The Queen v Feaunati

[2008] NZCA 560

IN THE COURT OF APPEAL OF NEW ZEALAND

CA258/2008
[2008] NZCA 560

THE QUEEN

v

ISAIA FEAUNATI

Hearing:26 November 2008

Court:Ellen France, Potter and MacKenzie JJ

Counsel:E G T Faleauto and S C Blake for Appellant

M D Downs for Respondent

Judgment:17 December 2008 at 2.30 pm 

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Potter J)

Introduction 

[1]       The appellant Isaia Feaunati was found guilty by a jury in the District Court of a charge under s 188(1) of the Crimes Act 1961 that with Taulima Taulima he intentionally caused grievous bodily harm to Robert Scott on 30 May 2005.

[2]       He appeals against his conviction contending that pursuant to s 385(1)(c) of the Crimes Act there has been a miscarriage of justice on the ground of material non-disclosure by the Crown which he maintains prejudiced the conduct of his defence, and impliedly prejudiced his prospects of obtaining an acquittal.  (Two other grounds of appeal identified in the notice of appeal were not pursued.)

[3]       The Crown says that the non-disclosure complained of (the summary of facts on the basis of which a third offender, Joseph Vaituliao, entered a guilty plea to a charge under s 189(2) of the Crimes Act), was an oversight and not material because it could not have affected the issues at trial.

Factual background

[4]       On 30 May 2005 the appellant and others were involved in a minor traffic accident after racing each other in a west Auckland street.  The victim, Robert Scott, heard the collision.  He came to the scene to see if anyone needed help.  It was dark and he brought a torch.  One of the cars in which the appellant and his associates were driving was stolen.  It was perceived that Mr Scott was recording the registration number from the registration plate of one of the cars.  Mr Vaituliao approached the victim and punched him in the face.  The blow was powerful and caused Mr Scott to fall to the ground.  He had no recollection of events after he received that punch.

[5]       Mr Taulima, possibly with assistance from the appellant, dragged the victim to the centre of the road.  The appellant then kicked the victim at least twice in the head.  He was wearing steel-capped work boots.  Mr Taulima punched the victim at least twice in the head.

[6]       The trial Judge, Judge Aitken, in her judgment on an application for a stay by the appellant and Mr Taulima, said at [9] (DC AK CRI-2005-090-009471 CRI-2006-090-000244 15 April 2008):

That is the minimum nature of their involvement.  The evidence before the jury went further and included evidence of both prisoners kicking and punching Mr Scott to the head and body.

[7]       The appellant and his associates left Mr Scott unconscious and seriously injured in the middle of the road.  He was discovered by a motorist who managed to stop without running over him.  Mr Scott sustained serious injuries to his face and jaw which required hospitalisation and surgery.

Joseph Vaituliao

[8]       Prior to trial Joseph Vaituliao pleaded guilty to injuring Mr Scott with intent to injure, contrary to s 189(2) of the Crimes Act.  He had originally been jointly charged with the appellant and Mr Taulima of intentionally causing grievous bodily harm to Mr Scott.

[9]       The circumstances and sequence of events relating to Mr Vaituliao’s guilty plea and sentence are deposed to by Joshua Shaw who was counsel for the Crown at the trial of the appellant and Mr Taulima.  He states that the entry by Mr Vaituliao of a guilty plea to a charge under s 189(2) was not contingent upon his agreeing to give evidence as a Crown witness at trial, but he agreed to do so and did give evidence.

[10]     Mr Vaituliao’s guilty plea was entered on 25 September 2007.

[11]     A brief of Mr Vaituliao’s evidence was prepared, confirmed and forwarded to counsel then representing the appellant and Mr Taulima, on or about 27 September 2007.

[12]     Mr Vaituliao was sentenced on 28 September 2007.

[13]     On 1 October 2007 Mr Shaw wrote to counsel for the appellant and Mr Taulima advising of these developments, of the sentence imposed (18 months imprisonment), and that the Crown intended to call Mr Vaituliao as a witness at the upcoming trial.  The letters were sent by both post and facsimile on 1 October 2007.

[14]     Mr Shaw acknowledges that a statement of facts was not sent to counsel.  He says this was an oversight and that the summary of facts was provided to both counsel after the conclusion of the trial upon request by the appellant’s then counsel, Mr Faigan.  It appears no request was made for the summary of facts prior to trial.

[15]     The trial commenced in the Auckland District Court on 10 October 2007.

[16]     We note that the written submissions of counsel for the appellant filed in advance of the appeal hearing, relate a chronology of the relevant events which differs from that provided by Mr Shaw in his affidavit; for example, that counsel were advised of Mr Vaituliao’s guilty plea when the trial commenced on 10 October 2007 and that an incomplete statement of Mr Vaituliao’s evidence was followed up by a fuller brief before trial.  However, the chronology as set forth by Mr Shaw in his affidavit was not contested at the appeal hearing, and appears to have been accepted by Mr Faleauto, counsel for the appellant on the appeal.

