Tufui v R
[2020] NZCA 568
•17 November 2020
| 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 arrested.
Mr Tapaevalu appeals his sentence solely in relation to the minimum period of imprisonment of 17 years imposed. Although he accepts s 104 of the Sentencing Act 2002 was engaged, he says that the 17-year minimum period of imprisonment is manifestly excessive having regard to his culpability. He also says that the Judge failed to adequately to take into account personal mitigating factors.
The offending
The evidence of the event came primarily from Mrs Tu’uheava.[4] In some respects, the statements she made to the police were inconsistent with her evidence at trial. The following reflects the account she gave at trial and, where relevant, the Judge’s assessment of the facts.
[4]There was some CCTV footage of the area in which the offending occurred, as well as physical evidence in the form of bullet casings found on the road.
Mr and Mrs Tu’uheava lived in Australia for about three years from 2014 to 2017. During that time Mr Tu’uheava was heavily associated with the Nomads gang.[5] They returned to New Zealand in late 2017 and by early the following year Mr Tu’uheava was involved in selling methamphetamine. He had some association with the Comanchero Motorcycle Club. Mrs Tu’uheava’s evidence suggested that in April 2018 Mr Tu’uheava was seeking to establish a more formal arrangement for the supply of methamphetamine through that association.
[5]There was evidence that Mr Tu’uheava was actually a patched member of the Nomads.
Late on the night of 30 April 2018, by prior arrangement, Mr and Mrs Tu’uheava drove to a McDonalds restaurant in Manukau in their rental vehicle. Mr Tu’uheava had a bag with him that contained around $48,000 in cash. He expected to obtain a quantity of drugs from the men he was to meet. While they were at McDonalds Mr Tu’uheava received a text. He went out of the restaurant and met with two men in a black car. One of these was likely Mr Taani, whose black BMW was seen driving out of the carpark shortly afterwards.
Later, arrangements were made by text for Mr Tu’uheava to meet Mr Taani at Greenwood Rd in Mangere. Mr and Mrs Tu’uheava drove to Greenwood Rd, arriving just after 10.30 pm. Mr Tu’uheava had the bag containing $48,000 in cash and another bag with $15,000 in cash and some methamphetamine. Mr Taani’s black BMW arrived. The Crown case was that Mr Taani, Mr Tufui and Mr Tapaevalu were all in this car.
The two vehicles travelled in convoy further down Greenwood Rd. Mr Taani’s vehicle parked in front of Mr and Mrs Tu’uheava’s vehicle. Mr Taani got out of the front passenger seat of the BMW and Mr Tu’uheava got out of his vehicle, taking the sports bag with $15,000 in it. Mr Tu’uheava returned, told his wife that he had done the deal and that the other men were going to get the drugs and would come back. While they waited, Mr and Mrs Tu’uheava went to a nearby petrol station to buy some drinks and were back at Greenwood Rd just before 11.15 pm.
At 11.15 pm Mr Taani’s vehicle returned to Greenwood Rd and parked behind Mr and Mrs Tu’uheava. Mr Tu’uheava got out of the vehicle, took his sports bag and went towards the BMW. Mrs Tu’uheava stayed in the front passenger seat of their car. From time to time she checked on what was happening, using her phone as a mirror. Mr Tu’uheava was talking to one of the men outside the BMW. The conversation went on for just over an hour. Then Mr Tu’uheava ran back to his vehicle, opened the back door and threw in the bag. He was pleading with the other men and telling them that his wife had nothing to do with it. Mrs Tu’uheava turned around and saw one of the men pointing a gun at her husband. In evidence she described this man as “the main guy” and there is no dispute that this was Mr Taani.
Mr Taani told Mr Tu’uheava to move away from his car. Mr Tu’uheava ran to the back of the car. Mrs Tu’uheava then looked out of her window and saw another man at her door pointing a gun at her. This man was “the younger guy”. He opened the door and pulled her out. Mr and Mrs Tu’uheava stood together holding one another. They were told to let go and move away from the vehicle. Mr Tu’uheava told his wife to run and they started to run towards the front of their vehicle.
Mrs Tu’uheava could hear shots being fired as they ran. Although she described hearing more than one shot while she was running, the police located only one bullet casing from a .22 calibre rifle on the road near to where the Tu’uheavas’ vehicle was parked. Others were located further up the road where Mr and Mrs Tu’uheavas’ bodies were found. However, three shotgun cartridges were also found between the two positions suggesting that Mr and Mrs Tu’uheava were followed by one of the attackers on foot. Lang J was satisfied that it was Mr Tufui who had followed on foot.[6]
[6]Sentencing decision, above n 1, at [45].
