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Tufui v R

Tufui v R

Case [2020] NZCA 568 17 November 2020

Criminal Liability

Identification Evidence

Admissibility of Evidence

Sentencing

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA366/2019
[2020] NZCA 568

BETWEEN	MESUI TUFUI Appellant
AND	THE QUEEN Respondent

CA576/2019
BETWEEN	FISILAU TAPAEVALU Appellant
AND	THE QUEEN Respondent

Hearing:	27 August 2020
Court:	Courtney, Wylie and Muir JJ
Counsel:	P L Borich QC and T D Clee for Appellant Tufui J-A Kincade QC and A Shendi for Appellant Tapaevalu JEL Carruthers for Respondent
Judgment:	17 November 2020 at 10 am

JUDGMENT OF THE COURT

AMr Tufui’s appeal against conviction is dismissed.
BMr Tapaevalu’s application for an extension of time is granted.
CMr Tapaevalu’s application to adduce fresh evidence is granted.
D Mr Tapaevalu’s appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

These appeals arise from the murder of Abraham Tu’uheava and the attempted murder of his wife, Yolanda Tu’uheava, in the early hours of 1 May 2018. Mr Tu’uheava was shot at least seven times. Mrs Tu’uheava was shot twice in the head and twice in the arm. Mrs Tu’uheava described the man who fatally shot her husband and shot her in the head as “the main guy”. She described the man who shot her in the arm as “the younger guy”.
Three men were jointly charged. The Crown alleged that Viliami Taani was the main guy, Mesui Tufui the younger guy and Fisilau Tapaevalu the driver. Mr Taani pleaded guilty to both charges. Mr Tufui and Mr Tapaevalu stood trial together. They ran cut-throat defences, each maintaining that the other was the younger guy described by Mrs Tu’uheava.
Mr Tufui denied being at the scene at all. He did not give evidence but relied on his statement to the police that he was at a house in Tidal Rd, Mangere when the offending occurred. He named two women who were there at the same time. They were sisters of Mr Tapaevalu. Both gave evidence. Neither supported Mr Tufui’s claim.
Mr Tapaevalu gave evidence. He said that both he and Mr Tufui were present and that Mr Tufui had got out of the car with Mr Taani while he, Mr Tapaevalu, stayed in the car, dozing in the back seat throughout the shootings.
Mr Tufui and Mr Tapaevalu were both convicted. The trial Judge, Lang J, sentenced on the basis of his own assessment that Mr Tufui was the younger guy and Mr Tapaevalu the driver.[1] He was also satisfied that Mr Tapaevalu was not dozing in the back seat but was aware of what was happening outside the car.[2]
[1]R v Tapaevalu [2019] NZHC 1867 [Sentencing decision] at [15].
[2]At [13].
Mr Tufui appeals his convictions on the ground that his trial was unfair as a result of the Judge refusing to allow his counsel to put to Mrs Tu’uheava two photographs of Mr Tapaevalu (the arrest photographs) and invite her to accept that Mr Tapaevalu was the younger guy.[3]
[3]Mr Borich QC advised, without objection, that these were taken when Mr Tapaevalu was…

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 Tufui v R

Details

AGLC: Tufui v The Queen [2020] NZCA 568
Case: [2020] NZCA 568
Decision Date: 17 November 2020

CaseChat Overview and Summary

This case involved the appeals of two men, Mr Tufui and Mr Tapaevalu, against their convictions and sentences for their involvement in the murder of Abraham Tu’uheava and the attempted murder of his wife, Yolanda Tu’uheava. The third defendant, Mr Taani, had pleaded guilty and had already been sentenced. The appeals were heard by the Court of Appeal of New Zealand. Mr Tufui appealed against his conviction, arguing that the trial judge had erred in refusing to allow his counsel to show the victim, Mrs Tu’uheava, two photographs of Mr Tapaevalu taken at the time of his arrest and to invite her to accept that Mr Tapaevalu was the younger guy. The Court found that the trial judge’s refusal to allow the photographs to be shown to Mrs Tu’uheava was an error of law. However, the Court concluded that the error did not lead to a miscarriage of justice because there was no reasonable possibility that a different verdict would have been delivered. Mr Tapaevalu appealed against his sentence, arguing that the minimum period of imprisonment of 17 years imposed was manifestly excessive and that the trial judge had failed to adequately take into account personal mitigating factors. The Court found that the trial judge’s assessment of Mr Tapaevalu’s culpability was correct and that the 17-year minimum term was not manifestly unjust, having regard to Mr Tapaevalu’s personal factors. The result of the appeals was that Mr Tufui’s appeal against conviction was dismissed, while Mr Tapaevalu’s application for an extension of time and to adduce fresh evidence on appeal were granted. Mr Tapaevalu’s appeal against sentence was dismissed.

Orders