Vaitohi v The Queen - [2019] NZCA 371

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA729/2018
[2019] NZCA 371

BETWEEN	LASALOHI VAITOHI Appellant
AND	THE QUEEN Respondent

Hearing:	31 July 2019
Court:	Miller, Peters and Woolford JJ
Counsel:	J M Hudson for Appellant JEL Carruthers for Respondent
Judgment:	16 August 2019 at 3.00 pm

JUDGMENT OF THE COURT

The conviction appeal is dismissed.

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REASONS OF THE COURT

(Given by Woolford J)

Lasalohi Vaitohi was found guilty of aggravated robbery by a jury in the Manukau District Court on 14 June 2018. He was subsequently sentenced to five years and four months’ imprisonment and was disqualified from driving for six months.[1] He now appeals against conviction on the basis that the Court wrongly admitted evidence that the complainant had identified him as one of two offenders when shown a photo montage. The photo montage consisted of photographs of eight men, who are said to be of similar appearance.

Facts

[1]R v Vaitohi [2018] NZDC 24715.

The complainant was the owner of a BMW 318i motor vehicle. In the early hours of 8 May 2017, she was sitting in the vehicle which was parked in the driveway of her home address. The complainant’s son was standing by the vehicle, talking with her. The appellant and his co-offender arrived in another vehicle and parked behind the complainant. The complainant got out of her vehicle to see who was parked behind her. The appellant and his co-offender got out of their vehicle. The co-offender pulled a firearm from his pants and pointed it at the complainant and her son and said “Where’s the stuff?” The appellant also pulled out a firearm from his pants and said “Where’s the keys?” After a threat from the co-offender, the complainant handed the keys to her vehicle to the appellant, who then got into the vehicle. His co-offender pointed to a gold necklace worn by the complainant and said, “I’ll have that”. He took the necklace from the complainant and left in the vehicle he arrived in. The appellant also drove away in the complainant’s vehicle.
The appellant was found driving the complainant’s vehicle 36 hours later. His fingerprints were found inside and outside the vehicle. A firearm that matched the description of one of the two firearms used by the two offenders was found under his bed.

Identification by complainant

The complainant knew and recognised the appellant’s co-offender. She did not, however, know the appellant. On the night she described him as a Māori male, about six foot one inch in height, with a fat build and about 42 years old.
Two and half weeks later, the complainant was shown a photo montage of eight men who were said by the police to be of similar appearance. The complainant identified a photograph of the appellant as the man who came over that night and pulled a shotgun on her and then drove away in her vehicle.
Prior to trial, the appellant challenged the admissibility of the…

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 Vaitohi v The Queen

Details

AGLC: Vaitohi v The Queen [2019] NZCA 371
Case: [2019] NZCA 371
Decision Date: 16 August 2019 at 3.00 pm

CaseChat Overview and Summary

The appellant, Lasalohi Vaitohi, appeals against his conviction for aggravated robbery, arguing that the Court erred in admitting evidence of the complainant’s identification from a photo montage. Vaitohi was found guilty by a jury in the Manukau District Court and sentenced to five years and four months’ imprisonment. The appeal was heard by Miller, Peters, and Woolford JJ on 31 July 2019. The key legal issue before the Court was whether the photo montage shown to the complainant met the criteria for admissibility, as argued by Vaitohi.

The Court considered the criteria for admissibility of photo montages for identification purposes, referencing prior cases such as Ah Soon v R and Fukofuka v R. The Court found that the photo montage shown to the complainant met the necessary requirements, as the men featured were of similar appearance to the general description given by the complainant. The Court rejected Vaitohi’s argument that the differences in skin tone, beard fullness, and the tattoo were significant enough to render the photo montage inadmissible. The Court held that these differences were due to the lighting in the photographs rather than any actual differences in appearance. Additionally, the Court was satisfied with the reliability of the complainant’s identification based on the circumstances of the offence and subsequent evidence.

In light of the above, the Court dismissed Vaitohi’s appeal against his conviction. The Court of Appeal upheld the lower court’s decision that the photo montage was admissible, and therefore the appeal was without merit. The conviction and sentence remain in place.

Orders