Inamata v R [2016] NZCA 115 (11 April 2016)

Last Updated: 27 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA137/2015 [2016] NZCA 115
BETWEEN	TOKA INAMATA Appellant
AND	THE QUEEN Respondent

Hearing:	11 March 2016
Court:	Randerson, Asher and Clifford JJ
Counsel:	P K Hamlin for Appellant M D Downs for Respondent
Judgment:	11 April 2016 at 2:30 pm

JUDGMENT OF THE COURT

1. Leave is granted to adduce further evidence on appeal.
2. The appeal against conviction is dismissed.

100. The sentence appeal is to be determined in accordance with the procedure set out in [56] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

	Para No
Introduction Background facts The decision to proceed Subsequent events The evidence received on appeal Mr Inamata’s evidence The cellphone evidence The Crown evidence adduced on appeal Mr Robert Tuku-Inamata Mr Eric Rameka Ms Reiner Inamata Mr Jamie Rameka Mr Wiremu Inamata Our assessment Did Mr Inamata’s absence result in an unfair trial? Other considerations Result	[1] [5] [7] [11] [13] [15] [22] [25] [33] [37] [40] [42] [43] [44] [50] [54] [55]

Introduction

[1] Mr Toka Inamata appeals against his conviction and sentence for his part in the armed robbery of the Whitehouse Tavern in Papakura on 25 May 2013. He was sentenced to nine years imprisonment. This judgment deals only with his conviction appeal.
[2] Mr Inamata was to be tried in the High Court on 29 September 2014 along with two co-offenders, Mr Bowen Martin and Mr Trent Wellington, but he breached bail prior to trial and did not appear on the scheduled date. The trial judge, Wylie J, ruled at the commencement of the trial that it should proceed in Mr Inamata’s absence.
[3] The trial then proceeded with Mr Inamata being represented by Mr Hamlin. The jury found all three defendants guilty of aggravated robbery, five charges of kidnapping, two charges of threatening to kill, and two charges of conversion. Mr Wellington and Mr Inamata were found guilty of a charge of aggravated injury and Mr Inamata was also found guilty of a charge of possession of explosives.
[4] Mr Martin and Mr Wellington appealed against their convictions but the appeals were dismissed.^[1] Mr Inamata denies having any part in the robbery and seeks leave of this Court to adduce evidence to support a defence of alibi. It is submitted on his behalf that a miscarriage of justice has occurred by reason of the trial proceeding in his absence.

Background facts

[5] The Crown case was that the robbery involved six offenders. Two of them, a man to whom we will refer as XX^[2] and Mr Robert Tuku-Inamata, pleaded guilty to aggravated robbery in advance of trial. XX was a key Crown witness. He identified four other participants in the robbery: Mr Martin, Mr Wellington, Mr Inamata and a sixth man who has never been charged.
[6] It is convenient to repeat here the summary of the Crown case which we set out in the judgment on the appeals brought by Mr Martin and Mr Wellington:

[5] It was XX’s evidence that he became involved in the robbery at the invitation of Mr Toka Inamata. On the afternoon of the robbery at about 5:30 pm, Mr Toka Inamata drove by and picked him up. There was another person in the vehicle who the Crown said was Mr Martin. At trial XX said that this other person was not known to him, and was introduced to him as “Mr White”. XX described him as a “fair maori” of slim or medium build, who had a tattoo on one of his forearms. The tattoo was in a script form of writing and said “Otara 274”. At no stage did XX identify Mr White as Mr Martin. However, Mr Martin is a man with similar features, and has a tattoo on his forearm with that word and those numbers.

[6] XX deposed that the three men drove to an address in Manurewa which he thought was Mr Toka Inamata’s home because his family was there. At the address they met Mr Toka Inamata’s son in law, Mr Eric Rameka (who knew XX), a relative of Mr Toka Inamata’s called Rob and a man called Trent. The Crown said at the trial that Rob was the co-defendant Mr Tuku-Inamata and that Trent was Mr Wellington.

[7] It was XX’s evidence that he and the other five co-offenders (Mr Toka Inamata, Mr White, Trent, Mr Tuku-Inamata, and a fifth man^[3]) organised themselves for the robbery. They disguised themselves by putting on miscellaneous items of clothing, and armed themselves with weapons acquired from a car tool box which had screwdrivers, drill bits, and a crowbar inside. A sawn-off shot gun was given by Mr Toka Inamata to Mr Tuku-Inamata, and Mr White was to take a large flathead screwdriver. There was a discussion about how they would carry out the robbery. Trent, Mr White and XX drove out to Remuera to steal two cars that they would use.

[8] XX stated that they stole two cars, a Nissan Pulsar and a Subaru Legacy, and drove them back to Mr Toka Inamata’s house. The offenders then made their way to the Whitehouse Tavern in the cars arriving at about 9 pm. The tavern was busy so they waited in the car park until 10:46 pm before entering. There was a CCTV camera working. There were three bar staff and a small number of patrons present.

