Tekira v Police

[2014] NZHC 700

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-88 [2014] NZHC 700

BETWEEN	LEE REWI SAMUEL TEKIRA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	25 March 2014
Appearances:	J K Mahuta-Coyle for the applicant M Ferrier for the respondent
Judgment:	8 April 2014

JUDGMENT OF CLIFFORD J

Introduction

[1]      The appellant, Mr Tekira, was convicted of burglary on 7 June 2013 by Judge

Butler in the District Court at Lower Hutt following a defended hearing before the

judge alone.1

Mr Tekira now seeks to appeal, out of time, against that conviction.

Mr Tekira identifies three errors:

(a)       the Judge failed to give reasons for disbelieving Mr Tekira;

(b)      the Judge failed to follow the tripartite direction; and

(c)       the Judge failed to bear in mind the need for caution when considering identification evidence.

These errors, Mr Tekira argues, either in combination or alone led to a miscarriage of justice that necessitates his conviction being set aside.

1      Police v Tekira DC Hutt Valley, CRI-2013-096-0233, 7 June 2013.

Leave

[2]      Mr Tekira was sentenced on 17 July 2013.  In terms of s 116 of the Summary

Proceedings Act 1957, any appeal against that conviction was to be filed within

28 days of that date.  Mr Tekira’s notice of appeal was not filed until 9 October 2014. Mr Tekira had, it appears, earlier written to the Legal Aid Services advising of his wish to appeal.  The Crown took no issue with leave being granted to Mr Tekira to appeal.  In those circumstances, I grant leave.

Facts

[3]      On the afternoon of 26 September 2012 an intruder entered a flat in Petone through an open garage door.  The occupier of the flat returned to find the intruder in his bedroom standing by his bed.  A conversation ensued, followed by a struggle in which  the  occupant  attempted  to  call  the  police  and  prevent  the  intruder  from leaving.  The struggle moved to the occupant’s driveway, the intruder’s hoodie was removed and his clothing ripped revealing a Mongrel Mob tattoo on his chest and arm. The intruder then escaped.

[4]      The occupant of the flat gave a general description of the intruder.  About a month after the incident, the occupant of the flat identified Mr Tekira from a police photo  montage,  although  he  did  not  express  100  per  cent  certainty  at  his identification.

[5]      The  hoodie  which  was  left  at  the  scene  was  subject  to  DNA  analysis. Mr Tekira voluntarily provided a DNA sample.

[6]      The ESR report advised that a mixed DNA profile had been obtained from the hoodie, that the most likely number of contributors of DNA was three and that the majority of the DNA in the sample could have originated from Mr Tekira.  The likelihood of obtaining those DNA results was at least three thousand million million

(3  x  1015)  times  greater  if  the  DNA originated  from  Mr Tekira  and  two  other

individuals rather than from three individuals, unrelated to Mr Tekira and each other selected at random from the New Zealand population.  Put into words, that statistic meant that the DNA evidence provided extremely strong scientific support for the

proposition that the DNA recovered from the hoodie originated from Mr Tekira and two other unrelated individuals.

[7]      Mr Tekira pleaded not guilty when charged with this burglary.

[8]      At Mr Tekira’s trial the occupant of the burgled premises was the principal witness for the Crown.  He gave evidence of the burglary and of his involvement in the subsequent police investigation.   Police evidence was also given of that investigation, including the key elements of the photo montage, a police interview with Mr Tekira and the DNA evidence.

[9]      Mr Tekira himself gave evidence, denying any involvement in the incident and providing an exculpatory narrative of his movements on the day.

[10]     As Mr Mahuta-Coyle for Mr Tekira acknowledged when arguing this appeal, it is convenient to consider Mr Tekira’s first and second grounds of appeal together. They both focus on the Judge’s failure to expressly turn his mind to, and reject with reasons, Mr Tekira’s evidence.   I will consider those matters first, and then the Judge’s treatment of the identification evidence.

Treatment of Mr Tekira’s evidence

Case on Appeal

[11]     Mr Tekira argues  that  the trial  judge erred  in  failing to  give reasons  for ignoring his evidence.  Mr Tekira had put his credibility in issue by giving evidence and the trial Judge was required to make a finding about his evidence and give reasons for that finding.   Mr Tekira also argues that the trial Judge misdirected himself by failing to follow the tripartite process of reasoning required where a defendant  gives evidence.   That is, the trial Judge did not consider Mr Tekira’s evidence in isolation, then acquit or put the evidence aside as not credible before turning to the prosecution evidence.   Rather, the Judge went straight to a consideration of the prosecution evidence.

