Waitokia v The Queen
[2018] NZCA 198
•18 June 2018 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA19/2018 [2018] NZCA 198 |
| BETWEEN | TANIELA KOTOITOGA DAVEN TIAKO WAITOKIA |
| AND | THE QUEEN |
| Hearing: | 23 May 2018 |
Court: | French, Ellis and Woolford JJ |
Counsel: | J-A Kincade and A Shendi for Appellant |
Judgment: | 18 June 2018 at 10 am |
JUDGMENT OF THE COURT
A The application for an extension of time is granted.
B The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Waitokia was convicted of murder following a jury trial in the High Court. He was sentenced by the trial judge Mander J to life imprisonment and a non-parole period of 11 and a half years’ imprisonment.[1]
[1]R v Waitokia [2017] NZHC 178.
He now appeals his conviction. The appeal was filed out of time. Although the delay was considerable, there is a reasonable explanation and the Crown does not oppose an extension of time being granted. We so order.
Background
On 1 August 2015 Mr Waitokia attacked an elderly man by the name of Harold Richardson with a bottle. The attack took place in Mr Richardson’s home which Mr Waitokia, who was aged 16, had visited before. Mr Waitokia struck Mr Richardson 14 times with the bottle causing grievous and fatal head injuries including a stab wound to his head. Before leaving the house, Mr Waitokia took electrical equipment and alcohol. Mr Richardson was found the following day lying dead on the floor of his lounge.
At trial the defence argued Mr Waitokia was only guilty of manslaughter and did not have the necessary intent required to be guilty of murder.
In support of its contention that Mr Waitokia had murderous intent, the Crown relied on the following evidence:
(a)The number and intensity of the blows inflicted.
(b)The nature of the injuries suffered by Mr Richardson which it was said were typical of a bottle having been applied with great force to the scalp.
(c)The presence of blood on the edges of the broken glass of the bottle indicating Mr Waitokia had continued to use the bottle after it had broken.
(d)The presence of Mr Richardson’s blood on Mr Waitokia’s shoes suggesting he had also kicked him in addition to the assault with the bottle.[2]
(e)Accounts given by various witnesses about Mr Waitokia’s conduct both before he went to Mr Richardson’s house and afterwards. This included testimony from an acquaintance of Mr Waitokia, a Mr Stevenson.
[2]The evidence was that the DNA profile obtained provided “extremely strong scientific support” that the blood came from Mr Richardson.
Mr Stevenson gave evidence that Mr Waitokia told him that he was “going to go kill Harry, I’m going to go get him”. He said Mr Waitokia also talked about cracking a safe he thought Mr Richardson had in his house and that he asked Mr Stevenson for gloves or socks for his hands. Mr Stevenson further stated that after returning from Mr Richardson’s house, Mr Waitokia showed him the blood on his shoes and the stolen items.
Grounds of appeal
Counsel for Mr Waitokia, Ms Kincade advanced two grounds of appeal.[3] The first was that Mander J should have given a reliability warning under s 122 of the Evidence Act 2006 regarding Mr Stevenson’s evidence.[4] In counsel’s submission, the failure to give a warning was an irregularity that could have led to a miscarriage.
[3]The appellant’s written submissions contained additional grounds of appeal, but only the two recorded in this judgment were pursued at the hearing.
[4]In written submissions, it was contended that a warning ought to have been given in relation to another Crown witness as well. However, at the hearing before us, Ms Kincade confirmed that the argument was confined to Mr Stevenson only.
The second ground of appeal was that inadmissible evidence was given by the Crown pathologist Dr Sage.
Was a reliability warning required under s 122?
At trial Mr Waitokia was represented by Mr Eaton QC. In cross-examination of Mr Stevenson, Mr Eaton challenged the reliability of his evidence including in particular his account of the words spoken to him by Mr Waitokia. The challenge was made primarily on the basis that, like all of Mr Waitokia’s associates who gave evidence, Mr Stevenson was affected by alcohol and synthetic cannabis both at the time of the events as well as when interviewed by the police. Further it was suggested that the witnesses had engaged in an after the fact reconstruction of events rather than having an independent recall of them, being affected by what others were saying and what they now knew had happened. In closing, Mr Eaton stressed to the jury that the witnesses were all young dishonest people whose life was crime and drugs and who all admitted that they were wasted at the critical times. It was, he submitted, highly dangerous to take their accounts literally.
Before the Judge’s summing-up, Mr Eaton asked him to give the jury a reliability warning under s 122. The Judge declined to do so on the grounds that he did not consider the giving of a warning was necessary.