[9] It was the police evidence that unbeknown to the offenders, one of the bar staff fled as they entered and alerted the police. The patrons were ordered to lie on the ground and were restrained with cable ties. A staff member was told to identify the location of the safe. He was harshly punched, kicked and threatened when he said that he could not open it. Another staff member was threatened with a shotgun and told she would have her head blown off if she did not comply. When she was tied the cables cut her wrists.

[10] The offenders robbed the staff and patrons of their phones and removed cash from the registers and till trays. They could not access the safe. They left the tavern out the back entrance and escaped in the Nissan which they had available as the getaway car. By this time the police had arrived and they took up pursuit. The weather was bad; the night was described by Senior Constable Harris as “very dark ... the weather was terrible, we’d gone through periods of torrential rain”. The chase was abandoned for safety reasons. Soon after the Nissan crashed into a trampoline out the back of a house in Manurewa, and all six men fled on foot.

[11] It was XX’s evidence that he and Mr Tuku-Inamata were slower than the others and fell behind them. He had a money box from the burglary, which he dropped as he ran, and Mr Tuku-Inamata had a bag containing the shotgun as well as other items and money taken from the patrons. They caught up with the other four who were beside a house, taking off the clothes they had put on for the robbery. Someone inside the house turned on the outside tap and threw water over them. The four who had been ahead then ran on leaving XX and Mr Tuku-Inamata behind. XX and Mr Tuku-Inamata persuaded a resident in a nearby house to allow them to call a taxi, which duly collected them. They were apprehended by the police in the taxi shortly thereafter.

[12] Senior Constable Harris and his police dog named “Quanto” had by then arrived at the crashed Nissan. They followed a scent trail from the place of the crash. The track went to a nearby park where four men were found lying on the grass. Two men, who the Crown said were Mr Martin and the unknown individual, jumped up and ran away from Constable Harris, and were not apprehended that night. The other two persons, Mr Wellington and Mr Toka Inamata, were taken into custody.

(footnote in original)

The decision to proceed

[7] In his ruling that the trial should proceed in Mr Inamata’s absence, Wylie J observed that the matter is governed by s 376 of the Crimes Act 1961, which provides:

376 Presence of the accused

(1) Every accused person shall be entitled to be present in court during the whole of his trial, unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.

(2) The court may permit the accused to be out of court during the whole or any part of any trial on such terms as it thinks proper.

4. The Judge also noted that s 25 of the New Zealand Bill of Rights Act 1990 states that an accused person has a minimum right to be present at his or her trial, and to present a defence. There is nevertheless a discretion to proceed in the absence of the accused but this is only to be exercised with great caution and with close regard to the overall fairness of the proceedings.^[4] The Judge then considered a number of factors relevant to the exercise of discretion. These had first been identified by the English Court of Appeal in Jones (sub nom) and largely affirmed on appeal to the House of Lords.^[5] This Court recently considered and applied the same factors in Kumar v R, although it noted that in future the approach to the discretion in New Zealand would be governed by s 121 of the Criminal Procedure Act 2011.^[6]

[9] Wylie J addressed these factors in these terms:

• (a) The nature and circumstances of Mr Inamata's behaviour in absenting himself

The trial date was fixed on 27 November 2013. Mr Inamata was present when it was fixed. There can be no doubt that he knew when the hearing was going to commence. The hearing date has not been altered. He sought and was granted bail. He must have been aware of his obligation to attend for trial. I can only conclude that Mr Inamata deliberately absented himself. In my view, he waived his right to appear.

(b) Whether an adjournment would likely result in Mr Inamata being caught or appearing voluntarily

Mr Inamata absconded on 24 June 2014. He has been at large since. He did not surrender himself for the pre-trial fixture held in this Court on 24 July 2014. The police have made every effort to locate him, but they have been unable to do so. While, ultimately, Mr Inamata will be caught, and brought before the Court, one can only speculate as to how long that may take. The probability of a voluntary appearance is, in my view, negligible.

(c) The likely length of an adjournment

As I have noted above, it is impossible to speculate how long any adjournment would need to be were the Court not to proceed in Mr Inamata’s absence. The trial is set down for two weeks. If an adjournment is to be granted, it is likely that any new fixture would be into 2015.

(d) Is Mr Inamata legally represented?

Mr Inamata has been represented by Mr Hamlin. Mr Hamlin is an experienced counsel. He will be representing Mr Inamata throughout the trial.

(e) Can Mr Hamlin receive instructions?

Mr Hamlin has confirmed that, initially, he was in contact with Mr Inamata. Mr Inamata was able to instruct Mr Hamlin in relation to an earlier s 344A hearing, and he gave Mr Hamlin instructions to file a s 347 application after he absconded. Mr Hamlin also confirmed that he has an email address for Mr Inamata. He told me that he has been sending emails to that address. He does not know whether they have been received. Mr Inamata has not responded.