Mr and Mrs Tu’uheava hid behind a tree. Mrs Tu’uheava saw Mr Taani return to the BMW. It drove up to where they were hiding. The Judge was satisfied that Mr Tapaevalu was driving.[7]
[7]At [13].
Mrs Tu’uheava saw Mr Taani get out of the front passenger seat. Mr Taani told told the couple to come out from behind the tree and then directed them towards a bush area. Mrs Tu’uheava walked up to Mr Taani with her hands on her head. She begged him to forgive her husband. She could see the outline of a person sitting in the driver’s seat of the BMW. Then the younger guy appeared on her left. She had not seen him walking from the car. The younger guy pushed her towards the grassed area and shot her in the arm twice.[8]
[8]In sentencing the Judge found that Mr Taani had shot Mrs Tu’uheava in the arm but that would be contrary to Mrs Tu’uheava’s evidence: at [18].
Mrs Tu’uheava could see Mr Taani aiming his gun towards her husband. Then he noticed her and turned towards her. He seemed frustrated that she was not dead. He pulled the trigger but the gun was empty. He went into the back seat of the car, apparently reloading his gun. Mr Tu’uheava began to run back towards their car. Mr Taani shot at him. Mrs Tu’uheava began to move towards her husband. Mr Taani shot her twice in the head. She fell to the ground. She lay still, pretending to be dead. She could hear her husband calling. She saw Mr Taani shoot Mr Tu’uheava again. Then she saw him go up to Mr Tu’uheava and shoot him yet again. Then the men left.
Some five hours later a passing motorist found Mr and Mrs Tu’uheava on the side of the road. A post-mortem examination showed that Mr Tu’uheava had received two gunshot injuries to his left upper arm, one to his back, one to his side and three to his head. It was the bullet that entered his lower back that caused the fatal injury; it entered his chest cavity and travelled upwards through his lung causing significant bleeding in the chest cavity. Mrs Tu’uheava was found to have had two bullet wounds to her head and gunshot wounds to her right arm.
Conviction appeal — Mr Tufui
In cross-examination by Mr Tufui’s counsel, Mrs Tu’uheava said that she only ever saw two people at the second Greenwood Rd meeting. She reiterated that in cross-examination by Mr Tapaevalu’s counsel.[9] However, whether there were two or three attackers, it was critical for Mr Tufui and Mr Tapaevalu each to show that the other was the younger guy. Mr Borich QC submitted that being able to put Mr Tapaevalu’s arrest photographs to Mrs Tu’uheava was essential to this defence.
The identification evidence
[9]The exchange that followed this cross-examination hinted at the possibility of her having seen three people but the weight of her evidence overall was that she had only seen two.
The Crown case that Mr Tufui was the younger guy rested, in part, on Mrs Tu’uheava’s identification of Mr Tufui as that person. That evidence was based on a number of formal procedures undertaken pursuant to s 45 of the Evidence Act 2006. In addition, Mrs Tu’uheava was shown photographs of people who had arrived at the hospital to visit her, to check that she knew them and that they were not connected with the offending. These photographs were taken on a police officer’s cell phone and were no longer available by the trial date.
Mrs Tu’uheava’s efforts at identification produced variable results. Twice she wrongly identified photographs as those of the main guy and the younger guy. Later, she correctly identified Mr Taani. She also identified Mr Tufui, though that identification was undermined somewhat at trial when she said that when shown the photograph of a hospital visitor after the offending she thought (but did not say) that it was of the younger guy. The history of the visual identification evidence is as follows:
(a)1 May 2018: Mrs Tu’uheava is shown a photograph taken on a cell phone of a visitor to the hospital. She tells the police officer that she does not know him. At trial, however, she says that she thought at the time that it was the younger guy. The photograph is no longer available.
(b)3 May 2018: Photoboard A shown at 9.42 am. None of the defendants appear in this photoboard but Mrs Tu’uheava nevertheless identifies both “the main guy” and “the younger guy” with varying degrees of certainty.
(c)3 May 2018: Photoboard B shown at 3 pm. None of the defendants appeared in this photoboard either. Mrs Tu’uheava identifies one of the photographs as “the younger guy” and two of the other photographs as “the main guy”, again with varying degrees of certainty.
(d)10 May 2018: Photoboard C shown at 7.56 pm. Mrs Tu’uheava correctly identifies Mr Taani as the main guy.
(e)10 May 2018: Photoboard D shown at 8.12 pm. Mr Tapaevalu’s photograph appeared in this photoboard but Mrs Tu’uheava did not identify him. She added a written comment on the photoboard that “[t]hey all look weird because they looked like they’ve all had a hiding”.
