The Queen v Alex Mark Tukuafu

[2001] NZCA 437

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

INTHE COURT OF APPEAL OF NEW ZEALAND  CA165/01 CA166/01 CA173/01 CA179/01 CA185/01

THE QUEEN

V

ALEX MARK TUKUAFU PHILLIP WAYNE TUKUAFU

REX BARTHOLOMEW TUKAUFU REECE WILLIAM TUKUAFU LEON TERRENCE WHITE

Hearing:  20 June 2001

Coram:  Blanchard J

Fisher J Potter J

Appearances:  R Wade and S D Patel for Alex Tukuafu P J Kaye for Phillip Tukuafu

M A Edgar and S Tait for Reece Tukuafu R A A Weir for Leon White

A E Kiernan, J C Krebs and S Haszard for Crown

Judgment:  27 June 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]Phillip, Alex and Reece Tukuafu, three brothers, and Leon White seek leave under s379A of the Crimes Act 1961 to appeal against pre-trial rulings. Another brother, Rex, has given notice of abandonment of his appeal and his application is accordingly dismissed. The four brothers and Mr White are currently on trial, along with two further Tukuafu brothers, John and Steven, in the District Court at Auckland on 86 charges of burglary, one of attempted burglary, 30 of conversion of motor vehicles and two of attempted conversion. These charges result from a police investigation known as Operation Bird. The charges cover the period March 1999 to June 2000.

Similar fact evidence

[2]It is alleged that the seven accused, operating as an organised criminal gang, would steal late model vehicles, mostly Ford Falcons, Ford Telstars and Mazda 626’s and, soon afterwards, break and enter a service station, a dairy or a supermarket in an area near where the vehicle had been taken; that they primarily stole cigarettes (in excess of $500,000 in value over the period of the offending) but also liquor, cellphones, phonecards and clothing; and that afterwards the vehicle would be left wholly or largely undamaged either in the same vicinity or near the home of one of the offenders. Car door locks and ignition barrels were not damaged. Hence a key appears to have been used to effect the conversion of the vehicles.

[3]Another distinctive feature of the Operation Bird offending is said to be that the break-ins invariably occurred around dawn; this is said to be unusual as most commercial burglars do not operate at this time of day. The burglars (thought to be usually three in number) would remain in the premises for only a brief time (normally less than 90 seconds), they would ignore the sounding of alarm systems and would often carry the stolen goods away in a wool sack. The favoured method of entry is also said to be a distinctive feature – either jemmying open wooden or aluminium doors or ramming roller doors with the vehicle. Entry was predominantly, but not always, through the front door of the premises. In some

cases more than one burglary was committed on the same night (but always around dawn). A further feature was that some premises were targeted on more than once occasion during the relevant period.

[4]The Crown naturally points to a pattern in this offending in order to link members of the gang with all the burglaries covered by the charges. But it also wishes to call evidence concerning a previous police operation, known as Operation Crystal, which related to an even larger number of burglaries and associated offending occurring from October 1992 to May 1995. That offending is said to have involved a gang consisting of or including members of the Tukuafu family and is said to have had similar distinctive features.

[5]Each of the Tukuafu brothers, other than Steven, pleaded guilty in 1996 to between six and 14 of the Operation Crystal burglaries. The Crown seeks to place before the jury which considers Operation Bird some evidence relating to the 32 Operation Crystal burglaries in respect of which there were guilty pleas, including evidence of those pleas themselves.

[6]The primary issue in the case concerns the identity of those who carried out each burglary. The evidence from the earlier operation is said to be of burglaries exhibiting the same pattern, being offending to which the Tukuafu appellants have confessed by their pleas, and thus highly probative.

[7]In a ruling delivered on 1 May the trial Judge expressed himself as quite satisfied, despite the submissions of counsel for the defendants, that there are “striking similarities” between the burglaries covered by the two police operations. He accepted that the evidence was not identical in all respects. There were some variations. He gave as an example the fact that the preferred vehicles in Operation Crystal were not identical with the preferred vehicles in Operation Bird, although he said that might be due to passage of time. Also, the Judge said, although the burglary targets were very much the same, there was now a greater preference for taking cigarettes than on earlier occasions. He described these variations as a matter of detail which did not and could not detract from what were otherwise

striking similarities.    These were far more than mere coincidence and in the Judge’s view could satisfy the jury that:

1.A number of the accused were the persons involved in the earlier offending.