In recent times the Crown case has strengthened. One of the persons the Crown said was involved – [XX] – has pleaded guilty and been sentenced. He has agreed to give evidence against the persons he says were his co-offenders. If Mr Inamata has not been receiving emails from Mr Hamlin, he will not know this. However, he does or should know that [XX] made a full statement inculpating his co-offenders at the outset. That statement was disclosed by the police at an early stage.

(f) Extent of disadvantage to Mr Inamata if he is not able to give his version of events

I accept that Mr Inamata will inevitably be disadvantaged if the trial proceeds in his absence, but, in my view, any disadvantage is relatively minor. There was CCTV footage of the aggravated robbery. The defendants do not contest that an aggravated robbery took place. What is in issue is whether the defendants were involved. Mr Inamata can only say that he was not present. The Crown advises me that he has previously indicated that he was elsewhere. However, no alibi notice has been given by Mr Inamata. In any event, evidence of an alibi could be presented, without Mr Inamata himself being present.

(g) The risk of a jury reaching an improper conclusion about Mr Inamata’s absence

I accept that there is a risk that the jury might speculate as to Mr Inamata's absence and hold it against him, but, in my view, that risk can be dealt with if I give an appropriate direction to the jury. In that regard, I note that Allan J in Kumar gave a direction to the jury and the Court of Appeal saw "no problem" in that approach.

(h) The seriousness of the alleged offence

The alleged offending is an aggravated robbery. Moreover, it is a serious aggravated robbery. On the Crown case, it involved multiple offenders, the presentation of a firearm, a member of staff being assaulted, and members of the public and staff being detained.

(i) The general public interest that a trial should take place within a reasonable time.

This offending occurred in May 2013. It affected a number of members of the public, some of whom the Crown is calling as witnesses. The offending was no doubt traumatic for them. I can readily understand that those prospective witnesses, and other victims of the offending, may have been unable to put the events behind them. There can be a sense of closure with a trial.

Further, there is a general public interest in ensuring that people who commit offences are dealt with promptly. Any adjourned hearing would be delayed until 2015, and even then, there can be no certainty that Mr Inamata would attend, unless he is apprehended by the police in the interim.

(j) The affect of delay on the memory of witnesses.

As a general proposition, the longer the delay, the less likely it is that witnesses will have a full recall of events. While most prospective witnesses are police officers, there are some lay witnesses, including [XX].

(k) The undesirability of separate trials.

There are two other defendants. Both have complied with their bail obligations and they are present. They are ready to proceed with the trial. All co-offenders should be dealt with at the one trial, to avoid additional stress to witnesses, and unnecessary cost to the Crown.

I agree with the observations of the Court of Appeal in Kumar. It is vital that defendants in Mr Inamata's situation are not able to manipulate the criminal justice system.

(footnotes omitted)

[10] Wylie J concluded that it was in the interests of justice that the trial should proceed notwithstanding Mr Inamata’s absence.

Subsequent events

[11] The trial commenced on 29 September 2014 and concluded on 10 October 2014 with the jury finding Mr Inamata and his co-defendants guilty of the crimes set out at the beginning of this judgment. Then, on 13 November 2014, Mr Inamata was arrested on a charge of aggravated robbery and kidnapping he was alleged to have committed at Titirangi on 23 September 2014. He was convicted of those charges on 5 October 2015.
[12] Mr Inamata filed his appeal on the Whitehouse Tavern charges on 23 March 2015.

The evidence received on appeal

[13] A number of affidavits and affirmations were filed by or on behalf of Mr Inamata and by the Crown. The material filed by the appellant focused on his reasons for not turning up at trial, his explanation for being found in the park with some of the other offenders at the time of his arrest, and his defence of alibi. The Crown evidence was directed to rebutting the defence of alibi including cellphone evidence which the Crown relied on to demonstrate that Mr Inamata was in the close vicinity of the scene of the robbery at the relevant time. There was also evidence that Mr Inamata had been identified in a motor vehicle the night before the robbery, accompanied by Mr Tuku-Inamata and Mr Wellington.
[14] Counsel made submissions about how an appellate court should evaluate evidence that was not before the trial court in a case where the appellant is absent from trial. Considerations of freshness, credibility and cogency, as most recently enunciated by the Privy Council in Lundy v R,^[7] continue to be relevant, but the focus will generally be on credibility and cogency since none of the evidence the appellant seeks to place before this Court is fresh. It was all available at the time of trial and could have been called. Indeed one of the witnesses, Mr Eric Rameka, did give evidence at trial as we discuss below. We received all the evidence the parties sought to place before this Court on a provisional basis. In the circumstances of this case, we have decided to grant leave to receive all the additional evidence. However, our focus will be on the credibility and cogency of the evidence and, ultimately, whether, in all the circumstances, there is any material risk of a miscarriage of justice.

