| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 108/2020 [2021] NZSC 25 |
| BETWEEN | MESUI TUFUI |
| AND | THE QUEEN |
| Court: | William Young, O’Regan and Ellen France JJ |
Counsel: | P L Borich QC for Applicant |
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…
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- AGLC
- Tufui v The Queen [2021] NZSC 25
- Case
- [2021] NZSC 25
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