Tahuri v R

Case [2013] NZCA 254

IN THE COURT OF APPEAL OF NEW ZEALAND
CA446/2012
[2013] NZCA 254
BETWEEN

TERRENCE WHETUMOANA TAHURI
Appellant

AND

THE QUEEN
Respondent
Hearing:

10 June 2013

Court:

Randerson, Courtney and Dobson JJ

Counsel:

R A A Weir for Appellant
J M Jelas for Respondent

Judgment:

24 June 2013 at 10:00am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

  1. At the conclusion of a jury trial in the High Court at Gisborne on 31 May 2012 before Rodney Hansen J, Mr Tahuri was found guilty of a charge of wounding with intent to cause grievous bodily harm.  On 20 July 2012, Mr Tahuri was sentenced on that conviction to a term of nine and a half years’ imprisonment.  Mr Tahuri appeals both his conviction and the sentence imposed.

  2. In February 2011, Mr Tahuri and his partner, Ms Duncan, were living together in a house in suburban Wairoa.  Mr Tahuri and other members of his family were patched members of, or at least had close links with, the Black Power gang.  The occupants of the house next door included a patched member of the Mongrel Mob gang, Mr Ruawai. 

  3. Between 7am and 8am on 13 February 2011, Mr Ruawai returned home, accompanied by three other Mongrel Mob members, having attended a party at the Mongrel Mob headquarters in Wairoa.  The Crown case was that Messrs Tahuri and Ruawai argued from their respective sides of the fence between the properties.  It said that a vehicle owned by Ms Duncan left Mr Tahuri’s property for a short time, then returned, after which Mr Tahuri appeared in the driveway of their house carrying a shotgun.  Mr Tahuri was observed firing two shots in quick succession towards the neighbouring house, wounding one of Mr Ruawai’s associates, Mr Hubbard.  The doctor who treated him said the wound was consistent with a close-range shotgun blast.

  4. Mr Hubbard sustained a serious injury to his right shoulder.  Some 84 shotgun pellets were removed, and surgery, including skin grafts, was required.  The victim was left with on-going pain, it being estimated that up to 100 shotgun pellets could not be removed surgically and remain in his shoulder.

  5. Mr Tahuri and Ms Duncan were observed leaving the property shortly after the shooting.  The police subsequently reconstructed text messages from Ms Duncan’s phone, which suggested that the pair had taken refuge in Frasertown, a settlement a short distance from Wairoa.  The content of the text messages suggested that the pair were aware that the police were at the scene of the shooting in Wairoa.  Ms Duncan surrendered herself to the police the following day and Mr Tahuri followed suit the day thereafter.  They both admitted being at the property at the time of the shooting, but denied involvement in it. 

  6. Ms Duncan was charged with being an accessory after the fact in relation to Mr Tahuri’s offending.  She was also found guilty at trial and has subsequently appealed both her conviction…

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Tahuri v R [2013] NZCA 254
Case
[2013] NZCA 254
Decision Date

CaseChat Overview and Summary

In the case of Tahuri v R, the appellant, Tahuri, appealed against his conviction for shooting with intent to murder. The primary legal issue before the court was whether the visual identification evidence provided by witnesses A and B was admissible under the Evidence Act 2006, and if not, whether the introduction of that evidence led to a miscarriage of justice. The court was required to determine the admissibility of the identification evidence given that no formal identification procedure was followed by the police, as mandated by section 45 of the Act. Furthermore, the court had to consider the constraints imposed by anonymity orders on the cross-examination of the witnesses, particularly regarding their knowledge of the appellant and their vantage points during the incident.

The court examined the Crown's concession that the defence lawyer's analysis of the applicability of section 45(4)(e) of the Act was incorrect, as the witnesses had only provided statements identifying the appellant as the shooter rather than pointing him out to the police. Despite this concession, the Crown argued that other reasons existed for not following a formal identification procedure. The court assessed whether the absence of a formal procedure rendered the identification evidence inadmissible and, if so, whether this inadmissibility resulted in a miscarriage of justice. The court also considered the constraints on cross-examination imposed by the anonymity orders, which limited the ability to challenge the precise details of how the witnesses knew the appellant and their locations during the shooting.

In its reasoning, the court concluded that the failure to follow a formal identification procedure did not necessarily render the identification evidence inadmissible if other good reasons existed, as per section 45 of the Act. The court found that the Crown had not successfully demonstrated that the circumstances in which the identification was made produced a reliable identification, thus deeming the evidence inadmissible. However, the court determined that the inadmissibility of this evidence did not result in a miscarriage of justice, given the strength of the other evidence presented against the appellant. The court also noted the constraints on cross-examination due to the anonymity orders, but found that these constraints did not undermine the overall reliability of the trial outcome.

The court upheld the appellant's conviction, affirming that despite the inadmissibility of the identification evidence, the remaining evidence was sufficient to support the verdict. The anonymity orders and the constraints they imposed on cross-examination did not prejudice the appellant's right to a fair trial. Therefore, the appeal was dismissed, and the conviction was maintained.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant criticism (implicitly assuming that an anonymity order was appropriate, irrespective of whether it had been opposed or not) was Ms Verry’s failure to pursue a pre-trial challenge to the admissibility of the identification evidence of witnesses A and B. In particular, Ms Verry failed to challenge admissibility in circumstances where the police had not conducted any formal identification procedure to ensure that the evidence from the witnesses complied with the requirements of s 45 of the Evidence Act 2006 (the Act). In part, s 45 provides: 45 Admissibility of visual identification evidence (1)If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.(2)If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.[...] Thereafter, s 45(3) prescribes the elements required for a formal procedure under the section, and s 45(4) enumerates a non-exhaustive list of good reasons for not following a formal procedure. Ms Verry took the view that the police had good reason under s 45(4)(e) for not following a formal procedure because witnesses A and B had identified the shooter to the police soon afterwards. For the purposes of the appeal, the Crown conceded that Ms Verry was mistaken in her analysis of the application of s 45(4)(e) since the witnesses had simply provided statements to the police identifying Mr Tahuri as the shooter. They had not actually pointed Mr Tahuri out to the police. However, Ms Jelas for the Crown submitted that there were other grounds for concluding there was good reason not to conduct a formal procedure. Given that Crown concession, the issue on appeal is whether the evidence of witnesses A and B was admissible and, if not, whether the introduction of that evidence gave rise to a miscarriage of justice. The anonymity orders made in relation to the evidence of witnesses A and B justified reasonable constraints on the cross-examination that could be undertaken in relation to how the witnesses knew Mr Tahuri, and the point from which they observed him at the time of the shooting. At trial, the Judge resolved with counsel the extent of constraints on cross-examination that were required to protect their anonymity. The most immediate detail that was not able to be challenged was the precise location from which each witness observed the shooting. It can also be assumed that, in the context of a voir dire, the Judge would consistently have disallowed any detailed questioning of the context in which those witnesses knew Mr Tahuri, so that cross-examination on that point could not go beyond generalised questions as to the length of time the witness had known the accused.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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