soon v R[5] and Malone v R.[6]
[5]Ah Soon v R [2012] NZCA 48.
[6]Malone v R [2010] NZCA 59.
For three reasons we reject this submission. First, the evidence indicates that the police were continuing their investigations into the appellant’s involvement in the GBH incident up to 14 November when they obtained the texting data from the appellant’s cell phone. As we have noted, that data implicated her in the incident. The photo montage identification took place that same day – 14 November.
We see no need for the Courts to interpret the words in s 45(3)(a) “as soon as practicable”. They are ordinary, readily understood words. It is best that they be left unvarnished, to be applied in the circumstances of each case. Yet at least two cases have sought to explain these words. In one, Harney v Police, the Supreme Court said the formal identification procedure “should take place during the investigation or soon after an arrest”.[7] The identification here did take place during the investigation, and before the appellant was arrested in Masterton on 3 December 2011.
[7]Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [19].
As we have noted, the police were sufficiently interested in the appellant to interview her on 18 October 2011 – the interview at which she advanced an alibi that she subsequently admitted was false. But not until 14 November did the police obtain the texting data from the appellant’s cell phone linking her unerringly to the GBH incident. The identification was made that same day. We are satisfied that identification was made “as soon as practicable” after the GBH incident was reported to the police in the early hours of 1 October 2011. Practical application of the s 45(3)(a) requirement is best achieved if the Judge is conscious of the Law Commission’s observation that “recall and recognition accuracy are at their best immediately after encoding the information, and that both decline at first rapidly and then gradually over time”.[8]
[8]Law Commission Evidence: Total Recall? The Reliability of Witness Testimony (NZLC MP13, 1999) at [48].
Secondly, this case is altogether different from Ah Soon where there were unexplained delays of three months and six weeks respectively in two witnesses identifying Mr Ah Soon. The Crown conceded that the three month delay meant that identification was not obtained as soon as practicable after the offending was reported to the police. Because it was not adequately explained, and no proper foundation was laid for the suggestion that there was a lack of resources, the Court held that the identification made after the delay of six weeks had also not been obtained as soon as practicable.[9]
[9]At [17] and [19].
Thirdly, it was not put by Mr Nicholls to the officer-in-charge (Detective Withington) at trial that the photo montage identification was not carried out as soon as practicable. Mr Nicholls accepted that in his submissions, though suggesting the onus was on the Crown. Yet impermissible delay is precisely the submission Mr Nicholls now makes on appeal.
The delay point also fails.
Verdict unreasonable – not supported by the evidence
In closing to the jury for the appellant Mr Nicholls accepted the jury could convict the appellant “via two different legal routes, if I can put it that way”:[10]
(a)[the appellant] chased Mr Lealaogata away … so that the men could wound Mr Pamata … with intent to cause grievous bodily harm …
…
(b)… by assisting the men to wound Mr Pamata … by stomping him in the head when he was on the ground … as part of a continuing attack against him.
[10]Case on Appeal at 380 and 383–384.
In respect of (a) Mr Nicholls submitted to us, as he had to the jury, that the Crown had to prove that the appellant, when chasing Mr Lealaogata, was aware what was going to happen. He contended that “there’s nowhere near sufficient evidence to show that she knew what was intended at the time she left the scene of the fight and went off and started chasing Mr Lealaogata”.[11]
[11]Case on Appeal at 380.
We do not accept that. The prosecution dealt with this point in closing by telling the jury:[12]
… the Crown is suggesting to you that both Ms Tahitangatatarei and Ms Ford were aware that the two Mongrel Mob members would cause Mr Pamata-Feo serious injury and that was after he made those comments about Black Power. They chased Mr Lealaogata away from the scene leaving the two Mob members punching and kicking Mr Pamata-Feo, and they did that because of their own associations with the Mongrel Mob and they wanted that beating to happen in the way that it did and they supported it to happen. So, that is the Crown case in relation to that.
[12]Case on Appeal at 340–341.
The Judge’s summing up on this aspect was:[13]
… The Crown’s case is that the two accused were well aware that Mr Pamata was being seriously assaulted because they were there and would have seen it happening. They knew that Lealaogata was trying to help Pamata because they were seeing it happen. So the Crown says you should infer from those facts that in deliberately preventing [Mr Lealaogota] getting back to Pamata, the accused were intending to help the male assailants continue the assault without interruption, and that in joining in the assault by stomping on Mr Pamata, Ms Tahitangatatarei was intending to help and encourage the male assailants to continue their assault, and that throughout that time they were aware that they were wounding Mr Pamata and were intending to cause him really serious harm or injury.
[13]R v Ford and Tahitangatatarei DC Wellington CRI-2011-091-4271, 2 November 2012 (Summing Up) at [36].
We have read the evidence at trial. We are satisfied the evidence adequately supported the guilty verdict, if the jury reached that verdict via this first “route”.