(f)11 May 2018: Photoboard E shown at 4.41 pm. Mrs Tu’uheava identifies Mr Tufui as “the younger guy”. In evidence-in-chief, however, when asked by the prosecutor to think about that photograph in comparison to the cell phone photograph she identified the cell phone photograph as showing “the younger guy”.
The ruling under challenge and the grounds of appeal
Mr Borich did not cross-examine Mrs Tu’uheava on Photoboard D, which had included Mr Tapaevalu. At the conclusion of his cross-examination he raised with the Judge his intention to show Mrs Tu’uheava the arrest photographs and to put to her that they depicted the younger guy. Anticipating opposition from the Crown and from Mr Tapaevalu’s counsel he sought a ruling as to whether he would be permitted to cross-examine in this way.
The Judge ruled that Mr Borich could not put the arrest photographs to Mrs Tu’uheava.[10] The Judge’s reasons were:
[2] … First, it is now well-established that a witness cannot ordinarily be asked to make a dock identification of a defendant. The policy reasons for this are well-known, and rest on the premise that visual identification evidence is inherently unreliable but may nevertheless be given significant weight by the finder of fact. This concern led to the enactment of s 45 of the Evidence Act 2006, and the introduction of threshold requirements governing the admissibility of visual identification evidence.
…
[4] The procedure Mr Borich proposes is not a formal procedure under s 45 of the Act and is akin to a dock identification. It therefore creates all the risks inherent in a dock identification.
[5] Secondly, it is now more than a year since the incident giving rise to the charges. Mrs Tu’uheava obviously has difficulty in recalling much of the detail surrounding that incident. For this reason also I consider there would be little probative value in any evidence she could now give regarding the possibility that the photographs of Mr Tapaevalu depict the person who shot her in the arm. On the other hand, a positive response would obviously create unfair prejudice for Mr Tapaevalu. I did not consider it would be possible to counter this by judicial direction.
[10]R v Tapaevalu HC Auckland CRI 2018-092-5114, 10 June 2019 (Reasons for Ruling No 2 of Lang J).
Mr Borich submitted that the Judge erred in treating the proposed course as being akin to a dock identification and treating such cross-examination as permissible only if s 45 were complied with. Mr Borich argued that putting the arrest photographs to Mrs Tu’uheava was essential to advancing Mr Tufui’s defence. He pointed out that if Mr Tufui had been standing trial alone he would have been entitled to either point Mr Tapaevalu out (if Mr Tapaevalu were present in the public gallery) or put a photograph of him to Mrs Tu’uheava. Mr Tufui’s right to advance his defence ought not be constrained by the fact that Mr Tapaevalu was standing trial with Mr Tufui.
Mr Borich accepted that Mrs Tu’uheava’s identification of Mr Tufui on the basis of the police photoboards was unreliable, given that she had effectively identified four different people as the younger guy (taking into account the hospital visitor photograph) only one of which was Mr Tufui. But he submitted that there were aspects of Mr Tapaevalu’s appearance in the arrest photographs that were consistent with the physical description given in Mrs Tu’uheava’s statements to the police and which she had confirmed in cross-examination.
Mr Borich argued that there were good prospects of Mr Tufui’s position being improved by being able to put to Mrs Tu’uheava the proposition that Mr Tapaevalu’s arrest photographs depicted the younger guy: if Mrs Tu’uheava agreed, her identification of Mr Tufui based on Photoboard E would be further undermined and if she was unsure, her earlier identification of Mr Tufui also would be further undermined. If she disagreed, Mr Tufui’s position would not be any worse. Not allowing the arrest photographs to be put meant that the jury would not see Mrs Tu’uheava’s response, which would have been significant given the generally unsatisfactory nature of all her identification evidence.
Mr Carruthers, for the Crown, supported the Judge’s ruling. He submitted that the proposed course of cross-examination would have been akin to a dock identification and unfairly prejudicial to Mr Tapaevalu. He also submitted that the arrest photographs were inadmissible because they did not comply with s 45 of the Evidence Act. He identified what he described as a curious irony in Mr Borich’s submission; that the identification evidence conducted as part of the formal procedure was unreliable but that seeking what was effectively a dock identification more than a year later might have a worthwhile level of probative value.
The admissibility of the arrest photographs
We were told that Mrs Tu’uheava gave evidence remotely and that neither defendant was visible to her. In these circumstances we do not accept that putting Mr Tapaevalu’s photograph to Mrs Tu’uheava was akin to a dock identification. Mr Borich’s proposed cross-examination should not, therefore, have been refused on this ground.