[12]     The Crown argues that this was not a case where reasons for disbelieving the defendant could be sensibly articulated, other than that this was a necessary implication of finding the prosecution evidence established the case beyond reasonable doubt.  Similarly, a tripartite direction was not necessary and is inapt to the circumstances.  Mr Tekira’s claim, absent any support or corroboration, that he was elsewhere at the time of the burglary could not be assessed in isolation – the effect of his evidence was no more than to put the prosecution to proof.  The trial Judge was required to, and did, assess whether the prosecution evidence proved the case beyond reasonable doubt, the appellant’s denial notwithstanding.

[13]     Mr Mahuta-Coyle relied on various statements of the High Court that reasons for rejecting the evidence of a witness should ordinarily be given.

[14]     In Taiatini v Police, Winkelmann J observed that:2

Where credibility is in issue, the presiding Judge should ordinarily give reasons for rejecting the evidence of a witness whose evidence is material to the outcome: Takarei v Police (HC Hamilton AP77/02, 22 November 2002, Randerson J).  The extent of reasoning required will vary between cases, but the reasons given should be “adequate to the occasion”: R v Awatere [1982]

1 NZLR 644,649 (CA). It must not be overlooked that Judges, in particular District Court Judges operate under time constraints and in circumstances which usually require oral decisions to be given at the conclusion of the evidence: Kapa v Police (1989) 4 CRNZ 306.  Further, there are difficulties in articulating reasons for a credibility finding “which is based principally upon an exercise in judgment borne of experience, knowledge of human behaviour, and the evaluative process”.   (Jai Ram Sharma v New Zealand Police, HC Auckland, CRI 2005-404-0235).  Nevertheless, as Randerson J said in Takarei at [14]:

…some brief reasons for rejecting the evidence of a key witness should be given.

[15]     Particular reliance was placed on the judgment of Ronald Young J in Wilkie v

Police.3

Wilkie was an appeal against conviction.   Two competing narratives had

been given at trial.  The trial Judge had accepted one version of events, and rejected the other.  He said he found one witness to be a witness of truth, and not the other.  In

finding that the Judge’s reasons were inadequate, Ronald Young J put the position in the following terms:4

In a case such as this where the only two witnesses to the relevant events have quite different stories to tell about the essential issue, I consider it is part of the obligations of a Judge to say why he or she rejects a defendant’s evidence (if that is the case) as untrue. This is the obligation to ensure that the reasons given are “adequate to the occasion”.

The Judge’s analysis

[16]     How did the Judge go about his task?  Having reminded himself of the onus and standard of proof, the Judge first outlined the Crown evidence.   He then summarised Mr Tekira’s evidence. As he put it:5

Mr Tekira gave evidence although, as I have said, not obliged to do so.  He said the day before the incident in September 2012, that is to say on 25

September, he travelled to Wellington by a bus from Hastings, arrived in

Wellington at about four to 5.00 pm.  He was picked up from the station by relatives and went to their house in Hardham Crescent, Petone, and initially

stayed there for some two to three hours.  The next day, the 26th, he went to

the gym to sign up, he was there with his cousin.  He, following being signed up at the gym, went back to Hardham Crescent, went to his neighbour’s, and

then later went to an address in Croft Grove, Moera.   He was wearing

clothes that he had borrowed from his neighbours because he did not have many clothes of his own.   He said he borrowed a red t-shirt, pants, and a blackish, greyish hoodie from his neighbour.  He went to the gym with some six other associates.

When they went to Moera, he said they went to a pub there, a fish and chip shop, and a boarding house.  He met some people in that locality and then went back to the Croft Grove address.  He left there about 9.00 pm to 10.00 pm and went back to the Hardham Crescent property where he stayed at his uncle’s.  He stayed, he said, for a few days and cruised around the gym, Petone, and the Croft Grove address.   He went and ultimately returned to Hastings.  He denied being involved with the burglary.

[17]    Having recorded his summary of the evidence, the Judge then turned to assessing whether the Crown had proved its case beyond reasonable doubt.