Mr Inamata’s evidence

[15] After his initial arrest on 25 May 2013, Mr Inamata was remanded in custody until he was granted bail on 8 May 2014. He breached bail on 24 June 2014. He acknowledged in his affirmation that he was aware there was a trial in September 2014 but feared for his safety should he be convicted and sent to prison. He accepted that his actions were “stupid” but he was afraid of losing his liberty, his job and not having access to his children and grandchildren.
[16] Mr Inamata denied any involvement in the robbery. Although he was aware of the statement made to the police by XX, he did not understand that XX would give evidence for the Crown. A decision to call XX as a Crown witness was not made until after XX pleaded guilty on 25 July 2014. Mr Inamata maintains he was not aware of this development. Mr Inamata suggested he had lost contact with his lawyer shortly after 16 June 2014, but we note that Mr Hamlin is recorded as informing Venning J at a callover on 17 September 2014 that he had been in communication with Mr Inamata until a callover before Duffy J on 24 July 2014. The minute made by Venning J records:

[7] As noted, Mr Hamlin has been instructed for Mr Toka Inamata for some time. Prior to Mr Toka Inamata breaching bail he had made an application under s 347 on Mr Toka Inamata's instructions. Even after Mr Toka Inamata breached his bail on 24 June, Mr Hamlin was able to be in communication with him up until the call of this matter before Duffy J on 24 July 2014. Mr Hamlin advised that Mr Toka Inamata had indicated he intended to appear at trial, even after breaching bail. He is aware of the trial date and the risk to him that the trial may proceed in his absence. Mr Hamlin also has a contact number for Mr Toka Inamata’s family and has left messages with them as well. Mr Hamlin considers there is still a chance Mr Toka Inamata will present for trial.

[17] Mr Inamata says that he was unable to instruct his legal team because he was not present at trial. If he had been, he said he would have: called witnesses to show why he was present in the park that evening after the robbery; given and called alibi evidence; challenged the Crown witness XX as to his credibility and the fact that there was no forensic evidence linking him to the crime scene; and submitted there was no connection to the robbery on his cellphone which was confiscated by the police.
[18] Mr Inamata attached to his affirmation an affidavit he had sworn on 4 June 2013 in support of an application to the District Court for bail. In that affidavit, Mr Inamata swore he was at home with his family on the evening of the robbery. During the afternoon and in the evening that day he said he was arranging the sale of a laptop. There was an exchange of text messages with the buyer. Some time after 9 pm that evening his son-in-law Eric Rameka drove him to a McDonalds outlet in Clendon town centre to complete the sale. Afterwards, he said Mr Rameka drove him home. He went into the lounge and watched television and played PlayStation. Later that evening, he received a telephone call asking him to come to the park. The park was about two kilometres away from his address. He jumped in his car and raced down there and parked by the gym on Skyes Road.^[8] He went into the park; he saw police coming but did not see any reason to run away. He denied any part in the robbery. Attached to the affidavit of 4 June 2013, were some screenshots of text messages with someone called “Laho”. We discuss these further below.
[19] In cross-examination before us, Mr Inamata said he knew his trial was coming up but did not know the exact date. Nor did he know the trial could proceed in his absence. Both these assertions are contradicted by the advice Mr Hamlin gave Venning J as recorded in the minute of 17 September 2014. Mr Inamata admitted knowing the other participants in the robbery who were either relatives or friends. He also admitted being in a vehicle in downtown Auckland the night before the robbery with Mr Wellington and Mr Tuku-Inamata.
[20] When questioned about the circumstances of his arrest on the night of the robbery, Mr Inamata accepted he was found with three others by a dog handler in the park. It was put to him that the police dog handler had told the jury that the four men were lying down on the grass. Mr Inamata denied this and said he ended up on the ground only after being kicked to the ground by members of the police. He agreed it was dark and raining. He said he had gone to the park after receiving a telephone call from someone he believed was his nephew Robert Tuku-Inamata. His nephew had told him he was in trouble and asked him to go to the park in an area where they and others had played touch rugby on previous occasions. He went to that area but his nephew was not there. He saw a police car not far away and then a police dog. People were running and jumping fences.
[21] Mr Inamata agreed he had not given this explanation to the police at the time of his arrest. He also conceded that he had told a police officer, Constable Broad, on the afternoon of the day after his arrest (26 May 2013) that he had been at a party at the time of the robbery. In answer to questions from the Court, Mr Inamata admitted he had lied to Constable Broad. We set out the relevant passage from the transcript of evidence:

