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Waa v The Queen

Waa v The Queen

Case [2021] NZCA 172 10 May 2021

Appeal

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA587/2018
[2021] NZCA 172

BETWEEN	WUTI WELLINGTON WAA Applicant
AND	THE QUEEN Respondent

Hearing:	25 March 2021
Court:	Collins, Ellis and Muir JJ
Counsel:	G H Vear and C A Hardy for Applicant C A Brook for Respondent
Judgment:	10 May 2021 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On the evening of 19 December 1988 two men, each armed with a shotgun and wearing balaclavas, entered the owner’s premises of the Northcote Motel. Inside the lounge of those premises were the owners Mr and Mrs Bell, and their 23-year-old daughter Ms Bell. The first intruder demanded money from Mr Bell. Ms Bell then attempted to escape but was caught in a corridor by the second of the intruders. At that moment, the first intruder fired a shot in the lounge at Mr Bell. He died soon afterwards. When Mrs Bell approached the first intruder, she was struck on her head with the butt of the gun. The intruders then ransacked through the property and made good their escape, taking a small amount of money, jewellery and a glasses case that belonged to Ms Bell.
Mr Cullen and Mr Waa were jointly charged with murdering Mr Bell, causing grievous bodily harm to Mrs Bell and aggravated robbery. They were convicted on all charges in 1990. Now, 31 years later, Mr Waa seeks leave to challenge his conviction for murder.
At the time he was charged, the evidence against Mr Cullen comprised the following:
(a)Mr Cullen made an admission to his partner, Ms Corbett, on 20 December 1989, in which he said that he and Mr Waa had gone to the motel and that while he was out of the room, a shot was fired when Mr Bell “grabbed for the gun” held by Mr Waa.
(b)The glasses case owned by Ms Bell was found at the property where Mr Cullen was living.
(c)Mr Cullen made a written statement to the police on 27 January 1989, in which he said he went with a “mate” to the North Shore looking for a place to rob. He said he and his mate took loaded shotguns into the motel and that when he was restraining Ms Bell, he heard a shot discharged in the lounge.
By the time of the trial, Mr Cullen’s brother, “Doc” Cullen, had also become a witness for the Crown. Doc Cullen said his brother made admissions to him concerning the roles of Mr Cullen and Mr Waa in the attack at the motel.
The principal evidence against Mr Waa at the time he was charged comprised the following:
(a)There was evidence of Mr Waa’s association with Mr Cullen and his general opportunity to have been involved in the crimes. He was seen with Mr Cullen at a funeral around midday on 19 December 1988 and they…

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 Waa v The Queen

Details

AGLC: Waa v The Queen [2021] NZCA 172
Case: [2021] NZCA 172
Decision Date: 10 May 2021 at 11.00 am

CaseChat Overview and Summary

In Waa v The Queen, the applicant, Mr Waa, sought leave to appeal against his conviction for the murder of Mr Bell. The Court of Appeal dismissed Mr Waa's application for leave to appeal. Mr Waa had been convicted in 1990, along with Mr Cullen, of murdering Mr Bell, causing grievous bodily harm to Mrs Bell, and aggravated robbery. The evidence against Mr Waa included his association with Mr Cullen, a shoe print found at the motel that matched his shoe, and admissions he made to the police. The case hinged on the testimony of Witness A, a prisoner who claimed Mr Waa confessed to him that he had shot Mr Bell. The trial judge ruled that Mr Waa and Mr Cullen should be tried jointly and denied Mr Waa's application for separate trials. The Court of Appeal found that the trial judge's decision was legally sound and there was no reasonable basis to argue that the severance decision should be reconsidered. The Court also determined that the trial judge's directions to the jury on how to assess Witness A's evidence were clear and adequate. Finally, the Court rejected Mr Waa's argument that the trial judge should have given the jury a direction about the Red Fox Tavern murder evidence, finding that the trial judge's decision not to do so was reasonable. The Court concluded that none of the grounds advanced in support of the proposed appeal were reasonably arguable and dismissed the application for leave to appeal.

Orders