[18]     In  undertaking  that  exercise  the  Judge  first  noted  that  the  case  against

Mr Tekira  was  circumstantial  and  correctly  recorded  how  he  should  assess  the

evidence.  He reminded himself that the ultimate question was whether he was satisfied beyond reasonable doubt that the intruder was the defendant.

[19]    The Judge then considered each strand of the prosecution evidence.  The prosecution’s strands were that the burglary was committed by a Mongrel Mob member and the defendant was associated with the Mongrel Mob, the defendant left a strong DNA trace on the hoodie left at the scene by the burglar and the defendant was picked out of a montage by the complainant (although not with certainty) and

matched the general description given by the complainant.6

[20]     The Judge then considered the circumstances that favoured the defence.7

Those factors were that there are a lot of Mongrel Mob members in the area, that at least two others had worn the hoodie left at the scene, that many Mongrel Mob members  or  associates  have  tattoos  on  their  chest  or  body,  that  the  general description given by the complainant matches many people; and that the defendant

had volunteered a DNA sample for analysis.8

[21]     The Judge then concluded that, while none of the prosecution factors were in themselves conclusive, together they led to a conclusion beyond reasonable doubt that the intruder was Mr Tekira.9

[22]     As  can  be  seen,  the  Judge  did  not  give  express  reasons  for  rejecting Mr Tekira’s evidence and did not consider the validity of that evidence in isolation or remind himself of the substance of the tripartite direction.10

[23]     This  Court  has  recognised  that  the  absence  of  reasons  for  rejecting  an

appellant’s evidence will not mean appellate intervention is required.11

Likewise, a

tripartite direction is not always necessary in a jury trial and its absence will only lead to a miscarriage of justice where there is a real risk of the jury misunderstanding

the onus on the prosecution and the need to prove the charges beyond a reasonable

6      At [18]-[19].

7 At [20].

8 At [20].

9 At [21].

10 At [20].

11     Peneha v Police [2012] NZHC 2554 at [18]; Kane v Police HC Christchurch CRI-2004-409-

0049, 4 November 2004 at [8].

doubt.12   Where the fact-finder is a Judge alone, moreover, it is not necessary for the

fact-finder to remind themself about the criminal onus.13

Where a trial judge has

clearly recognised this it will not be an error to fail to adopt a triparte process of reasoning.

[24]     The obligation on judges to provide reasons for their decisions generally was discussed by the Court of Appeal in R v Awatere.14   That case concerned an appeal against  a  District  Court  decision  where  there  were  competing  narratives  of  the central facts, as between police witnesses and the accused, and where the evidence of the accused was supported by further witnesses.  Having considered a range of authorities, the Court of Appeal concluded that whilst there was no universal rule

requiring reasons for a decision, it was always good judicial practice to provide a reasoned decision. The Court concluded:15

Nonetheless, Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate  to  the  occasion.  Indeed  failure  to  follow  that  normal  judicial practice might well jeopardise the decision on appeal. It could do so because a potential appellant might seem to be unduly prejudiced or it could do so by leaving it open for the appellate Court to infer that there are in fact no adequate reasons to support it and so in either case act more readily than otherwise it would have done to order a rehearing  or to rehear the case itself or to make an order that proper and adequate reasons are to be supplied or even to quash the verdict outright.

[25]     As can be seen, therefore, the provision of reasons ensures that an accused knows why the Court has reached its decision and enables a higher Court on appeal to assess those reasons.

[26]     Where there are competing narratives of the events in question, given by an accused and the police, reasons for accepting one narrative ahead of the other are, as Ronald Young J emphasised in Wilkie, important to ensure that reasons “adequate to

the occasion” are provided.

12     R v MacDonald [2009] NZCA 428, (2009) 24 CRNZ 785 at [30].

13     Lolohea v Police HC Whangarei AP16/01, 19 June 2001 at [15].

14     R v Awatere [1982] 1 NZLR 644 (CA).

15     At 649.

[27]     Whilst the Judge did not give himself a tripartite direction, it is clear that he was well aware that the onus was on the Crown, and that the Crown had to prove the charges beyond reasonable doubt.  The absence of an explicit tripartite direction does not, in my view, raise any prospect of a miscarriage of justice.