2.The other conduct exhibited a particular characteristic or pattern.

3.In the conduct charged there is the same characteristic pattern.

4.In the circumstances it is reasonable to draw the inference that the similarities support the allegation that the same persons are involved.

5.When taken in context there does not remain the reasonable possibility that the offender(s) was someone else.

[8]The Judge considered the manner in which the Operation Crystal evidence could be given. He noted that the Judge who had management of that case had given a sentence indication in the event that the Crystal defendants were prepared to plead guilty to a number of the charges. On the basis of the indication, and with some accepting responsibility for a greater number of charges, the pleas of guilty had been entered. This had been done before any depositions hearing so that there was no deposition evidence from witnesses before the Court. The Judge had available only a summary of facts and various charts and schedules attached to it. Defence counsel advised the Judge in the present case that despite the guilty pleas there had never been any formal acceptance of the summary of facts. Counsel contended, as they did before us, that pleas had been entered on a pragmatic basis, as part of a plea bargaining process.

[9]The Judge recorded that counsel for the Crown had indicated that the Crown would be in a position to call evidence as to the Operation Crystal incidents which were the subject of charges. The Judge directed that depositions or briefs of the witnesses it was intended to call in respect of the similar fact evidence, together with copies of exhibits which the Crown might seek to produce, must be in the hands of defence counsel by 21 May 2001.

[10]The argument concerning the significance of the guilty pleas was renewed before the Judge after the empanelling of the jury when he heard what purported to

be a further s344A application. Being made at that time, it was not of course a pre-trial ruling within that section and this Court has no jurisdiction to hear an appeal from it (R v Watson (1999) 16 CRNZ 678). However, as the same issue arises in connection with the question of whether the similar fact evidence from Operation Crystal is admissible in the first place, we now refer to the Judge’s observations on the effect of the guilty pleas. In a ruling of 12 June, he said that where a summary of facts has been prepared and criminal charges have been disposed of in accordance with that usual practice, with disputed facts resolved by evidence called so that the sentencing Judge can make an appropriate finding, then, in all likelihood, a Court in subsequent proceedings would accept the fact that there had been a guilty plea and would accept the evidence as set out in the summary of facts as sufficient for similar fact purposes. But it had been observed in R v Turner (CA60/97, 5 May 1997) that the Court might nevertheless consider it necessary to ascertain the actual relevance of such evidence in a particular case.

[11]This Court had gone on to say in Turner:

The full contents [of the summary of facts] may not be accepted by the accused – there may be matters of significant prejudice to a later trial on other allegations, but which had no or little bearing at the time of original sentencing and were therefore not then challenged.

[12]The Judge said that it was quite clear from the Minute made by the sentencing Judge in Operation Crystal and from his sentencing notes that the accused, other than Rex Tukuafu, would have been fully aware of the nature and consequence of their plea in respect of the selection of charges to which they elected to acknowledge guilt. In his view, the fact that a guilty plea was entered to the charges was inescapable. This did not mean, however, that the full contents of the summary of facts produced or read to the Court was necessarily accepted.

[13]The Judge therefore concluded that it would be preferable in this case for the witnesses to be called. If it became apparent that individual accused were denying their involvement in particular incidents where they had earlier pleaded guilty, then evidence of their admission of guilt could also be led.

[14]Mr Kaye, appearing for Phillip Tukuafu, accepted that in his client’s case the Judge could properly have concluded that there was evidence of a common pattern in the offences investigated in the two police operations to show the striking similarity found by the Judge. He also accepted the prosecution’s table of factual features for Operation Crystal in so far as it related to his client.

[15]He challenged the admissibility of the Operation Crystal evidence on three bases. First, he said, the probative value of the guilty pleas was not as strong as in other circumstances might arise from such pleas. He said that in the particular circumstances the pleas should not be taken as an acceptance of criminal responsibility for the offences in question. His client and the other brothers had merely acquiesced in an overall plea bargain based on their level of culpability as members of the gang without particular regard being paid to culpability for individual offences. As a result, it was said, we do not know which of the Operation Crystal offences Phillip actually committed.