Section 122 relevantly provides:
122 Judicial directions about evidence which may be unreliable
(1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence:
(b) the weight to be given to the evidence.
…
(3)In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4)It is not necessary for a Judge to use a particular form of words in giving the warning.
…
On appeal, Ms Kincade emphasised that Mr Stevenson’s evidence was of critical importance. She acknowledged that under s 122 the Judge had a discretion, but submitted that this was a case where the discretion should have been exercised in favour of giving a warning. In support of that contention, she relied on the decision of this Court in Bruce v R where an inadequate warning led to the conviction being quashed and a retrial ordered.[5]
[5]Bruce v R [2015] NZCA 332, (2015) 28 CRNZ 150.
Each case must of course turn on its facts and in our view Bruce is distinguishable. Concerns about the content of the warning in that case were in the very different context of the trial Judge having refused to admit expert evidence about memory and a complainant who was so intoxicated she could not remember 60 per cent of what happened.[6]
[6]At [24]–[25].
In this case, matters which impacted on Mr Stevenson’s reliability — such as his age, his consumption of alcohol and drugs, his vagueness on some detail, various inconsistencies and assumptions as well as the risk of his recall being contaminated by what others told him — were all self-evident and highlighted by Mr Eaton both in a strong cross-examination and closing.
Even more importantly they were the subject of detailed comment by Mander J in his summing up. The Judge devoted some 13 paragraphs to Mr Stevenson’s evidence and the criticisms that had been made of it quoting large extracts predominantly from Mr Eaton’s cross-examination. The Judge referred to the dispute between Crown and defence about how accurate and specific Mr Stevenson’s recollection was regarding the words spoken by Mr Waitokia and told the jury that they would “need to take care in [their] approach to that evidence because we know those witnesses were affected by alcohol and synthetic cannabis”. He repeated this in a later passage, directing the jury to “be very mindful, particularly in the context of witnesses who are drinking and taking drugs at the time, of how reliable they can be as witnesses to accurately recount what was said to them”. Later again, the Judge repeated the points regarding Mr Stevenson’s evidence that had been made by Mr Eaton in his closing.
We are satisfied that in all those circumstances it was not incumbent on the Judge to give a formal warning. This ground of appeal therefore fails.
Inadmissible evidence
It was part of the defence case that the bottle used was an empty bottle. This was put by Mr Eaton to the Crown pathologist Dr Sage in cross-examination. The notes of evidence record the following exchange.
…
A. … So the bottle has to be whole in order to be a viable weapon to cause these blunt force wounds.
Q. And do you think an empty bottle could do that?
A.It works a lot better if it’s full because you’ve got the extra, you know, 700 grams of fluid inside it. If you hit someone hard enough with an empty bottle, yes you can, I’ve see it done before.
Q.But we don’t have any evidence of —
A.No.
Q.— the contents of the liquor being found?
A.I mean that, that same question has occurred to me. It means, I think the inference is that if the bottle is empty it has to be applied with a lot more vigour than if it is full.
Q.But not enough vigour to break immediately?
A.A bottle’s quite robust. We have done tests in the past and they’re quite hard to break.
…
It was common ground on appeal that Dr Sage’s evidence about tests being conducted was inadmissible although for different reasons. Ms Kincade said it was inadmissible because it was outside Dr Sage’s expertise. He is a pathologist not an expert on glass. Mr Lillico contended the evidence was inadmissible because it was so generalised as to be “pointless” and hence irrelevant, certainly not substantially helpful.
Ms Kincade conceded that no objection was taken at the time by Mr Eaton. However, as she pointed out the absence of an objection does not render inadmissible evidence admissible. In her submission, it was impossible to judge the weight the jury may have given the evidence but it was undeniably prejudicial. Further, it was mentioned in the Crown’s closing address but the Judge never told the jury to disregard it.
In our view, this ground of appeal also lacks merit. As Mr Lillico submitted, the evidence given by Dr Sage about more force being needed if the bottle was empty was basic physics. And it was that aspect of his evidence, not tests about the robustness of glass, that was relied upon by the prosecutor in closing. The Crown did not close on the robustness of bottles and no mention was made of the evidence about tests. In our view had the Judge raised it in his summing up that would have served only to highlight it, to the possible disadvantage of the defence. As it was, the evidence was of no consequence and nothing was made of it.
We are satisfied neither ground of appeal whether viewed individually or collectively warrants appellate intervention.
Outcome
The application for an extension of time is granted.
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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