Summary of facts

[17]     The summary of facts which related to the events of 30 May 2005, was amended by Mr Shaw for the purposes of Mr Vaituliao’s sentencing.  It included the following extract which is at the heart of the appellant’s contentions on appeal:

[It] was not possible to determine which particular injuries may have been caused by the accused (Vaituliao), and it is acknowledged that the serious injuries suffered by the victim were likely to have been sustained as a result of the more serious assaults perpetrated by the accused’s associates.

Appellant’s submissions

[18]     Two principal contentions emerge from the appellant’s submissions:

(a)The Crown took different positions on the sentencing of Mr Vaituliao and at trial.  In the summary of facts the Crown stated that it could not be said which injury/ies were caused by Mr Vaituliao, whereas at trial the Crown’s position was that Mr Vaituliao played a lesser part and did not cause serious injury to the victim; the appellant and Mr Taulima were responsible for those injuries.

(b)The non-disclosure of the summary of facts prior to trial put the defence in the position that it was unable to put to the jury competing inferences as to the cause of the victim’s injuries.

[19]     We reject those submissions.

[20]     First, we do not accept that the Crown took different positions on the sentencing of Mr Vaituliao and at trial.

[21]     The Crown accepted Mr Vaituliao’s guilty plea to the lesser charge under s 189(2) of injuring with intent to injure on the basis that it was not the single blow he inflicted that caused the grievous bodily harm to the victim.  As stated in the summary of facts, the Crown’s position was that “the serious injuries were likely to have been sustained as a result of the more serious assaults perpetrated by the accused’s associates”.  The Crown did not allege that the appellant and Mr Taulima had any part in the initial blow which Mr Vaituliao inflicted on the victim.

[22]     At trial the Crown’s case was that the grievous bodily harm was caused by the two accused, the appellant and Mr Taulima. 

[23]     There is no inconsistency in these positions and no issue of integrity or fairness arises.

[24]     Secondly, even if the Crown had taken a different position at trial, there can have been no prejudice to the defence.  Counsel for the appellant and the co-accused knew the evidence that Mr Vaituliao was expected to give, having been provided with a full brief prior to trial.  The defence had full opportunity to cross-examine Mr Vaituliao at trial on the two issues which were key for the defence, namely:

(a)The incentive of Mr Vaituliao to lie (this was important for he was a crucial witness); and

(b)It was Mr Vaituliao’s initial punch to the victim that caused the grievous bodily harm.

[25]     These aspects were explored extensively in cross-examination of Mr Vaituliao, first by Mr Faigan for the appellant, and by Mr Cagney counsel for Mr Taulima.  Mr Faigan also cross-examined Mr Lance West, an oral and maxillo-facial surgeon called by the Crown as an expert witness, on matters relevant to causation.

[26]     In summing up the Judge put the matter of Mr Vaituliao’s credibility clearly to the jury in the following extract:

[45]     Finally, before I turn to the facts, a word about the evidence of Joe Vaituliao.  As you know Joe Vaituliao pleaded guilty to a charge of injuring Mr Scott.  It is a less serious charge than the charge faced by these two accused.  The fact that he did so is relevant to this case in one way, and one way only, and that is in determining whether it makes him a less credible or less reliable witness in this trial.  The Crown of course say that Joe Vaituliao is telling you the truth even though Joe Vaituliao acknowledged to you that he lied to the police when his statement was made.  Indeed Mr Vaituliao went further.  He agreed with defence counsel that at the time he made the statement he was definitely trying to shift the blame away from himself and onto these two accused.

[46]     The crucial issue for you here is whether Joe Vaituliao is an honest and reliable witness and I say it’s a crucial issue because it’s clear that his evidence forms a crucial part of the Crown case.  The defence say to you that Joe Vaituliao is lying.  They say that he agreed to plead guilty and give evidence against the two accused in return for a lesser charge being preferred and for a reduction in sentence and the defence say you can’t therefore rely on anything that Joe Vaituliao says.

[47]     The Crown does not dispute that Joe Vaituliao has pleaded guilty to a lesser charge and he has been sentenced.  The Crown says, however, that the lesser charge simply reflects his actual involvement in the incident as a whole and is not part of any deal.  The Crown says, and this was the evidence of Detective Norris, that Joe Vaituliao offered to give evidence, Detective Norris was approached by his lawyer, and that to do so was not part of any deal and that Joe Vaituliao, the Crown say, has absolutely nothing to gain and nothing to lose by lying to you in this trial.

