Te Tomo v The Queen - [2017] NZCA 338

IN THE COURT OF APPEAL OF NEW ZEALAND

CA455/2016
[2017] NZCA 338

BETWEEN	TYSON-TAINUI RUKUWAI TE TOMO Appellant
AND	THE QUEEN Respondent

Hearing:	27 July 2017
Court:	Winkelmann, Brewer and Peters JJ
Counsel:	W C Pyke for Appellant M J Lillico for Respondent
Judgment:	8 August 2017 at 10.30 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
BThe appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Winkelmann J)

The appellant, Mr Te Tomo, was convicted following a trial at the High Court at Hamilton before Hinton J and a jury on one charge of murder. He appeals against his conviction on the grounds that the issue of self-defence was not put to the jury and a miscarriage of justice has therefore occurred.
Mr Te Tomo requires an extension of time to appeal. His delay in filing his notice of appeal has been adequately explained and the Crown does not oppose an extension. In these circumstances an extension is granted.

Factual background

In the late afternoon of 20 February 2015 the 17-year-old Mr Te Tomo and his associate, Mr Williams, were at an address in Hamilton. The victim Mr Thompson, then in his late 20s, and his friend, Mr Apanui, were visiting the next‑door property. Mr Te Tomo and Mr Williams were affiliated to the Mongrel Mob gang, Mr Thompson and Mr Apanui to the Black Power gang.
We take the narrative that follows from Mr Te Tomo’s evidence. Mr Te Tomo was inside his home packing to go to a tangi when he looked out the window and saw Mr Williams talking to Mr Thompson and Mr Apanui. He heard yelling and went outside. Mr Apanui and Mr Thompson were sitting in Mr Apanui’s car. Mr Te Tomo saw Mr Thompson trying to reach out, grab and punch Mr Williams. The car window smashed, and Mr Apanui and Mr Thompson jumped out of the car. Mr Thompson was aggressive, saying “You fucking smash my window you cunt, now you’re going to get it”. Mr Te Tomo saw that both men were very big in their build and older than he and his friend Mr Williams. Because the men were screaming that they were going to “fuck us up”, Mr Te Tomo thought he would go inside and get a weapon to try and scare them off.
Mr Te Tomo went back inside and grabbed Mr Williams’ unloaded sawn-off slug gun. He took it outside intending to use it to chase the two men off the property. He said “I actually thought in my head that maybe [Mr Thompson] would, he would you know just get in his car and go. We were only fuckin little kids, what are they doing?” Mr Te Tomo pulled his bandanna up over his lip to make himself look more intimidating and less boyish. He shouted at the men that they had to go, trying to do so in an intimidating manner. Mr Thompson responded “[f]ucking…

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 Te Tomo v The Queen

Details

AGLC: Te Tomo v The Queen [2017] NZCA 338
Case: [2017] NZCA 338
Decision Date: 8 August 2017 at 10.30 am

CaseChat Overview and Summary

Tyson-Tainawai Rukuwai Te Tomo appeals against his conviction for murder, arguing that the trial judge failed to direct the jury on the issue of self-defence, resulting in a miscarriage of justice. Te Tomo claims that he acted in self-defence when he shot the deceased, Mr Thompson, and that the lack of direction on self-defence led to his conviction. The Court of Appeal was required to determine whether the trial judge erred in not directing the jury on self-defence and whether such an error constituted a miscarriage of justice warranting the appeal's allowance.

The Court of Appeal considered whether there was a credible narrative to support the defence of self-defence, which would have obliged the trial judge to direct the jury on this defence. The court found that Te Tomo's evidence did not establish an imminent threat to his life or the lives of his friends. The physical aggression primarily came from Te Tomo's friend, Mr Williams, and there was no evidence that Mr Thompson posed an immediate danger. Furthermore, the house provided a safe haven, and there was no indication that Te Tomo believed he had to use the firearm to prevent harm to himself or others. The court concluded that there was no credible narrative that Te Tomo acted in self-defence, and thus the trial judge did not err in not directing the jury on this defence.

The Court of Appeal granted Te Tomo an extension of time to appeal but dismissed the appeal against conviction. The court held that the trial judge was correct not to direct the jury on self-defence, as there was no credible narrative to support such a defence under section 48 of the Crimes Act 1961.

Orders