Tufui v The Queen - [2021] NZSC 25

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 108/2020
[2021] NZSC 25

BETWEEN	MESUI TUFUI Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	P L Borich QC for Applicant F R J Sinclair for Respondent
Judgment:	18 March 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

After a jury trial in the High Court at Auckland, the applicant, Mesui Tufui, was convicted on charges of murder and attempted murder, along with Fisilau Tapaevalu. The applicant appealed unsuccessfully to the Court of Appeal against conviction and now seeks leave to appeal to this Court.[1]

Background

[1]Tufui v R [2020] NZCA 568 (Courtney, Wylie and Muir JJ) [CA judgment]. In that judgment, the Court of Appeal also dismissed Mr Tapaevalu’s appeal against sentence. His application for leave to appeal to this Court against sentence is the subject of a separate judgment being delivered at the same time: Tapaevalu v R [2021] NZSC 26.

The charges arose out of the shooting, in the early hours of the morning of 1 May 2018, of Abraham Tu’uheava and his wife, Yolanda Tu’uheava. Mr Tu’uheava was fatally shot by Viliami Taani. Mrs Tu’uheava survived having been shot twice in the head and twice in the arm. Mr Taani pleaded guilty to the murder of Mr Tu’uheava and to the attempted murder of Mrs Tu’uheava. The applicant and Mr Tapaevalu pleaded not guilty and were tried together.
Mrs Tu’uheava gave evidence at the trial. She did so remotely. She described the man who shot her husband and shot her in the head as “the main guy”. It was accepted that the man described as the main guy was Mr Taani. Mrs Tu’uheava described the man who shot her in the arm as “the younger guy”. It was the Crown case that the applicant was the younger guy and Mr Tapaevalu was the driver of the car in which the three men travelled to the location of the shooting.[2]
[2]The three men are cousins. Mr Taani was a patched member of the Comanchero Motorcycle Club and Mr Tapaevalu was associated with that gang. In sentencing the applicant and Mr Tapaevalu, the Judge proceeded on the basis that the Crown had not proved beyond reasonable doubt that the shooting was premeditated, rather, the two men were sentenced on the basis that this was a drug deal gone wrong: R v Tapaevalu [2019] NZHC 1867 (Lang J).
The jury heard evidence about the various formal identification processes in which Mrs Tu’uheava had participated. In these processes, she identified Mr Taani from a photograph montage as the main guy.[3] On various occasions, she identified a number of men, including the applicant, as the younger guy. When shown a photograph montage in which Mr Tapaevalu appeared, Mrs Tu’uheava did not identify him.[4] She was not cross‑examined about this montage.
[3]She had also identified other men as the main guy in other…

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 The Queen

Details

AGLC: Tufui v The Queen [2021] NZSC 25
Case: [2021] NZSC 25
Decision Date: 18 March 2021

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mesui Tufui sought leave to appeal against his conviction of murder and attempted murder. The case arose from the shooting of Abraham Tu’uheava and his wife, Yolanda Tu’uheava, in May 2018. Tufui and Fisilau Tapaevalu were on trial together and both men pleaded not guilty. Tufui's application for leave to appeal against his conviction followed an unsuccessful appeal to the Court of Appeal. The legal issues before the Supreme Court were whether the inability to cross-examine Yolanda Tu’uheava on the arrest photographs of Tapaevalu created a real risk that the outcome of the trial was affected, and whether the Court of Appeal erred in not considering whether this error led to a miscarriage because it resulted in an unfair trial. The Court found that the inability to cross-examine Yolanda Tu’uheava about the arrest photographs did not result in a miscarriage given she had already identified four different people as the younger guy and directions as to the reliability of the identification evidence were given to the jury. The Court also found that the proposed ground based on unfair trial did not meet the criteria for leave to appeal. The application for leave to appeal was dismissed.

Orders