[48]     So you will need to decide, I suggest to you members of the jury, whether you can accept all or any part of Joe Vaituliao’s evidence, but the circumstances in which he came to plead guilty to the lesser charge and to appear in Court as a Crown witness, are relevant to you only on the issue of whether or not he is a honest and reliable witness.

[27]     As to the issue of causation the Judge summed up to the jury as follows:

[41]     You will have heard Mr Cagney at the end of his closing address suggest to you that this is the fatal flaw in the Crown case as Mr West could not say for certain that all the injuries were not caused by that one blow from Joe Vaituliao.

. . .

[44]     Certainly if you are sure that all the injuries suffered by Mr Scott were caused solely by the blow struck by Joe Vaituliao, then that’s the end of the matter.  As I said, the Crown do not allege that either of these two accused had any part in the striking of that blow.  But if you do not find that to be the case, then of course you must go on and consider the evidence of Mr West, including his opinion as to the likely cause of Mr Scott’s injuries in your determination as to whether these two accused are guilty or not.

. . .

[55]     Two things are really in issue in this trial members of the jury.  The first is the cause of Mr Scott’s injury and the second is what really took place on Forrest Hill Road after the accident and after Terry Parai’s car came to a stop on the left-hand side of the road.

[56]     As to causation, the cause of the injuries, the only evidence of that is the evidence of Mr West and that’s been referred to by counsel in their closing and of course you’ve heard Mr West give his evidence.  As to causation Mr West was of the view that one blow of significant force might’ve caused the lower jaw injuries but it was more likely to have been caused by more than one blow and that in any event, if he’d fallen forward on the face or even if there’d been one blow to the lower jaw, it’s not likely that that would account for the injury to the upper jaw and the loss of the teeth.  In Mr West’s opinion that would need to be caused by another blow.

. . .

[58]     Mr Cagney’s point at the conclusion of his closing address was this: that Mr West did not give evidence that he was certain that there was more than one blow and that’s absolutely correct members of the jury.  In Mr West’s opinion he thought it was most likely that there would’ve been more than one blow and that’s how he put his evidence to you and that’s the basis on which you must assess it.  As I said, at the end of the day it’s entirely up to you what you make of Mr West’s evidence and what you decide to be the cause of Mr Scott’s injuries.

[28]     In summary, the defence had the brief of evidence of Mr Vaituliao; they had the opportunity, and did, cross-examine him in relation to the aspects of importance to the defence case; and the Judge in her summing up put the best position as far as the appellant and his co-accused were concerned on these aspects, as set out above.

[29]     Thirdly, any inferences available to the jury had to be based on evidence at trial.  The summary of facts was not admissible evidence and could not have provided any basis for a line of cross-examination or inference as suggested by counsel for the appellant.  We do not accept that the summary of facts opened any avenues for the defence, which were not otherwise available to be fully developed at trial.

Conclusion

[30]     The appellant’s appeal is misconceived.  The appellant knew that Mr Vaituliao would give evidence in advance of trial and a full brief of evidence was disclosed by the Crown.  Mr Vaituliao was cross-examined on the two key issues for the defence, incentive to lie and causation (whether his blow caused the grievous bodily harm suffered by the victim).  All admissible evidence was before the jury and the summing up put the relevant issues fully and fairly.

[31]     We agree with the Crown, that in the overall context of the case, the absence of the summary of facts was not significant for the defence as it contained no additional material information or admissible evidence.

[32]     In addition, the Crown case against the appellant and the co-accused was strong:

(a)Mr Vaituliao said in evidence that the appellant kicked the victim a “couple of times” in a manner akin to an attempted “field goal”.  The importance of Mr Vaituliao’s evidence and issues concerning his credibility were the subject of clear direction by the Judge in her summing up. 

(b)Terry Parai, the driver of one of the vehicles involved in the collision, gave evidence that the appellant kicked the victim twice in the head after Mr Taulima had dragged Mr Scott into the middle of the road.  He also said that the appellant had made admissions to that effect shortly after the incident.  

(c)A third member of the appellant’s associates said the appellant told him he had “kicked someone in the face” on the evening of the assault.  The appellant, who gave evidence at trial, accepted he told his associates that he had kicked the man, but said he did so because he didn’t want everyone to laugh at him and call him “a chicken”.

(d)An independent witness, Mr Layt, said that he saw someone being dragged on to the road and then: “I just saw movements, whether they’re throwing him or, it was hard to do, I saw the movement where they were kicking him, it was like they were trying to push something to the road …”.

(e)The appellant admitted being present at the scene, though he denied taking part in the assault.  However, he acknowledged having told material lies to the police (and an appropriate lies direction was given by the Judge in her summing up).

(f)Mr West’s evidence, although acknowledging the possibility that one very significant blow could have produced all three fractures, suggested that a number of powerful blows would have been necessary to cause the serious injuries suffered by the victim, Mr Scott.

Result

[33]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington