The Queen v Taito - [2005] NZCA 22

IN THE COURT OF APPEAL OF NEW ZEALAND
CA4/96
THE QUEEN
v
FA'AFETE TAITO
Hearing:3 and 4 February 2005

Court:Anderson P, Hammond and William Young JJ
Counsel:T Ellis for Appellant

D J Boldt for Crown

Judgment:1 March 2005

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS
(Given by William Young J)
Table of Contents

Para No

Introduction   [1]
Grounds of appeal  [5]
Background  [6]
The approach on appeal  [27]
The absence of a transcript of the summing up  [29]
ALLEGED INCOMPETENCE AND FAILURE TO COMPLY WITH   [40]
INSTRUCTIONS ON THE PART OF THE APPELLANT’S TRIAL
COUNSEL, MS MARIE DYHRBERG
The size of the jury panel and the manner in which the              [57]
jury was empanelled
Undue appellate delay  [74]
Result  [87]
Introduction
[1]       In June 1995 the appellant was tried in the High Court in Auckland on two charges of aggravated robbery, one committed at Greenlane and the other at the St Lukes Shopping Centre (“St Lukes”). He was acquitted on the charge associated with the Greenlane robbery and the jury was unable to agree on the charge relating to the St Lukes robbery. He was retried on that charge in December 1995 before Cartwright J. On this occasion he was found guilty and subsequently sentenced to seven years imprisonment.
[2]       The appellant appealed against both conviction and sentence, and sought legal aid. Following the procedure then adopted in relation to criminal appeals, legal aid was declined and this Court subsequently dismissed the appeals against conviction and sentence: CA 4/96, 25 July 1996.
[3]       The appellant successfully appealed to the Privy Council, which directed a rehearing of his appeal: R v Taito [2003] 3 NZLR 577.
[4]       We have now reheard his appeal.
Grounds of appeal
[5]       At the hearing before us, the appellant challenged only his conviction. His counsel, Mr Ellis, addressed arguments to four aspects of the case:
(a)       The absence of a transcript of the Judge’s summing up;
(b)Alleged incompetence and failure to comply with instructions on the part of the appellant’s trial counsel, Ms Marie Dyhrberg;
(c)The size of the jury panel and the manner in which the jury was empanelled; and

(d) The delay in determining the appellant’s appeal.

Background
[6]       Just before 2.00pm on 29 July 1994, two men, one of whom was armed with a loaded pistol, robbed employees of a security firm at St Lukes in Auckland. They stole two cash boxes. In the immediate aftermath of the robbery, the two cash boxes were placed in a white Falcon station wagon of which a third person was the driver. The white Falcon station wagon then left the scene. The other two men involved in the robbery also left the scene, one on foot and the other in a second car which had been stolen.
[7]       On the Crown case, the two men directly involved in the robbery were Michael Anthony Luamanu and Lei Tauvaga Letele and the man who drove the white Falcon station wagon was the appellant.
[8]       The…

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 The Queen v Taito

Details

AGLC: The Queen v Taito [2005] NZCA 22
Case: [2005] NZCA 22
Decision Date: 1 March 2005

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Fa'afete Taito, appealed against his conviction for aggravated robbery, which occurred at St Lukes Shopping Centre in Auckland. The appellant was acquitted on the charge associated with the Greenlane robbery but was found guilty on the charge relating to the St Lukes robbery in his second trial. The appellant challenged his conviction on four grounds: the absence of a transcript of the summing up, alleged incompetence and failure to comply with instructions on the part of the appellant's trial counsel, the size of the jury panel and the manner in which the jury was empanelled, and undue appellate delay. The Court of Appeal dismissed the appeal, finding no miscarriage of justice in the trial or appeal process. The Court rejected the argument that the absence of a transcript of the summing up warranted allowing the appeal, as it was unable to determine whether any procedural error occurred. The Court also found no evidence of incompetence or failure to comply with instructions on the part of the appellant's trial counsel, and concluded that the size of the jury panel and the manner in which the jury was empanelled did not lead to a miscarriage of justice. Lastly, the Court found that while there was undue appellate delay, it did not warrant the allowing of the conviction appeal.

Orders