[16]Secondly, Mr Kaye said, there was already a large volume of evidence from Operation Bird itself which could establish the pattern alleged by the Crown. It was therefore unfair, and onerous for the jury, to introduce additional matters from Operation Crystal.

[17]Mr Kaye’s final point was that there was a danger that the jury would impermissibly decide individual counts of Operation Bird by reasoning that, because the group had taken part in Operation Crystal, they were therefore more likely to have been involved in those particular instances of Operation Bird offending. The jury might decide against the defendants upon particular counts because of this admitted general involvement in Operation Bird.

[18]Mr Patel, appearing for Alex Tukuafu, supported these arguments, as did counsel for the other appellants. Mr Patel pointed out particularly that there had been no pleas of guilty in Operation Crystal to charges of conversion of vehicles. He accepted that in two instances of the Operation Crystal offending there was the same pattern as is discernible in the Operation Bird offending, but concentrated his argument on certain differences in other Operation Crystal offences to which Alex

Tukuafu had pleaded guilty. These differences, Mr Patel said, made those incidents dissimilar from the Operation Bird pattern. He noted, for instance, that sometimes the summary of facts for the Operation Crystal offences had not referred to any use of a vehicle, the goods taken were not cigarettes or only one offender appeared to be involved.

[19]We are not persuaded by this analysis that the Judge was plainly wrong in his exercise of discretion to allow the Crown to call evidence of the admitted Operation Crystal offending. Although there were in some cases the differences to which Mr Patel referred us, the necessary pattern is present, as the Judge found. His Honour recognised some differences on occasions but we agree with him that, subject to proof where necessary of the detail of the Operation Crystal offences, there is sufficient similarity with Operation Bird. The similarity gives the proposed evidence a probative value which exceeds the prejudice inherently present because of the existence of the guilty pleas.

[20]The prosecution must still, in accordance with the rulings of the Judge, present evidence to establish the facts of each of the Operation Crystal incidents upon which it wishes to rely. The defendants may wish to challenge the detail of those matters, such as the alleged use of stolen vehicles, on the basis that, in the relatively unusual circumstances in which the guilty pleas came to be entered, it is not to be taken that in so pleading they were accepting that detail. However, the appellants must face the fact that they have accepted by their pleas that they were guilty of the crimes in question as charged in the informations. The guilty pleas identify the current defendants as participants in the Operation Crystal offences to which they so pleaded.

[21]Obviously the fact that the defendants had been prosecuted on an earlier occasion is in itself prejudicial to the present defence, but the prejudice is heavily outweighed by the probative value of the similarities in the admitted offending.

[22]It is quite beside the point that within the evidence pertaining to Operation Bird there may well be material which in itself could prove to be sufficient to establish the guilt of the defendants.  There is no rule of law that merely because the

prosecution may already have a substantial body of evidence against an accused, it is to be debarred from calling further admissible evidence. Subject to the Judge’s overall control of the trial, it is for the prosecution to determine whether it risks a situation in which the jury may possibly be overburdened by the total volume of the evidence.

[23]Earlier instances of offending by members of a group may be admissible to prove offending by that group, or members of it, on later occasions where there is a common pattern. Evidence linking a defendant with a group of offences is admissible against that defendant in respect of another group of offences where the common pattern exists (R v Brown, Wilson, McMillan and McLean [1997] Crim LR 502). In other words, where there is sufficient similarity between two groups of offending, it can be used to prove that the crimes were all committed by members of the same gang. It is still necessary, however, in the case of each individual crime for the prosecution to prove the participation of a particular offender. The jury must be directed, against the background of common gang criminality, if they are satisfied to that extent, that each crime and each alleged offender must be considered separately; that a defendant cannot be convicted of a charge unless on the totality of the evidence the jury is satisfied beyond reasonable doubt of that defendant’s guilt on the particular charge. Mere proof that some members of a gang were the offenders in a particular instance does not suffice as proof of the guilt of a particular gang member. The jury should be reminded that someone may have been a member of a gang during a certain period but may not have continued in membership or, if still associated, may not have participated in the gang’s offending during a particular period, either on a certain occasion or at all.

