THE QUEEN v TUHI MERVYN TAKIARI [1999] NZCA 121 (22 July 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 273/98 ca 274/98

THE QUEEN

V

TUHI MERVYN TAKIARI

TAI TERIRORIRO TAKIARI

Hearing:	22 June 1999 (at Auckland)
Coram:	Henry J Anderson J Robertson J
Appearances:	R J Laybourn and W Pyke for Tuhi Takiari M E Jamieson and D Ewen for Tai Takiari J C Pike for Crown
Judgment:	22 July 1999

judgment of the court delivered by ANDERSON J

[1] On 30 July 1998 the appellants were tried by a High Court Judge and jury and convicted of murdering Barry Charles Hyde.They now appeal against conviction on various grounds related to the extent of Crown disclosure of documents, the sufficiency or otherwise of evidence, and an alleged misdirection in respect of lies.

[2] On 29 April 1997 Mr Hyde attended a party at a residence in Marshall Street, Hamilton.In the course of the evening altercations and physical fights occurred.A Ms B Wilson testified to one such incident involving Mr Hyde.Her evidence was that after some social drinking she and another woman were driven to the party by Mr Hyde in his car.Later in the evening she saw Mr Hyde being assaulted outside, against his own car, by two other party goers.One was said to be Dean Pohutuhutu and the other was a Pakeha named John.Ms Wilson said she saw Mr Hyde bashed down and booted in the ribs and the left side.She said Dean Pohutuhutu was kicking Mr Hyde and the Pakeha used a crowbar.At this stage she left to go home.According to her evidence, when she left Mr Hyde was lying on the ground "unconscious in his own blood."

[3] There was no evidence of blood being found outside the house, although blood found inside it was later identified as that of the victim.

[4] Early on the morning of 3 May 1997 Mr Hyde's body was found floating in the Waikato river near Ngaruawahia.A pathologist found bruising to the head, evidencing bleeding within the scalp tissues.There was no visible sign of external bleeding.Given the time the body had been in water the pathologist was unable to ascertain whether, for example, the victim had had a bleeding nose.The condition of the lungs satisfied the pathologist that Mr Hyde had died from drowning.It was not possible to say whether he had been conscious or unconscious immediately before or even after Mr Hyde had entered the water.The pathologist estimated that the body had been in the water for about four days.

[5] Both the appellants, as well as Mr Pohutuhutu, had been at the party.The latter testified that he saw no fights or arguments breaking out but he had told Mr Hyde to shut up because he had a bit of a smart mouth.He firmly denied having been involved in a fight with the deceased out by the car.There had been evidence about a window at the house being broken in the course of the evening and Mr Pohutuhutu suggested it may possibly have been broken by him.

[6] At about 6 or 7 a.m. on 30 April the two appellants arrived by car at an address in Raglan looking for an associate called Noel Weti.Mr Weti was not at that address but his evidence indicated that the appellants met up with him early on the morning of 30 April at an address in Fairfield, Hamilton, having arrived in a car consistent with the victim's.Another witness, Ms Tewaaka, testified that on 30 April Tuhi Takiari came to her place at Cambridge in a car consistent with the deceased's and asked her if she would like to buy a car or make a swap.Another witness, Ms H Richmond, who lives at a different address in Cambridge, gave evidence that Tuhi Takiari and some others visited her house in a white car which Tuhi Takiari said was his, that a friend owed him some money and he took the car as collateral until he got his money paid back to him.There was also evidence that Tuhi Takiari was seen wearing as a poncho a blanket which Mr Hyde usually kept in his car. Matthew Sylva testified that Tuhi Takiari arrived at this house in a white car which he said was his own and in connection with which Tuhi Takiari said that someone "went for a swim".Mr Sylva asked whether Tuhi Takiari had killed the person and received the reply that Tuhi knew nothing.John Potae testified that at about 7 a.m. on 30 April Tai, Tuhi and Noel Weti visited him at his house at 6 Pinfold Street, Hamilton in what he described as a white station wagon.Shortly afterwards Noel Weti drove him in that vehicle out to get some beer which they took back to the house.That the car observed by these witnesses was the deceased's is confirmed by Tuhi Takiari's plea of guilty at trial to a count in the indictment alleging that on the 29^th or 30^th day of April 1997 he converted Mr Hyde's vehicle.Shortly after the finding of Mr Hyde's body in the Waikato river was published the vehicle was destroyed by arson on a country road.