Nor, in our opinion, was s 45 engaged. Mr Carruthers argued that even if Mrs Tu’uheava had identified Mr Tapaevalu from the arrest photograph, the photograph would have been inadmissible because it was required to (and did not) comply with s 45 on the basis that the definition of visual identification evidence in s 4 does not differentiate between evidence adduced by the Crown and the defence. However, although the definition of “visual identification evidence” applies equally to evidence adduced by both Crown and defence, s 45 is clearly directed only towards visual identification evidence sought to be adduced by the Crown. It does not contemplate such evidence being adduced by the defence. The admissibility of visual identification evidence that is not subject to the requirements of s 45 is governed by ss 7 and 8 of the Evidence Act.
The admissibility of the arrest photographs would require an evidential foundation for their production. Counsel may put any document to a witness and ask that he or she agree to a proposition based on it.[11] But merely showing a document to a witness has no effect on its admissibility. If the witness disagrees with the proposition, there is no basis on which the document can be produced. Even if the witness agrees or acknowledges the possibility of the proposition being correct, the document would only be admissible if it was both relevant for the purposes of s 7 and not excluded by s 8.[12]
[11]Subject to s 90(1) of the Evidence Act 2006 which does not permit the use of documents excluded under ss 29, 29 and 30 of that Act in questioning a witness. The arrest photographs would not have been excluded by these provisions.
[12]Much of the difficulty in this case arises from the fact that no-one knows what Mrs Tu’uheava would have said if shown the photographs. It was a situation in which a voir dire could have been used effectively to clarify what was really in issue.
Given the nature of the proposed evidence, a positive response from Mrs Tu’uheava would have meant that the photograph was relevant. Its admissibility would have turned on the application of s 8, which provides:
8 General exclusion
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.
In the context of a trial involving co-defendants, and especially where cut‑throat defences are being run, it is not uncommon for a defendant to seek to introduce evidence that will incriminate the co-defendant or otherwise undermine the co‑defendant’s case and thereby cast doubt on the Crown case against the defendant. Most commonly, this involves either veracity evidence or propensity evidence.
There are two New Zealand cases in which the effect of s 8 has been specifically considered in this context. Both involved propensity evidence. In Moffat v R a defendant sought to adduce propensity evidence about his co‑defendant, engaging s 42, under which a defendant can only offer such evidence if it is relevant and the judge permits it.[13] The evidence was of doubtful relevance. The case is notable for the discussions by William Young P and Baragwanath J regarding the discretion.[14] Baragwanath J referred to the “clear rule of the common law that a co‑accused is not to be inhibited in adducing the relevant evidence by its propensity to injure a co-accused”.[15] He noted that this proposition had been endorsed by the Law Commission in its report Evidence Law: Character and Credibility, which proposed that propensity evidence offered by a defendant against a co-defendant should be admissible if relevant to the defendant’s defence and recorded its view that a court should interfere as little as possible with the right of defendants to present a full defence.[16] Viewed against ss 6, 7 and 10 of the Evidence Act and s 25(e) of the New Zealand Bill of Rights Act 1990 (protecting the right to present a defence), the Judge considered that the discretion conferred on the trial judge was limited and not to be used to deprive an accused of the right to adduce relevant evidence.[17]
[13]Moffat v R [2009] NZCA 437, [2010] 1 NZLR 701.
[14]MacKenzie J considered that the proposed evidence was not relevant for the purposes of s 7 and was therefore inadmissible in any event so that the question of the Judge’s discretion did not arise: at [62]–[65].
[15]At [18].
[16]Law Commission Evidence Law: Character and Credibility (NZLC PP27, 1997) at [281]–[282].
[17]Moffat v R, above n 13, at [21].
But the Judge recognised the consequent dilemma:[18]
How can it do justice both to the accused who wants presumably inadmissible evidence to be admitted, and to the co-accused who but for the joint trial would not have been exposed to it?
He noted that the answer at common law was severance if injustice to the co-accused could not be avoided.[19] Implicitly, that would also be the answer under the Evidence Act.
[18]At [22].
[19]At [23], citing R v Gillies and Jorgensen [1964] NZLR 709 (CA).
Although Baragwanath J did not make specific reference to s 8, William Young P did consider the interface between s 42(1)(b) and s 8 and concluded:[20]
[42] Broadly, I agree with Baragwanath J as to the limited scope of s 42(1)(b), which I see as intended to ensure that proposed propensity evidence is relevant, to avoid one defendant ambushing another, and to work in tandem with the notice requirements in s 42(2) and (3). It would be a strong thing to prevent a defendant adducing evidence which supports a defence. Indeed I would see such exclusion as inconsistent with s 25(e) and (f) of the New Zealand Bill of Rights Act. Potential for collateral damage to some defendants is an inevitable corollary of conducting joint trials. This suggests to me that, at least in general, where the choice comes down to admitting evidence which is relevant to the guilt or innocence of the defendant who proffers it, collateral damage to another defendant does not warrant exclusion. The nature of the risk of prejudice which Mr Jamieson faced was, at least broadly, of the same kind (or order of magnitude) as frequently arises in joint trials. As Baragwanath J points out, extreme cases can, if necessary, be addressed by way of severance.
[43] Against that background, I consider that s 8 should be applied in a way which leaves proper scope for the intended operation of s 42 … I consider that the risk of unfair prejudice which is relevant is “on the proceeding” rather than to the co-defendant. In determining whether there is a risk of such unfair prejudice, s 8(2) requires the Court to allow for the right of a defendant to offer an effective defence … [T]he circumstances in which potential prejudicial effect on a proceeding might warrant a refusal to permit a defendant to offer relevant evidence are likely to involve the sort of considerations which might justify severance. In all of this, it is important to recognise that there are strong policy reasons in favour of trying alleged co‑offenders together.
(Emphasis added.)
[20]Having referred earlier at [39] to the subsequent report of the Law Commission Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character (NZLC R103, 2008) at [5.20].
The only other consideration of this issue in the context of the Evidence Act appears to be this Court’s decision in Boskell v R.[21] The case was decided on that basis that the proposed propensity evidence was inadmissible because it was not relevant. However, the Court added that the evidence would have been excluded under s 8 in any event because:[22]
… such probative value as the propensity evidence may have is clearly outweighed by the unfairly prejudicial effect that it will have on the proceeding. The propensity evidence shows Mr Cummings in a most unpleasant light. Its highly prejudicial nature will cut across his ability to offer an effective defence, but its exclusion will not in our assessment affect Mr Boskell’s ability to do so. We do not consider that judicial directions will be sufficient to counter the unfair prejudice that Mr Cummings will suffer if the evidence was placed before the jury. For that reason we consider the evidence must be excluded under s 8 of the Act.
[21]Boskell v R [2014] NZCA 538, (2014) 27 CRNZ 212.
[22]At [34].
It might appear from the reference to unfair prejudice to the co-defendant that this passage suggests a more constrained approach than that described by William Young P in Moffat. However, we do not think that is the case; it is evident that the Court’s concern was related both to the right of the co-defendant to offer a defence and to the effectiveness of jury directions, which are matters affecting the trial itself, not just the co-defendant. The correct approach continues to be that set out in Moffat.
We return to the case before us. We start with the question of probative value. Even though Mr Carruthers downplayed Mrs Tu’uheava’s identification of Mr Tufui as a strong plank of the Crown case, the prosecutor’s closing shows that it was, in fact, significant to the Crown case: Mrs Tu’uheava’s evidence, Mr Tapaevalu’s evidence, “various other evidential strands” and “sheer common sense” were said to be the reasons the jury should find that Mr Tufui was the younger guy. The “various other evidential strands” included casual references at Greenwood Rd which suggested that there were more than two people in the car (such as Mr Tu’uheaeva referring to Mr Taani as having come with “his brothers”), the familial relationship between the three men (cousins) and the fact that Mr Tufui had been present on a previous occasion when there had been discussion about what would happen to Mr Tu’uheava.
In our view, if Mrs Tu’uheava had identified Mr Tapaevalu’s arrest photographs as depicting the younger guy, the evidence would have had some probative value. The quality of the photograph of Mr Tapaevalu in Photoboard D appears poorer than the arrest photographs, which show Mr Tapaevalu’s eyes clearly. Moreover, Mr Tapaevalu confirmed in cross-examination by Mr Borich that the photoboard photograph did not show his eyes as they normally appeared, possibly because he had blinked when it was taken.
Mr Borich had cross examined Mrs Tu’uheava on her police statement in which she described the younger guy’s eyes as looking down even though his head was up. The arrest photographs show Mr Tapaevalu’s eye in that way and there was evidence at trial that he has a congenital eye condition that affects his appearance. This was a point made by Mr Wimsett (trial counsel for Mr Tapaevalu) and Mr Borich in closing.
Mr Wimsett said:
Not only does Ms Tu’uheava not identify Mr Tapaevalu, and of course there’s no ESR evidence, fingerprint evidence, forensic evidence or anything like that, that has him outside the car walking around. The clear reality is, is that he can’t have been the younger guy. Ms Tu’uheava said, talked about the younger guy and she thought – this is at page 136 – she talked about the shape of his face. “Like I said, his eyes, I couldn’t forget his eyes”. And you’ll remember that when Ms Tu’uheava was shown the photoboard that included a photo of Mr Tufui and she questioned whether she had to keep looking at it. The photo clearly had some impact on her.