17. Mr Inamata, you told Mr Downs when he was questioning you that you had told Constable Broad that you had been at a party that night. Was that true or not?
1. No it wasn’t.
17. Why did you tell him a lie?
1. As I said, I was actually quite nervous at what had gone on.
17. Sorry, speak up.
1. I was actually quite nervous at what had happened. I was just been kicked in my back, kicked to the ground. And a lot of things happening to me all at once and I didn’t even know what was going on. And um.
17. Why didn’t you tell him what you said later that you hadn’t been at the tavern and you had just got a call from someone, you thought it was Robert, was in trouble and that’s why you were at the park where you were arrested.
1. So why did I later change?
17. Why didn’t you tell Constable Broad or any other police officer that on the night?
1. To be honest I don’t even know, I’m being honest with you, I don’t know. All I know I was freaking out at what had happened to me. I wasn’t even allowed to talk to a lawyer. I asked many a times to talk to a lawyer. I don’t know, perhaps I was under duress or something, you know, and they weren’t listening to me. So what was I meant to say to them? All they wanted, all they wanted me to say was I was there and I did something and they weren’t going to have any, a bar of anything else.
17. So you made up a false explanation.
1. Well I asked him to speak to the lawyer, to speak to the lawyer. No-one was hearing me.
17. But you made up a false explanation didn’t you?
1. Yes I did.

The cellphone evidence

[22] Finally, Mr Inamata was questioned about the screenshots from the cellphone copies of which had been attached to his affidavit of 4 June 2013. These show text messages received from the man Laho during the afternoon and evening of the day of the robbery. They appear to relate to an item for sale and refer to a proposed meeting at McDonalds. As well, there was a record of incoming calls from Laho at 8.40 pm and 8.41 pm. There is also a record of a missed call at 9.08 pm. Mr Downs questioned Mr Inamata about material that had been blocked out on the record of incoming calls. He suggested to Mr Inamata that the material blocked out would have given the mobile number for the caller Laho. Mr Inamata denied knowing what this was about:

1. Um, I'm not sure to be honest cos um I didn’t actually do this. This is just what was done with the lawyer through family. I'm not sure why that was scrubbed out.
17. But.
1. I was actually in custody at that time.
17. Just.
1. So I didn’t do this, no I didn’t.

[23] The point made by Mr Downs was that if Laho’s mobile number had not been blocked out then the police could have contacted Laho for his account of the events that evening. Mr Inamata accepted that he knew Laho and that he could have come to court if he were contacted. He said he had lost contact with him over the year he had been in custody.
[24] A further point explored in cross-examination was whose cellphone Mr Inamata was using that evening. He denied having two cellphones and said he thought the phone he had used that evening belonged to his mother. He said a police officer had come to his house with a search warrant and had taken a cellphone but it was not his mother’s pink phone.

The Crown evidence adduced on appeal

[25] It is convenient here to refer to the evidence given by the Crown witnesses for the purposes of the appeal. In material respects, it contradicts Mr Inamata’s evidence. Mr Downs called Mr Casey Broad, who, at the time of the relevant events, was a police officer assisting with the inquiry into the aggravated robbery. We have already mentioned that Constable Broad spoke to the appellant at the request of another officer at about 1.30 pm on the day following the robbery. Mr Broad’s evidence was that Mr Inamata told him he had been at a party on Sykes Road Manurewa the previous evening. He was stopped by the police after attending a party. He could not remember the address of the party but stated he would be able to show the police where it was. He then said he had spoken to his lawyer and had nothing further to say as he was “not there”.
[26] Constable Broad was later asked by a senior officer to speak again with Mr Inamata who confirmed that two cellphones (one green and one pink) had been confiscated from him by the police. Constable Broad was also asked to ascertain from Mr Inamata the numbers for these phones. Constable Broad’s evidence was that Mr Inamata confirmed he had a green cellphone and a pink cellphone in his possession when he was detained by the police. He could not remember the number for the green cellphone but gave a number for the pink phone which he said was owned by his mother. Constable Broad did not give evidence at the trial, his father being terminally ill at the time.
[27] Constable Broad’s evidence was challenged only in respect of the cellphones. He accepted he was not present when Mr Inamata was arrested but maintained his evidence that Mr Inamata had conceded that both the green and pink cellphones were his. The Constable was also questioned about whether he had given Mr Inamata his rights before speaking to him but we do not regard this as material for the purposes of an assessment of Mr Inamata’s credibility and whether or not Mr Inamata received a fair trial.
[28] To the extent there is a conflict of evidence, we have no hesitation in accepting Constable Broad’s evidence in preference to that of Mr Inamata. Constable Broad’s evidence was made on the basis of contemporaneous notes made in his police notebook and we accept him as an honest and truthful witness. We give our conclusions below about the credibility and cogency of Mr Inamata’s evidence.
[29] The significance of Constable Broad’s evidence about the cellphone is demonstrated by other evidence placed before us by the Crown. At trial, Constable Hawton gave evidence that, soon after Mr Inamata’s arrest, he was responsible for taking him to the police station. On searching Mr Inamata, the pink cellphone was discovered in his possession. Later, Constable Hawton prepared two property sheets, one of which refers to the pink cellphone and the other to a green cellphone. The constable was unable to be definitive about whether he had seized the green cellphone from Mr Inamata.
[30] As noted earlier, Constable Broad was not called at trial because of his personal family circumstances and because a defence of alibi had not been advanced at trial on Mr Inamata’s behalf. Once Mr Inamata raised this issue for the purposes of appeal, the green cellphone assumed much greater significance. The officer in charge, Constable Fox, gave evidence that a production order was obtained in August 2013 seeking data held by Spark New Zealand Ltd for the green cellphone which Mr Inamata admitted to Constable Broad was his phone. Mr Dylan Ewens of Spark provided an unchallenged affidavit to this Court confirming there were two short phone calls made from the green cellphone at 10.21 pm and 10.23 pm on the night of the robbery, shortly before it occurred at around 10.45 pm. Mr Ewens’ evidence is these calls were made using cellular towers both of which are located at the Whitehouse Tavern where the robbery occurred.
[31] Obviously, this provides very strong evidence that, whoever was using the phone at those times, was at or very close to the scene of the robbery. In addition to Mr Inamata’s admission to Constable Broad that he owned the green cellphone, the Spark data records showed that the phone was used on five occasions between 6.43 pm and 11.15 pm to call phone numbers associated with members of Mr Inamata’s family.^[9] Two calls were made at 11.13 pm and 11.15 pm to Eric Rameka’s cellphone.
[32] Before setting out our conclusions about Mr Inamata’s evidence, we briefly canvass the evidence he called from other witnesses.

