R v Tauhore CA561/95 [1996] NZCA 270; [1996] 2 NZLR 641; (1996) 14 CRNZ 248 (1 July 1996)

Last Updated: 12 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A. 561/95}

THE QUEEN

v

_{TIM TUMANAKO TAUHORE}

Coram: Eichelbaum CJ McKay J

Heron J

Hearing: 1 July 1996 (at Wellington) Counsel: B Davidson for appellant

M A O’Donoghue for Crown

_{Judgment: 1 July 1996}

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

The appellant and his four associates were tried by a jury on a number of charges related to the robbery of the TAB agency at Titahi Bay on

28 January 1995. The appellant was found guilty of aggravated robbery, aggravated wounding, aggravated assault and the unlawful taking of a motor vehicle. The Crown case against him was that he was the get away driver from the robbery, and had participated in meetings and discussions before and after the crime. He appeals against his conviction.

The Crown case was circumstantial. It showed:

(i) prior association between the appellant Tauhore and three of his co-accused;

(ii) visits by the co-accused, Tony Hartley, to Tauhore’s house over the period 27-28 January prior to the robbery;

(iii) the presence of Tauhore and of his vehicle in the vicinity of the TAB

at 5.30 pm on 28 January, a few hours before the robbery;

(iv) the setting up of a police road block on the main road from Titahi Bay at 10.40 pm, after the robbery, and a car registered in Tauhore’s name driving through the cordon at 1 am;

(v) a visit to Tauhore’s house by Tony Hartley immediately after the robbery;

(vi) a meeting at Tauhore’s house on 1 February 1995 when Tauhore and three of the co-accused discussed the robbery.

A young woman who knew Tony Hartley and drove his vehicle for him over the critical period 28 January to 1 February, provided the key evidence on items (ii), (v) and (vi) at the trial. Of particular significance were passages in her evidence referring to two conversations in the period following the robbery. The first of these was in the absence of the appellant, some hours after the robbery:

“Tony gets back in the car, what can you remember him saying? He said that they hadn’t got any money, that Skip and Taam had gone into the TAB and that Skip had the shotgun and Taam had jumped the counter and then he said some old guy had tried to be a hero and come up and smacked Skip, some Taam jumped back over the counter and hit the old man, and during the fight they dropped a Motorola radio, and because they had taken so long they had to leave it.

When Tony mentioned that he had been told the Motorola radio had been dropped, did they say anything? Yes.

What was said? Geoffrey said oh, be careful, is there any way that they can trace you to it, and Tony said well I told them to wipe the batteries so they should of.

Can you remember anything else being said? Um, Geoffrey asked Tony what was Tim [i.e. the appellant, Tauhore] doing, and Tony said oh he was outside revving the car up, smoking it up outside and Geoff said oh he’s lucky he didn’t drop a diff.”

The second was the later discussion on 1 February between Tauhore and three of the co-accused:

“They come back and they are sitting round the table talking, who said what that you can remember? Tim [i.e. Tauhore] was saying how the cops had nothing on them, that they couldn’t be done for anything, and the conversation was about the old man in the TAB that got hit and how the old man was a fool and that they were going to get away with it.”

In written submissions filed prior to the hearing of the appeal, Mr Davidson, for the appellant, had submitted that the evidence of the first of these conversations was inadmissible against Tauhore. The trial Judge had ruled otherwise, and had declined an application to discharge Tauhore on the ground of insufficient evidence. He relied on R v Buckton [1985] NZCA 33; [1985] 2 NZLR 257, where this Court held that the acts or declarations of one co-conspirator, though done or made in the absence of the other, will be evidence against that other where such acts or declarations are in furtherance of their common design. In that case, however, the offence charged was one of conspiracy. There has apparently been no case in this Court where conspiracy has not been charged, but the evidence of one of the persons engaged in a common purpose or enterprise has been ruled admissible against the other.

Counsel filed a further memorandum informing the Court that after further investigation he found himself unable to sustain the argument that the same rule

did not apply. He had so advised his client, but the appellant did not wish to abandon the point. Counsel therefore referred us to relevant New Zealand and Australian authorities.

Having considered these, we are satisfied that the argument must be rejected. In Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, this issue came before the High Court of Australia. In its judgment, the Court said (at 7):

“It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others.”

We can find no valid reason for distinguishing the case of two or more accused acting together in furtherance of a common design, and being charged with the particular offence, from the case where the charge is one of conspiracy. It is the fact of common design which is critical. The statements made by one in furtherance of that design are thereby admissible against the other or others. The rule cannot logically be confined to cases where the offence charged is one of conspiracy. We note that the same view was reached by Smellie J in R v Shelford [1993] 2 NZLR 742, 745, where he referred to Buckton and Tripodi and to text writers in Australia, England and New Zealand.

The only other argument raised by Mr Davidson related to the summing up. He submitted that this was an appropriate case for the Judge to have warned the jury that it would be dangerous and unfair to convict the appellant merely on the evidence of the co-accused, Tony Hartley, made while the appellant, Tauhore, was not present. He referred to R v Walters [1989] 2 NZLR 33. In that case this Court

upheld, at 37-38, the principle that the preliminary question of admissibility is for the Judge alone the jury must be left free to concentrate on the issue whether, having regard to all the evidence, they are satisfied that the Crown has proved its case beyond reasonable doubt. The judgment then adds:

“When appropriate they should be helped by a warning from the Judge to the effect that it would be dangerous and unfair to convict the accused merely on statements made by others while he was not there. We are not purporting to lay down any general rule on what should be said in the summing up: it will always be a question of what the particular facts require in the interests of justice. The needs for a preliminary ruling by the Judge and a fair summing up are sufficient safeguards for the accused.”

The present case was not one in which the jury was invited to convict Tauhore merely on the statement made by Tony Hartley in the first of the passages cited. There was a considerable amount of other evidence, as has already been described, including the evidence of the discussion on 1 February 1995 in which the appellant participated. We accept the principle in Walters that a warning should be given when appropriate, but as the Court then said it is always a question of what the particular facts require in the interests of justice. The present case was not one where such a warning was required, and we have no misgivings as to the fact that none was given.

The appeal is accordingly dismissed.

Solicitors

Crown Solicitors Office, Wellington.