And I don’t accept that Ms Tu’uheava was describing eyes that, eyes that themselves physically looked down, rather, that the person in front of her was looking down, scared, ashamed, not wanting to make eye contact. But she obviously talked about eyes and, members of the jury, if you’ve learned one thing in this case, it’s that Mr Tapaevalu’s right eye is very distinctive. … I say if Ms Tu’uheava had seen his eyes like that she would not have forgotten.
Mr Borich stressed the Crown’s reliance on Mrs Tu’uheava’s identification of Mr Tufui from the photoboard and the dangers of mistaken identification and said:
Also a very important point I suggest to you is the impression that she gave that this man did not want to look at her. It’s kind of an odd thing to have your head up and your eyes down, it’s kind of an odd thing you might think. And if you didn’t know that Fisilau Tapaevalu had that condition that he has, you might think that’s exactly what she was looking at. Remember how she demonstrated it to us, and I suggest to you that thing alone, that very important point that his eyes appeared to be down all the time, provides a real pointer to you as to what went on at Greenwood Road.
There is an argument that Mrs Tu’uheava’s failure to identify Mr Tapaevalu from Photoboard D resulted from the poor quality of the photoboard photograph. On that argument, if Mrs Tu’uheava had identified Mr Tapaevalu from the arrest photographs, there would have been a more compelling basis on which to undermine her identification evidence of Mr Tufui.
But Ms Tu’uheava’s identification evidence was generally unreliable. Although Mrs Tu’uheava did recall a substantial amount of detail from the night, it is evident that her ability accurately to identify the participants was poor even close to the time of the offending, much less a year later. Realistically, the only potential effect of showing her Mr Tapaevalu’s arrest photographs would have been to render her evidence even more unreliable than it already was.
In these circumstances, there would have been some probative value in an identification of Mr Tapaevalu by reference to the arrest photographs (assuming Mrs Tu’uheava identified Mr Tapaevalu from them) but it would have been slight. The appeal turns on whether such probative value would have been outweighed by any unfairly prejudicial effect on the trial, having regard to Mr Tufui’s right to offer an effective defence.
The Judge’s articulation of this issue did not accurately reflect the s 8 test. In saying that “a positive response would obviously create significant unfair prejudice for Mr Tapaevalu [and] I do not consider it would be possible to counter this by judicial directions” the Judge wrongly focussed on prejudice to Mr Tapaevalu rather than on prejudice to the proceeding, particularly on Mr Tufui’s right to put his defence that the younger guy was Mr Tapaevalu.
The essence of Mr Tufui’s defence was that there was reasonable doubt about whether he was the younger guy. That defence was ably put, not just by reference to the unreliability of Ms Tu’uheava’s identification of him but also by casting doubt on the veracity of Mr Tapaevalu’s sisters, by pointing out the many lies and other flaws in Mr Tapaevalu’s account and by putting to Mr Tapaevalu in cross-examination that the only two people at Greenwood Rd that night were Mr Taani and Mr Tapaevalu. We are satisfied that Mr Tufui was not deprived of the opportunity to present his defence.
Nor do we see that there was any other risk of prejudice to the proceeding that might have justified excluding the evidence. Although it is true that there would have been a degree of prejudice to Mr Tapaevalu if Ms Tu’uheava had identified him, his ability to advance his defence would have been unaffected and, given Mrs Tu’uheava’s general unreliability in relation to identification, any prejudice would have been slight. Nor do we see any difficulties in terms of directing the evidence, which would have been admissible against Mr Tapaevalu but subject to the same warning as the other identification evidence. The jury would have been cautioned to take extreme care with the use made of the evidence and to put it alongside all the other identification evidence when assessing how much, if any, weight could be put on it.
Moreover, the Crown had made its case against Mr Tapaevalu specifically on the basis that he was the driver and not the younger guy. It is therefore unlikely that the Crown would have relied on the evidence against Mr Tapaevalu.
We conclude that the probative value of evidence that came from putting the arrest photographs to Mrs Tu’uheava, although slight, would not have been outweighed by any unfairly prejudicial effect on the proceeding. It follows that the Judge should have permitted Mr Tufui’s counsel to put the arrest photographs to her.
Miscarriage of justice
We turn, then, to consider whether not allowing the arrest photograph to be put to Mrs Tu’uheava led to a miscarriage of justice because it created a real risk that the outcome of the trial was affected.[23] In Misa v R the Supreme Court articulated the question as “whether there is a reasonable possibility that a different verdict would have been delivered”.[24] In doing so, it expressly rejected the suggestion that the question should be asked by reference to whether there was a reasonable possibility a different verdict “could” have been delivered, rather than “would” have been delivered. The Court’s reason was that framing the test as the former “would be to ask whether there is a reasonable possibility of a possibility of a different outcome”. [25]
[23]Criminal Procedure Act 2011, s 232(4)(a).