Mr Robert Tuku-Inamata

[33] Mr Tuku-Inamata is of course a sentenced prisoner serving time for his role in the robbery. As earlier noted, he regards himself as Mr Inamata’s nephew. He has deposed that Mr Inamata was not involved in the robbery. He said he knew the witness XX. Both of them had been smoking methamphetamine over the days prior to the robbery and both were high at the time. He admitted being involved in the robbery to which he pleaded guilty along with XX and “some people that I will not name”. He believed that the reason XX had “got this so wrong” was that he was high on methamphetamine. He denied knowing Trent Wellington.
[34] Much of Mr Tuku-Inamata’s evidence was contradicted by other evidence called by the Crown. Constable Fox gave evidence that XX was interviewed about three hours after the robbery and did not exhibit any signs of being high on methamphetamine at that time. This was confirmed by an assessment made by Counties Manukau District Custody Unit staff at 6.12 am on 26 May 2013. There was no record of XX being under the influence of drugs or alcohol at that time. If there had been any concerns about XX being under the influence of drugs this would have been recorded.
[35] Mr Tuku-Inamata’s statement that he did not know Trent Wellington was contradicted by Constable Hogan’s evidence about a traffic stop on 24 May 2013 when he identified the occupants of the vehicle he stopped that evening as including Mr Wellington, Mr Tuku-Inamata and Mr Inamata himself. In cross-examination, he denied, or said he could not remember, the traffic stop, but admitted his date of birth was the same as that recorded by Constable Hogan when Mr Tuku-Inamata identified himself at the time.
[36] We have no difficulty in rejecting Mr Tuku-Inamata’s evidence. We accept Mr Downs’ submission that considerable caution is required in assessing the credibility of a co-offender, particularly one who is related to the appellant. As well, important parts of his evidence are contradicted by the evidence called by the Crown which we accept. Finally, Mr Tuku-Inamata did not impress us as a witness of the truth.

Mr Eric Rameka

[37] Eric Rameka was described by the appellant as his son-in-law. He is the partner of Mr Inamata’s daughter Reiner. Mr Rameka and Reiner Inamata were living at Mr Inamata’s Manurewa residence at the time of the robbery. Mr Rameka deposed that Mr Inamata asked him to drive him to the McDonalds at Clendon that evening. This was about two to three minutes drive away from the Inamata residence. Mr Rameka described a meeting between Mr Inamata and a gentleman of Asian appearance who was standing at the entrance of McDonalds. There was a discussion between this man and Mr Inamata after which the Asian man obtained some cash from a cash machine and paid it to Mr Inamata. Afterwards he drove Mr Inamata back to their residence. Mr Rameka said he got into bed and started watching a movie on his computer.
[38] In cross-examination, Mr Rameka conceded his evidence was “utterly vague as to times”. All he was able to say was that the trip to Clendon had occurred at night-time. He denied attempting to call Mr Inamata that evening on his (Mr Rameka’s) cellphone. He agreed Mr Inamata and the witness XX were on good terms and accepted it was possible XX had come to Mr Inamata’s house with others on the evening of the robbery.
[39] Given the lack of detail as to the timing of the events described, we are unable to attach any weight to Mr Rameka’s evidence which, we note, was given at trial and was before the jury in any event. Even if Mr Rameka’s evidence is accepted as truthful, it does not exclude Mr Inamata being involved in the robbery later that evening.