Video surveillance tapes

[24]The Judge gave a further ruling on 25 May 2001 on an application by the defence for disclosure by the Police of video surveillance tapes relating to two premises. The cameras were situated on private property. The Police were concerned that the occupants of those properties might become the subject of retributive action if the properties were identified. The police officer responsible

for the positioning of the cameras gave evidence to the Court. The Judge records him as explaining that invariably when approaching members of the public and seeking their cooperation to assist police in surveillance activities, certain undertakings and guarantees were required. Another police officer told the Court about the approaches he made to the occupiers of the two properties and said that a turning point in securing their cooperation was to assure them that confidentiality would be maintained and that they would not have any reprisals.

[25]The Judge noted that in R v Johnson [1989] 1 All ER 120 a claim for public interest immunity concerning the location of observation posts had been upheld by the English Court of Appeal on the basis that the withholding of this information at trial had not led to any injustice. The jury had been made aware of the restraints on defence counsel from their inability to test police evidence by reference to distance from events, angle of vision and possible obstructions in the line of sight. The jury had been carefully directed about the very special care that they had to give to any disadvantage that might be suffered by the defence. The Judge referred also to a passage in Johnson in which it was said that the minimum evidential requirements to support immunity were:

[a]Evidence of the officer-in-charge of the observations, not being of lower rank than a Sergeant, as to the attitude of the occupiers of premises prior to observations, and the effects of possible disclosure;

[b]Evidence from an officer of no lower rank than a Chief Inspector as to his having ascertained immediately prior to the trial that the attitude of the occupiers to possible disclosure remained the same.

[26]The Judge was not persuaded that he should adopt the English view, “at least in this case”. He considered the risk from disclosure self evident and said that it could affect not only the occupiers as they may have been at the time of the observations, but also current occupiers, and that the properties could be at risk regardless of the identity of the occupiers. He upheld the Crown’s claim for immunity.

[27]The Judge added that in the few incidents relied on by counsel where the video surveillance tapes could have had some relevance, the Crown have available eye witnesses to give evidence on each occasion. Those eyewitnesses were stationed at different locations to the surveillance cameras. They will be available for cross-examination. The situation therefore differed from Johnson where it was the eyewitnesses themselves who sought not to disclose their location.

[28]The Judge also said that, at best, the video cameras could only have shown movements to and from the two properties. Further, he said, the video footage sought to be disclosed was said to be unclear on account of the darkness or poor light pertaining at the time. The Judge was not persuaded that non-disclosure of video footage could lead to any injustice or that there was any real possibility that it could help show that any of the accused were innocent of the offence in respect of which the observations had relevance.

[29]On behalf of Alex Tukuafu, it was sought to obtain leave to appeal this ruling. Faced with the difficulty that the ruling was on an application for disclosure, which is not a ruling of a kind listed in s379A and in respect of which this Court therefore has no pre-trial jurisdiction, Mr Wade submitted that in reality the defence is putting the Crown to an election concerning the evidence of Detective Constable Drake, the witness who is intended to give evidence of personal observations of one of the premises on a particular occasion. The detective’s brief of evidence contains an identification of Alex Tukuafu removing from a vehicle a large wool sack and, with another person, carrying it into the premises in question. This was said to have occurred at 6.10am on 10 May 2000, i.e in late autumn.

[30]Mr Wade said that if the Crown is not obliged to disclose the video surveillance of the premises covering the time of this event, which counsel called the “best evidence”, it should not be allowed to call the evidence of Detective Drake.

[31]Counsel for the Crown, Mr Haszard, drew attention to the Court’s lack of jurisdiction. That objection must be upheld. The Court has no power to hear an appeal against the Judge’s ruling. There was no s344A application in this instance.

Nevertheless, it may be of assistance if we indicate the view which we formed on hearing the argument, that the “best evidence” objection to Detective Drake’s evidence is misconceived. She would of course be giving first hand evidence of her own observations and will be subject to cross-examination thereon. What the Court will not be seeing, if the Judge’s ruling is maintained at trial, is evidence from another source, namely the video surveillance tape. Since the hearing in the District Court, the Crown has filed an affidavit from the officer-in-charge of Operation Bird, Detective Sergeant Howard, who deposes that at night the usefulness of the particular camera was very limited indeed, and it was because of that limited usefulness that officers were placed in different observation points adjacent to the premises so that better surveillance could take place. Detective Sergeant Howard says that he has viewed the surveillance videotape for the particular time and that it shows only some headlights arriving in the vicinity of the premises and some shadowy movement faintly visible shortly after the headlights were turned off. No registration plate can be seen, the shape and general outline of the car cannot be seen and certainly no persons can be seen.