Mr Nicholls submitted this could not have been the jury’s route, because it found Ms Ford not guilty both on the GBH count relating to Mr Pamata and of injuring Mr Lealaogata. However, the evidence identifying Ms Ford was different from that identifying the appellant. Ms Ford’s primary defence to both charges was that the Crown had not proved she was the other woman (other, that is, than the appellant) involved. In closing Ms Ford’s counsel said to the jury:[14]
There’s nothing like that quality and strength of evidence in relation to the identification of Ms Ford as the person who hit this man with a bottle.
…
The identification evidence is very, very weak.
[14]Case on Appeal at 362.
It follows that the jury could well have taken this first “route”, resulting in different but consistent verdicts in respect of the two defendants.
As to the second “route” by which the jury could have found the appellant guilty, Mr Nicholls said this to the jury in his closing:
The second route is really going to be the focus of your attention, I think. The second route by which the Crown can show that possibly that she’s guilty of wounding with intent to cause grievous bodily harm by assisting the men to wound Mr Pamata-Feo is if she in fact stomped him in the head when he was on the ground and that had to be part of a continuing attack against him.
Mr Nicholls’ appeal points in respect of this second ‘route’ were again those he urged on the jury. The first was identification; the jury could not be sure the woman who stomped on Mr Pamata’s head was the appellant. Mr Nicholls suggested to the jury that the result of all the evidence was that a “swirling picture is emerging of confusion”.[15]
[15]Case on Appeal at 386.
However, Mr Nicholls’ attempts in the course of a lengthy and repetitive cross-examination of Mr Avega made no impact on his identification of the appellant as one of the two women who had chased Mr Lealaogata away, and as the woman who had then come back and stomped – twice – on Mr Pamata as he lay on the ground. The cross-examination included these exchanges:[16]
[16]NOE at 100/27–30; 110/6–8; (and in the cross-examination of Ms Elder for the co-accused) 117/18–25; 120/15–21.
QAnd so I’m suggesting to you the only mistake, I’m not saying you’re an honest man, but the mistake that you’ve made is pointing out my client in that photo montage when it’s not the woman?
AIt was her.
…
QThe woman that you did see in that photograph was 21 or 22, it wasn’t my client.
AYes it was.
…
QAnd that’s the girl that you say you saw stomping –
AYes.
Q— on the victim’s head –
AYes.
Q— later on that night?
ALater on that night.
QAnd you’re absolutely sure about that aren’t you?
AYes I am.
…
QAnd you’re absolutely sure that this woman in these photographs chatting you up –
A- yes.
QThat’s the girl that kicked the head of the victim?
AYes.
QNobody else?
ANobody else.
In closing to the jury Mr Nicholls put his second point in the following way:[17]
The next issue that you have to consider is whether she did that as part of a continuing assault or a joint enterprise or an act done with the intention of assisting the men wound this guy, or was it a completely separate incident? … So unless it’s part of the, unless it’s done with the intention of assisting or helping the men wound him, the charge has to fail. If you think, well, this happened right at the end – sorry, this happened well after the men had finished and, really, it was its own separate incident and it had nothing to do with, it wasn’t done with the intention of helping the men wound the guy, the charge must fail because it can’t be proved that the chubby woman wounded him, it’s got to be done to assist or help. …
[17]Case on Appeal at 387.
The critical pieces of evidence on this aspect came from Mr Avega and the other doorman Mr Manupule Kini. Mr Kini’s statement was read to the jury by consent – he was not available for cross-examination. He stated:[18]
… I saw the boy fall down to the ground. … The other two boys jumped in and both of them were going non stop punching him. … They two were kneeling over the guys head and just punching with both hands. … They were punching him really hard. I think the guy on the ground was gone and knocked out, he couldn’t fight back. Both of the boys stood up and started using their boots on his face. They were using the heel of their boots and stomping on his face. They were also doing kicks to his head. The guy on the ground was kicked to the head about nine times in total. He was just lying there not able to do anything about it. … While this was happening I was trying to get over to him as fast as I could. I was walking fast. From my car to where this was happening it took me under 10 seconds. Before I got there one of the girl walked over to the guy and stomped on his face. I think this was once or twice. I yelled at her to get away cause that was enough. She walked away before I could get there. …
[18]Case on Appeal at 145d–145e.
Mr Avega’s evidence-in-chief included the following:[19]
[19]NOE at 75/26–76/6.
QAnd you’ve said that one of the girls came over and kicked him?
AYeah, started kicking him while he was out cold.
QWhere was she kicking him, what part of his body?
AHis face.
QHow was she kicking him?
ALike stomping.
QWhich part of his body was she stomping?
AOn his face.
QAnd how many times did you see her stomping?
AProbably about four, five times.
QWas the Samoan boy saying anything or doing anything –
ANo.
Q– while that was happening?
AAnd then she did it again when they were leaving. They were all running to the carpark, she went back and kicked him some more.