[24]Misa v R [2019] NZSC 134 at [46] (emphasis in original).
[25]At [46] (emphasis in original).
In our view, the present case is one in which the error led (at most) to a “reasonable possibility of a possibility” of a different outcome, falling short of the threshold for a miscarriage of justice. As we discussed earlier, there were three possible responses that Mrs Tu’uheava could have given if she had been shown the arrest photographs. If she disagreed that they showed the younger guy then, self‑evidently, there is no possibility that a different outcome would have resulted.
If she expressed uncertainty or agreed that the photographs showed the younger guy a basis would have existed for the submission that there was a reasonable doubt about her earlier identification evidence of Mr Tufui. But there is no way of knowing what her response would have been. All that Mr Tufui can show is that there is a possibility that Ms Tu’uheava would have either agreed that the arrest photographs showed the younger guy or that she was uncertain whether they did.
But even a positive or uncertain response by Mrs Tu’uheava would not have led to a different result. Mrs Tu’uheava had already identified four different people as being the younger guy. That fact, coupled with the explicit warning from the Judge regarding the reliability of identification evidence generally, meant that Mrs Tu’uheava’s identification evidence was of limited probative value and would have remained so, whatever her response to the arrest photographs. The Crown case against Mr Tufui, apart from the identification evidence, rested on circumstantial evidence and on Mr Tapaevalu’s account. It was not a particularly strong case, but if the jury accepted Mr Tapaevalu’s account in that respect, which it was entitled to do, there was sufficient evidence for it to have reached the verdict it did. In these circumstances there is no reasonable possibility that a different verdict would have been delivered had counsel been permitted to put the arrest photographs to Mrs Tu’uheava.
Result — conviction appeal
Mr Tufui’s appeal against conviction is dismissed.
Sentence appeal — Mr Tapaevalu
Mr Tapaevalu initially sought to appeal both his conviction and sentence but now only pursues his sentence appeal. His notice of appeal was filed 52 days out of time. Mr Tapaevalu explains in an affidavit that he had difficulty securing a new lawyer for his appeal whilst in prison. Absent any prejudice to or opposition from the Crown, we grant the application for an extension of time.
Mr Tapaevalu also applies to adduce fresh evidence on appeal, namely a cultural report obtained pursuant to s 27 of the Sentencing Act. Again, the Crown does not oppose the application and we grant it accordingly.
The Judge rejected Mr Tapaevalu’s account that, prior to reaching Greenwood Rd for the second time, Mr Tufui had taken over driving and Mr Tapaevalu had moved to the back seat and dozed off. The Judge sentenced on the basis that Mr Tapaevalu was involved in the supply of drugs in a reasonably commercial way and also dealt with Mr Taani in that capacity.[26] The Judge had no doubt that Mr Tapaevalu was driving the vehicle throughout and was not asleep at any stage.[27] The Judge proceeded on the basis that the purpose of the meeting at Greenwood Rd was to discuss drug dealing.[28] He did not accept that there was a premeditated plan to kill Mr Tu’uheava.[29]
[26]Sentencing decision, above n 1, at [5].
[27]At [13].
[28]At [35].
[29]At [37].
By the time Mr Tapaevalu had stood trial Mr Taani had been sentenced.[30] Hinton J treated the murder of Mr Tu’uheava as engaging s 104 of the Sentencing Act and considered that a minimum period of 19 years’ imprisonment was required to reflect Mr Taani’s overall culpability, though she reduced that by 18 months to reflect his guilty pleas. Mr Tapaevalu’s counsel accepted that s 104 was engaged. He argued, however, that but for s 104, a minimum term of 14 to 15 years’ imprisonment would have been appropriate and contended that it would be manifestly unjust to impose the minimum term of 17 years. The Judge rejected this submission:
[49] … I consider that the aggravating factors of this offending, even leaving aside the brutality and callousness of the killing, are sufficient to justify on its own a minimum term of 17 years imprisonment without the intervention of s 10[4]. I rely on the cases referred to by Hinton J when she sentenced Mr Taani and repeated by the Crown in its submissions before me.[31] I therefore consider that, even apart from s 104, your offending would justify a minimum term of 17 years imprisonment.
[50] Whether or not it would be manifestly unjust to impose that minimum term therefore, strictly speaking, does not need to be considered. However, standing back and looking at the matter as a matter of overall impression, I have no doubt that this type of situation falls squarely within the category of offending for which Parliament intended s 104 to apply. I would therefore view the imposition of a minimum term of 17 years imprisonment as not amounting to a manifest injustice in this case.
