Tauvira v The Queen - [2016] NZCA 559

IN THE COURT OF APPEAL OF NEW ZEALAND

CA428/2015
[2016] NZCA 559

BETWEEN	TAUVIRA TAUVIRA Appellant
AND	THE QUEEN Respondent

CA512/2015
BETWEEN	PAUL DESMOND CLOKE Appellant
AND	THE QUEEN Respondent

Hearing:	6 September 2016
Court:	Miller, Courtney and Woodhouse JJ
Counsel:	B J Meyer for Appellant Tauvira M E Goodwin and S M Kilian for Appellant Cloke I R Murray for Respondent R K Francois for witness Fruean
Judgment:	29 November 2016 at 3.30 pm

JUDGMENT OF THE COURT

AMr Tauvira’s appeal against conviction is dismissed.
BMr Cloke’s application for an extension of time to appeal is granted.
CMr Cloke’s application to adduce fresh evidence on appeal is declined.
DMr Cloke’s appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woodhouse J)

The appellants, Tauvira Tauvira and Paul Cloke, together with Cruz Fruean and Thomas Campbell, were convicted following a jury trial at the Auckland District Court before Judge Fraser, each on one charge of injuring with intent to cause grievous bodily harm. Mr Tauvira and Mr Cloke appeal against their convictions.
At the hearing of the appeal Mr Tauvira abandoned his appeal. As such, we do not address his appeal further.
Mr Cloke’s single point on appeal is that there is new evidence from Mr Fruean, which is said to exculpate Mr Cloke. Mr Cloke seeks leave to adduce Mr Fruean’s evidence on the appeal together with evidence from himself. He contends that Mr Fruean’s evidence warrants an order setting aside his conviction and a new trial.

Appeal out of time

Mr Cloke’s appeal was out of time. There was no objection from the Crown to an extension. We grant an extension of time to appeal.

Background facts

In December 2013 Messrs Cloke, Tauvira, Fruean and Campbell, together with Johnson Taoho and the victim of the assault, Michael Haenga, were the six prisoners in a secure wing at Auckland Prison in Paremoremo. They occupied adjoining cells. They were allowed out of their cells for one hour during the morning and a further hour during the afternoon. During these exercise periods they were free to move along the landing outside the cells, and in and out of the six cells, but they could not leave the wing and other prisoners could not come in.
On 4 December 2013 corrections officers discovered that Mr Haenga had been badly beaten. He was discovered in his cell when officers were locking up the prisoners after the afternoon exercise hour. Mr Haenga’s face and scalp were extensively swollen. He had suffered a number of other injuries as well. Before the afternoon exercise hour Mr Haenga had been seen without injuries.
Messrs Cloke, Tauvira, Fruean, Campbell and Taoho were charged with the assault. Mr Taoho was subsequently discharged pursuant to s 147 of the Criminal Procedure Act 2011.[1] The Crown case was that the four men were guilty either as principals or as parties under s 66(1) or s 66(2) of the Crimes Act 1961.
[1]Mr Taoho failed to appear…

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 Tauvira v The Queen

Details

AGLC: Tauvira v The Queen [2016] NZCA 559
Case: [2016] NZCA 559
Decision Date: 29 November 2016

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellants, Tauvira Tauvira and Paul Desmond Cloke, appeal against their convictions for injuring with intent to cause grievous bodily harm. The Court dismisses Mr Tauvira's appeal and grants Mr Cloke an extension of time to appeal, but declines his application to adduce fresh evidence on appeal. The Court also dismisses Mr Cloke's appeal against conviction.

The legal issues in this case revolve around the credibility, freshness, and cogency of the fresh evidence presented by Mr Fruean and Mr Cloke, which they sought to introduce on appeal. The Court finds that Mr Fruean's evidence is not credible due to his unconvincing explanation for his willingness to give evidence, as well as evidence of collusion between his gang and Mr Cloke's. The Court also finds that Mr Cloke's affirmation evidence is not credible, as it is self-serving and carefully calculated.

The Court concludes that the evidence is not fresh, as Mr Cloke must have been aware of the possible evidence that could be given by Mr Fruean at the time of the trial. Furthermore, the Court finds that the evidence is not cogent, as even if it had been heard by a jury, it would not have affected the guilty verdict against Mr Cloke. The extent of the observable interactions between Mr Cloke and the other four prisoners, other than the victim, clearly implicate Mr Cloke as a party to the assault, regardless of whether Mr Fruean acted alone or in self-defence.

As a result, Mr Tauvira's appeal against conviction is dismissed, Mr Cloke is granted an extension of time to appeal, his application to adduce fresh evidence on appeal is declined, and his appeal against conviction is dismissed.

Orders