[32]If the matter is revisited before the trial Judge he can of course take into account the additional information in the affidavit. It would also be open to him, if he thought fit, to view the videotape himself.

Identification evidence

[33]Reece Tukuafu sought leave to appeal a ruling made by the Judge under s344A admitting certain identification evidence against him. This related to a burglary at Pricecutters on 3 February 2000. A Mr Kumar, the owner of a nearby shop, observed a car in the vicinity at 5.30am on that day. His evidence is to the effect that he saw a male standing about 10 metres away from him acting as a lookout for the burglary. It was not until 21 March that Mr Kumar was first interviewed by the police. He gave a statement in which there was a brief description of the person he had seen as a man of dark skin, black hair and unshaven. But he also said that he would be able to recognise the person if he saw him again. The following day he was shown a photoboard containing the photographs of 48 persons, who included

all  of  the Tukuafu brothers.   From this montage Mr Kumar identified Reece Tukuafu as the person he had seen during the burglary.

[34]At the pre-trial application Detective Sergeant Howard gave evidence that the reason why the police had not arranged for an identification parade and had used the photomontage was because Operation Bird was at that time still an ongoing covert operation. It did not terminate until 1 June 2001. He said that, if there had been a request for such a parade, then the suspect, together with others, would have become aware of the nature of the police investigation. The police were also aware that at earlier times the Tukuafu brothers had declined to participate in identification parades.

[35]The Judge found there was good reason for not having an identification parade in the circumstances of the case. Despite the passing of some weeks from the time of the incident to the making of his statement, Mr Kumar was able to give a general description of the offender and had said that he would recognise that person if he saw him again. He had identified Reece Tukuafu from 48 photographs. It had not been suggested that there was anything unfair in the use of the particular photographs: that they were too limited in number or that they were put to Mr Kumar in a manner that was in any way inappropriate. Directing himself in accordance with this Court’s guidance in R v Porima and Wi (1992) 9 CRNZ 368, 372, the Judge ruled that the evidence of Mr Kumar and a detective constable as to the photographic identification should be admitted.

[36]Mr Edgar’s argument to this Court was that the evidence should have been ruled inadmissible because of the time lapse which preceded Mr Kumar’s statement to the police (approximately 6 weeks), the fact that his description had been lacking in any specificity (despite the rider that he could recognise the person), the lack of any opportunity for Reece Tukuafu to engage in an identity parade, either at the time the photo montage was shown to Mr Kumar or when the police operation terminated on 1 June, and the prejudice which will result if the jury becomes aware that Reece Tukuafu has a criminal history (because the jury will see the photomontage and recognise the photographs to be police “mug shots”).

[37]Mr Edgar accepted during oral argument that the first two of these objections, namely the time lapse and the generality of Mr Kumar’s description, are really matters for cross-examination of Mr Kumar and submissions to the jury and do not provide a basis for excluding the photomontage evidence. It seems to us also that the Judge was right to consider that the police had at the relevant time good reason not to prejudice their ongoing investigations by approaching Reece Tukuafu, informing him that they had an identification of him and asking him whether he would participate in an identification parade. Not only would they then have lost the benefit of evidence to be obtained from continuation of the covert operation, but they would, on past history, have been likely to have been met with a refusal. On the other hand, they could have been criticised for delaying the identification process until the end of the operation. They therefore took the reasonable course of using a photomontage. An identification parade could have been requested when the operation came to an end. Again, it would probably have been refused but, in any event, if it had taken place and Mr Kumar had identified Reece Tukuafu, no doubt it would now be said that identification was contaminated by the earlier use of the photomontage.

[38]In view of our confirmation of the Judge’s decision concerning the admissibility of the Operation Crystal evidence, Mr Edgar’s final point, namely the jury’s recognition of the photos as “mug shots”, is of no significance. The jury will already be well aware that Reece Tukuafu has a prior criminal history but will be given instructions concerning the limited use they may make of that fact.

[39]All the applications for leave to appeal are dismissed.

Solicitors:

Crown Solicitor, Auckland