[30]R v Taani [2019] NZHC 1746.
[31]R v Doyle HC Rotorua CRI 2005-070-6451, 13 October 2006; Tumahai v R CA262/04, 26 October 2004; Marteley v R [2016] NZCA 480; Lavemai v R [2016] NZCA 363; R v Skinner HC Auckland CRI 2008-092-14599, 30 August 2010; R v Yates [2018] NZHC 2600; R v Karauria [2018] NZHC 1184; and R v Carroll [2017] NZHC 2691.
Ms Kincade QC, for Mr Tapaevalu, argued that the minimum term of 17 years is excessive having regard to Mr Tapaevalu’s role and culpability in the offending. She also argued that the Judge erred in failing to take into account personal aspects raised in a letter from Mr Tapaevalu’s sister written prior to sentencing. For the purposes of the appeal Mr Tapaevalu also relies on a cultural report obtained pursuant to s 27 of the Sentencing Act.
Referring to the methodology discussed in R v Williams, Ms Kincade argued that the Judge had failed to assess Mr Tapaevalu’s culpability by reference to other similar cases in which s 104 was engaged.[32] Had he done so, he would have reached the conclusion that a minimum term of imprisonment of less than 17 years was appropriate. Ms Kincade submitted that the cases on which the Judge had relied (being those referred to by Hinton J in sentencing Mr Taani) had involved sentencing by a principal offender, frequently with high levels of premeditation. But Mr Tapaevalu was liable as a party and was significantly less culpable than Mr Taani or Mr Tufui because he had remained in the vehicle and had not been armed, was not responsible for firing any shots and played no direct role in the offending.
[32]R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54].
Ms Kincade suggested that the most comparable case in terms of role and culpability was R v Leuluaialii.[33] That case involved the “unprovoked and vicious attack” of a 15-year-old, apparently because he had “narked”.[34] One of the co‑offenders, Mr Kopelani, was said to have had a role and culpability most analogous to Mr Tapaevalu. He was a driver who had not actually participated in the killing. He was considered less culpable than those who actually attacked the victim. On the other hand the attack was premeditated. Cooper J considered that the appropriate minimum period of imprisonment was 15 years and that it would be manifestly unjust to impose a 17-year minimum term.
[33]R v Leuluaialii HC Auckland CRI-2003-092-35815, 11 February 2005.
[34]At [4]–[5].
As Mr Carruthers pointed out however, there are some significant differences between Mr Kopelani’s offending and that of Mr Tapaevalu. Based on the Judge’s assessment of the evidence Mr Tapaevalu must have been aware by the time he moved the car from where it had been originally parked up to where Mr and Mrs Tu’uheava were hiding that serious violence was underway. The pursuit of Mr and Mrs Tu’uheava up the road, after at least one shot had been fired, was clearly going to end in only one way. Even allowing for the fact that Mr Tapaevalu was not directly involved in any of the violence we consider that his culpability as a party to this offending did warrant a minimum term of imprisonment of 17 years.
We turn then to the second aspect of the appeal, whether the minimum term of 17 years was manifestly unjust, having regard to Mr Tapaevalu’s personal factors.
Mr Tapaevalu’s sister had provided a lengthy report for the purposes of sentencing but there was no reference to it in the Judge’s sentencing notes. It is evident from the letter and from the cultural report tendered to us that Mr Tapaevalu has had a very difficult upbringing, partly because of congenital abnormalities. In particular, one eye is smaller than the other and one of his cheeks is enlarged. His obvious facial defects led to bullying at school.
It is evident that a variety of unfortunate personal circumstances led Mr Tapaevalu to become involved in drugs and anti-social associates in his early years at high school. Notwithstanding these hardships, Mr Tapaevalu has had times in his life where he has assumed significant responsibility for his mother and siblings. He has been estranged from his father for most of his life and the death of his mother in 2015 was particularly hard.
The s 27 report discusses the great difficulty a person in Mr Tapaevalu’s position faces, without the expected family structure that underpins Tongan society. Whilst we have considerable sympathy for Mr Tapaevalu’s many difficulties we accept the submission made for the Crown that, ultimately, his decision to become involved in drug dealing and in the violent offending that occurred in this case did not spring from his childhood deprivations but from poor choices as an adult. We are not satisfied that the letter from Mr Tapaevalu’s sister or the s 27 report render the 17-year minimum term manifestly unjust.
Result — sentence appeal
Mr Tapaevalu’s application for an extension of time is granted.
Mr Tapaevalu’s application to adduce fresh evidence on appeal is granted.
Mr Tapaevalu’s appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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