[28]     In terms of express reasons for not accepting Mr Tekira’s evidence, here, the Judge  was  not  confronted  by  competing  narratives.    Rather,  on  one  side  was Mr Tekira’s  exculpatory  narrative.     On  the  other  side  were  the  elements  of circumstantial evidence produced by the police.  The Judge, faced with Mr Tekira’s denial of his involvement, assessed the Crown’s evidence to the contrary.   Having done so, the Judge concluded that the Crown had proved beyond reasonable doubt Mr Tekira was the person responsible for the burglary.  That was the obvious reason that the Judge rejected Mr Tekira’s evidence.  It would add nothing of substance to the  Judge’s  decision,  to  its  adequacy  for  informing  Mr Tekira  of  why  he  was convicted or of enabling a Court on appeal to review it, if the Judge had made that very obvious reason explicit.

[29]     Mr Tekira’s challenge to the Judge’s decision on these grounds is therefore dismissed.

The treatment of the identification evidence

Case on appeal

[30]     Mr Tekira also criticises the trial Judge’s failure to expressly record the need for caution when considering identification evidence.

[31]    Section 126 of the Evidence Act 2006 requires the judge, in a criminal proceeding tried with a jury where the case against the defendant depends wholly or substantially on the correctness of identification evidence, to warn the jury of a need for special caution.   Section 46A of the Evidence Act 2006, introduced on 1 July

2013, now provides that:

If evidence of identity is given against the defendant and the defendant disputes that evidence, the court must bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such

identification and, in particular, the possibility that the witness may be mistaken.

[32]     This section is mandatory and it is preferable, but not essential for a Judge to expressly refer to the requirement.16  As Asher J held in Taiala v Police:17

In a case such as this, where the section is not referred to, appellants are entitled to point to that factor, and make the submission that the appropriate caution has not been applied.  The appellate court has to then endeavour to ascertain from the lower court decision, whether the correct approach has been  applied,  and  satisfy  itself  that  there  was  sufficient  identification evidence to support a conviction.

[33]     For   Mr Tekira,   Mr   Mahuta-Coyle   emphasised   the   criticality   of   the identification evidence in the case against his client.  Whilst the DNA evidence narrowed the potential offenders, by itself it could not single out Mr Tekira.   The Mongrel Mob tattoo was common to those associated with the Mongrel Mob and the original, very general, description of Mr Tekira given by the occupant of the flat did not itself provide a basis for conviction.  Care with the identification evidence was, therefore, critical.  The Judge’s failure to explicitly direct himself, in terms of s 46A, gave rise to a real risk of a miscarriage.

[34]     The Crown argues that the identification evidence was not central and was just one piece of the evidence relied upon by the Judge.   Moreover, the Judge implicitly complied with s 46A as he acknowledged that none of the prosecution strands were themselves conclusive and was alive to the possibility the identifier may have been mistaken.

Analysis

[35]     I do not accept the Crown argument that the identification evidence was not central.  In my view, without it the Crown could not have obtained a conviction.

[36]     Having said that, and accepting that it would have been preferable if the Judge had referred to the need to bear caution in mind, by my assessment the Judge’s written verdict shows that he did take appropriate caution when considering the

16     Taiala v Police HC Auckland CRI-2005-404-0292, 18 October 2005 at [23].

17 At [23].

identification evidence.  The Judge noted the occupant’s evidence that the lighting had been good at the time when he saw the intruder.  It had been about 4.30 pm on a September afternoon.  The occupant said he had a good view of the intruder and described his eyesight as “20/20”.  At the same time, the Judge was alive to the possibility that the identification may have been mistaken.  This is demonstrated at [10] and [19] of his reasoning, where he recorded that the occupant was not 100 per cent sure of the photo montage identification.  At [20], the Judge acknowledged the defence argument, that many Mongrel Mob members or associates who match the general description given by the complainant lived in the area.

[37]   The Judge, therefore, carefully assessed the weight to be given to the identification evidence.  Notwithstanding the absence of an explicit reference to the caution required to be taken by s 46A, the Judge did, by my assessment, in fact bear in mind the need for that caution.

[38]     I also, therefore, dismiss Mr Tekira’s challenge to the Judge’s treatment of the identification evidence.

Conclusion

[39]     Mr Tekira’s appeal against his conviction is dismissed.

“Clifford J”

Solicitors:

Public Defence Service, Wellington for the appellant.

The Crown Solicitor, Wellington for the respondent.