Ms Reiner Inamata

[40] Reiner Inamata said she was at home on the evening in question with her father, Eric Rameka, her grandmother and a cousin. She started watching a movie on television at about 7 pm. She heard a car leave the house while the movie was still on and later heard a car come home. She said she was watching a movie on television which started at about 9.30 pm. It was soon after that that she came out of her room and saw her father (Mr Inamata) coming in through the back door into the kitchen. They had a brief conversation and then she went back into her room. In cross-examination, she said she was unable to be any more specific about the time she saw her father coming back into the house other than to say it was “some time after 9.30”.
[41] Our assessment is that this evidence does not materially assist Mr Inamata’s alibi defence. Ms Inamata’s evidence lacks detail as to whose car she saw leaving and returning to the property and who might have been in it. Her evidence about the timing of seeing her father some time after 9.30 that evening is vague and does not provide strong support for an alibi defence. In particular, it is not inconsistent with the call data evidence that Mr Inamata’s green cellphone was used at the scene of the robbery at 10.21 pm and 10.23 pm that evening.

Mr Jamie Rameka

[42] His affirmation does not provide any evidence to support a defence of alibi. He offers certain opinions about aspects of the robbery and states that XX told him it was his idea to do the robbery. We are satisfied this evidence lacks cogency. It has no material bearing on Mr Inamata’s role in the relevant events.

Mr Wiremu Inamata

[43] Wiremu Inamata is Mr Inamata’s older brother. He filed an affidavit saying he and his wife visited Mr Inamata at his home on the evening of the robbery. He said he did not know the exact time. All he could say was that it was dark when they arrived. Mr Inamata was present and they had a discussion about spiritual matters. Although the Crown gave notice to cross-examine Wiremu Inamata, he did not attend Court on the day of the hearing of the appeal. His evidence lacks cogency and we do not attach any weight to it.

Our assessment

[44] We have no hesitation in rejecting Mr Inamata’s evidence. We do not regard him as a truthful witness for these main reasons. First, his explanation for his presence at the park where he was arrested on the night in question is entirely implausible. As we noted in our judgment on the appeals by Mr Martin and Mr Wellington, Mr Inamata and Mr Wellington were arrested at the park in circumstances giving rise to a strong inference that they had been involved in the robbery earlier that evening.^[10] The Nissan used as the getaway vehicle crashed in the course of being pursued by the police. Some of the occupants of the vehicle were then pursued on foot by Senior Constable Harris. His dog followed a strong scent track from the crashed car. The constable observed items of discarded clothing and cash trays from the robbery on the trail as he and the dog pursued the men. The trail led them to four men in a nearby reserve. Two of them fled as they arrived and the other two men stayed lying on the ground. These were Mr Wellington and Mr Inamata. It was late May at about 11.30 pm on a Saturday night. The weather conditions were “terrible”. It was cold with periods of torrential rain. In these circumstances, it would be an extraordinarily unlucky coincidence for Mr Inamata that he just happened to be found in the park with other participants in the robbery at the time in question.
[45] Second, Mr Inamata did not give to the police his account of being summoned to the park by Mr Tuku-Inamata. Instead, he told Constable Broad the admitted lie that he was at a party in Sykes Road on the evening in question. There is no satisfactory explanation for Mr Inamata lying about this. His account that he was summoned by Mr Tuku-Inamata to the park from his home was not given until his affidavit of 4 June 2013 in support of his bail application. The fabrication of an alibi may be seen as adding to the Crown case.^[11]
[46] Third, the cellphone evidence now available strongly supports the conclusion that Mr Inamata was located at or very close to the tavern premises shortly before the robbery occurred. He admits owning the green cellphone which was used to make the phone calls at 10.21 pm and 10.23 pm which were connected through the cellular towers at the scene. In this respect, the Crown case now is stronger than it was at the time of trial.
[47] Fourth, there is little or no material support for an alibi defence from the other witnesses relied upon by Mr Inamata. We have already indicated our conclusions about this in dealing with each of the individual witnesses. We add, however, that the cellphone evidence regarding the man described as “Laho” does not assist Mr Inamata. There is nothing before the Court to corroborate Mr Inamata’s assertion that the phone from which the screenshots and other material was obtained actually belongs to Mr Inamata. Nor is there any evidence to show the location of the cellphone at the time the messages were sent and received. As well, Laho himself was not called. It was impossible for the police to trace him because someone had redacted Laho’s cellphone number from the screenshots produced by the appellant in evidence. In short, the evidence Mr Inamata produced lacks cogency and does not square with the compelling evidence now available to the Crown about the location of Mr Inamata’s cellphone shortly before the robbery.
[48] We also reject Mr Inamata’s evidence in other important respects. In particular, we are satisfied he deliberately absconded prior to his trial knowing the date fixed for the trial. Importantly, he also knew that the trial could proceed in his absence. The minute of Venning J dated 17 September 2014, the accuracy of which we accept, provides compelling support for our conclusions on these issues.
[49] This provides an important point of distinction from this Court’s decision in Kumar, in which Mr Kumar’s counsel accepted in evidence that he may well have told Mr Kumar if he did not appear at his trial, this would lead to an adjournment.^[12]

Did Mr Inamata’s absence result in an unfair trial?

