| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA366/2019 [2020] NZCA 568 |
| BETWEEN | MESUI TUFUI |
| AND | THE QUEEN |
| CA576/2019 | ||
| BETWEEN | FISILAU TAPAEVALU | |
| AND | THE QUEEN | |
| Hearing: | 27 August 2020 |
Court: | Courtney, Wylie and Muir JJ |
Counsel: | P L Borich QC and T D Clee for Appellant Tufui |
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…
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- AGLC
- Tufui v The Queen [2020] NZCA 568
- Case
- [2020] NZCA 568
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