And:[20]
Q… what happened next? Where did everybody go?
AWell the girls told, told those guys (inaudible 16:44:31) that the cops are coming and the guys who are leaving they are walking away again and yeah that girl with the black hair came back and stomped him some more.
[20]NOE at 77/25–30.
In cross-examination there was this:[21]
QShe came back after the Mongrel Mob guys had gone?
AYeah, no, no, the Mongrel – while the Mongie was talking to the guy in the van, yes she was stomping on him.
QShe was the only one, wasn’t she?
AYes.
…
QBut when the, when the young man on the ground was getting his head kicked in, it was only this girl that was anywhere near him, correct?
AYes.
[21]NOE at 126/14–18 and 30–33.
In the appellant’s evidence in chief there was this exchange:[22]
QWhen – right, when you went back to the car, where was Mr Lealaogata, the guy that you’d chased?
AI don’t know. I don’t remember him coming back.
QWhere was Mr Pamata-Feo when you got back to the car?
AHe was still fighting. This all happened fast, like.
QWhat did you do once you got back to the car, did you get in or not?
AI grabbed my niece from the van and I bought her back to the car.
[22]NOE at 263/32–264/4.
Under cross-examination the appellant accepted that everyone had left the scene at the same time:[23]
[23]NOE at 311/25–28.
QAnd then as everybody decided that the police were coming, you went to leave the scene? When you found out that the police were coming everybody decided to leave didn’t they?
AWe all left the same – because of what had happened.
And:[24]
QAnd you left the scene?
AYes.
QIn a hurry?
AYes.
[24]NOE at 313/16–19.
This evidence amply supports the jury’s verdict of guilty, if reached by the second ‘route’ outlined by Mr Nicholls.
This second ground of appeal against conviction is not made out.
Sentence
The basis for the appeal against sentence is that the Judge failed to factor in:
(a)the conflicting evidence about the number of stomps on Mr Pamata and their force; and
(b)the fact that the victim, Mr Pamata, initiated the fight.
In his sentencing remarks to the appellant Judge Tuohy said:[25]
… I am satisfied that [the jury] they accepted the evidence of the doorman, Mr Avega about your involvement in actually stomping the victim’s face while he was unconscious on the ground. You did that about four or five times, according to him and then went back and kicked him some more. It has to be said that those were brutal and cowardly actions. The effect on the victim has been pretty severe.
[25]R v Tahitangatatarei DC Wellington CRI-2011-091-4271, 7 December 2012 at [4].
While that passage accurately described what Mr Avega said, it rather overlooks that Mr Kini stated that he thought there were only one or two stomps and Mr Lealaogata described the appellant “just giving a couple of kicks to the head”. Mr Nicholls also pointed out that Mr Avega, in his 1 October 2011 statement to the police, had stated “they [the appellant’s stomps] weren’t that hard but he couldn’t defend himself”.
However, the point is that Mr Nicholls’ submission overlooks that the Judge sentenced the appellant on the basis that she was a party to an attack on Mr Pamata that had these aggravating features:
a number of attackers against a single victim;
blows to the head; and
grievous bodily harm caused, which may have lasting affect.
The Judge appears to have placed the appellant’s offending in band one of this Court’s guideline decision in R v Taueki.[26]Band one has sentencing starting points in the range three to six years. The Judge took a starting point of four and a half years, although he noted that this Court in Taueki had said:[27]
… On the other hand, where the attack features the use of a weapon or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting affect on the victim.
[26]R v Taueki [2005] 3 NZLR 372 (CA).
[27]At [14], citing R v Taueki, above n 26, at [37].
Having regard to both the appellant’s own actions, and her role as a party to the more serious injuries inflicted by the men, the Judge’s sentencing starting point of four and a half years imprisonment was within the available range.
On the second aspect of the sentence appeal, Mr Nicholls argued that Mr Pamata’s willingness to engage in a street fight and accept the challenge of it played a part. But for that part, the fight may never have happened and the appellant would not have “mindlessly joined in”.[28] Mr Nicholls argued that a further discount of about three months could have been given for that.
[28]The Judge’s words at [12] of his sentencing remarks.
We altogether reject that submission. Mr Pamata had invited a one-on-one fight. When he began to win that fight a second Mongrel Mob man joined in. Meanwhile the appellant was one of two women busy ensuring that the fight could not become a two-on-two fight. Her actions in stomping on Mr Pamata on the ground effectively made the fight three-on-one, although by that stage the “one” was lying unconscious and defenceless on the ground.
This second point on appeal against sentence has not a skerrick of merit.
Result
None of the grounds of appeal against conviction have succeeded. Nor have any of the grounds of appeal against sentence.
Accordingly the appeal is dismissed.
Solicitors:
Chris Nicholls, Lower Hutt for Appellant
Crown Law Office, Wellington for Respondent