[50] Mr Hamlin submitted he would have recommended to Mr Inamata that he give evidence at his trial including the cellphone messages with Laho. He would also have recommended calling Reiner Inamata and Eric Rameka in particular to give their evidence to support a defence of alibi. As it happened, he lost contact with Mr Inamata some time before the witness XX pleaded guilty. He was not able to obtain instructions in order to cross-examine XX as a Crown witness. Counsel accepted he had received a small number of telephone calls from Mr Inamata in the period leading up to the trial, probably prior to the callover of 17 September 2014. There were no communications with Mr Inamata during the trial.^[13]
[51] We accept Mr Inamata’s absence would have placed his counsel at some disadvantage at trial. Nevertheless, our examination of the transcript shows that Mr Hamlin ably tested the evidence of the Crown witnesses and in questioning Mr Eric Rameka, counsel was able to obtain his evidence to the extent it might be thought to have supported an alibi defence. We accept Mr Inamata was not himself able to give his account of what happened but that was the inevitable result of his decision to abscond with full knowledge of the consequences. In a real sense, he waived his right to appear at trial.^[14]
[52] In any event, we are satisfied for the reasons we have already given that there is no realistic prospect Mr Inamata’s alibi defence could have succeeded. In reaching that conclusion, we are conscious of the principle that, in general, an appellate court should not usurp the function of a jury in considering the evidence as a whole including any additional evidence Mr Inamata might choose to adduce if there were a retrial. However, in the circumstances of this case, having had the advantage of seeing the relevant witnesses give evidence, we are confident in our conclusion that Mr Inamata’s account of the events of the night in question is simply untrue.
[53] We also record that Mr Hamlin abandoned unreasonable verdict as a ground of appeal. In doing so, he accepted there was sufficient evidence before the jury to convict Mr Inamata. We add that the key Crown witness, XX, was extensively cross-examined not only by Mr Hamlin but also by counsel for Mr Wellington and Mr Martin. Plainly, the jury accepted the evidence of this witness in concluding that all three defendants were guilty.

Other considerations

[54] We have not found it necessary to canvass all the factors identified in the authorities as being relevant to the decision whether or not to proceed in the absence of a defendant. These were fully canvassed by Wylie J as we have set out at [9] above. We are satisfied the Judge was correct to proceed with the trial in Mr Inamata’s absence in the circumstances of this case and that, in any event, for the reasons given, there was no unfairness to Mr Inamata in consequence of that decision. In terms of the statutory test under s 385 of the Crimes Act, we are satisfied there was no material risk of a miscarriage of justice.

Result

[55] The appeal against conviction is dismissed.
[56] Counsel are in agreement that Mr Inamata’s sentence appeal may be dealt with on the papers. Similarly, counsel for Mr Wellington and Mr Martin agree that this is appropriate. We direct that submissions by all three appellants in support of the sentence appeal be filed and served within 14 days of the date of delivery of this judgment and the Crown submissions in response within 14 days thereafter.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Martin v R [2015] NZCA 606.

^[2] XX has permanent name suppression.

^[3] The Crown submitted this was probably a Mr Hemi Kingi although he was not charged.

4. ^[4] R v Jones [2002] UKHL 5, [2003] 1 AC 1 at [6], [13], [17] and [58]; see also R v van Yzendoorn [2002] NZCA 224; [2002] 3 NZLR 758 (CA) and R v Chatha [2008] NZCA 547.

^[5] R v Hayward [2001] EWCA Crim 168; [2001] QB 862, [2001] 3 WLR 125; R v Jones, above n 4.

^[6] Kumar v R [2013] NZCA 77, [2013] 3 NZLR 201.

^[7] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

^[8] This was a spelling error. Counsel agreed the road referred to was Sykes.

^[9] Wiremu Inamata, Upokina Inamata and Ranganui Inamata.

^[10] Above n 1, at [38].

^[11] R v Toia [1982] 1 NZLR 555 at 559; discussed recently in McAllister v R [2016] NZCA 61 at [16]- [17].

^[12] Kumar v R, above n 6, at [45].

^[13] We observe that, in cases such as this, it would be preferable for other counsel to be engaged for the purposes of the appeal so that trial counsel could file an affidavit. In saying that, we do not doubt the accuracy of what we were told by Mr Hamlin.

^[14] See the discussion of this issue in Kumar v R, above n 6, at [22]-[24].