[7] Tuhi Takiari made a statement to the police admitting that he stole the car from the scene of the party.Tai Takiari made two statements, one on 9 May 1997 and another two days later.In the first statement he maintained that the deceased had driven him, his brother Tuhi, and a sister Sharlene, home to their mother's house at Fend Street, had then driven off and had not been seen again.In his later statement Tai Takiari at first repeated the explanation he had given earlier and denied being out with his brother after the party.Later he acknowledged he had been to Pinfold Street but denied that a vehicle was involved.He stated that he could not remember going to Raglan during the early morning of 30^th April, but might have been there.He acknowledged the possibility of his being at Ngaruawahia, Raglan and Halberg Crescent on the early morning of 30^th April.

[8] If the Crown case had gone no further the evidence may have been considered insufficient to support a verdict of guilty against either appellant.However in the case of each the Crown led evidence of alleged admissions of complicity. In relation to Tai Takiari the Crown relied on the evidence of Noel Weti and a serving prisoner, X.In the case of Tuhi Takiari the Crown relied on the evidence of another serving prisoner, Y.It is expedient to reproduce the evidence of these witnesses:-

Weti

Evidence-in-chief

Did Tai say anything to you about having been at a party where someone had got smart to him?Yes.

What did he say to you about that?He said he gave this guy a hiding.

Did he say who the guy was?He said a bally.

What's a bally?A Pakeha.

Did he say what the name of the fellow was?No.

What did he say happened between him and this fellow?He said he got smart.

Did he say what he'd done to him?Punched him.

Did he say what happened after they had the punch up?He went away somewhere.

Where did he say he'd gone to?This guy or something.

Did Tai say something about a river?Yes.

What did he say about that?He said he went down to the river with this bally.

The Pakeha fellow?Yes.

What did he say happened down at the river?I'm not too sure.

Did you ask him why they went down to the river?I can't remember that.

Do you remember him saying about what happened down at the river, what he did? Something about throwing him in or something.

Something about throwing him in?Yes.

Who was thrown in?That fellow.

The bally fellow?Don't know.

Tai told you the bally fellow was thrown in?Yes.

Apart from himself did Tai say anything about anything else when the fellow was thrown in the river?No.

Cross-examination

I'm going to ask you did Tai tell you anything about having got into a punch up or a fight with baldie?Yes.

Tell the jury what he told you about that?He said this guy got cheeky to him and he hit him.

How many times did he say that had happened?Well twice I think.

I'd like you to read again the statement, the one marked 2.Now about three hours after the comment you've just told us about did Tai tell you something else about what he'd done with this baldie?That he went down to the river with him.

What did he say he'd done in the river?That he'd thrown him in but I didn't believe him.

What did he say he'd done to the guy before he'd thrown him into the river? That they had had a fight.

Look up the third paragraph - read that - understand what's there?Yes.

What did you ask Tai about that being down at the river with a guy being in the river?If the guy was swimming.

And what did Tai say?Nope.

What did Tai say to you?Floating down the river.

The guy was floating down the river?(Nods)

X

Evidence-in-chief

What did he tell you about the party and what happened at the party?The victim was out getting a hiding from two or three other people and then he got smacked with a crowbar from another person at the party and then he got put into the back of his own car.

Did Tai Takiari say he was involved in the hiding given to the victim?He said they gave him a punch and a kick but it was someone else that hit him with the crowbar.

Did Tai Takiari tell you who put the victim in his car?No.

What else did he tell you after the victim had been put into his car?Tai and Tuhi drove to Raglan to pick up another gentleman then they drove through to Ngaruawahia.

What was the name of the other man they had gone to Raglan to pick up?I believe it to be Noel.

Did he say what he and Tuhi had done when they got to Ngaruawahia?Threw the body in the river.

Did he say where they had carried that out, where they had done it?Hopu Hopu.

Did he give any details as to the place, describe it?By the Hopu Hopu camp, the army camp.

Was there any particular reason he gave that they chose that particular spot? No.

How did he describe to you what they did when they put the victim into the river?They just threw him in the river.

Who was involved in that did he tell you?Tuhi and Noel.

Was that as well as himself?And himself.

Did he say anything to you about checking whether the victim was alive or dead? No.

What did he tell you about that?They weren't sure.

Did he tell you about doing [anything] after they had dumped the body in the river?They burgled a house across the road from where the body was dropped off.

Did he tell you what was done with the car after they put the body in the river?It was burnt out in Gordonton.

Y

Evidence-in-chief

He told me he was in for the long one.

What did that signify to you?Murder.

Did he just volunteer that information to you?He just told me he'd been in there about eight months waiting for a trial.

Carry on.Did he go on to tell you about the fact of the matter?He told me himself and his brother had given a guy a hiding at a house at Ngaruawahia and that they had beaten him up pretty bad.They threw him in the boot of a car and took him down to Ngaruawahia river and threw him in it.

How did they take him down to the river?Stuck him in the boot of a car.

Say whose car it was?No they didn't.

Did he tell you?No.

Did he tell you anything about the incident at the house, what was involved, how it started, anything of that nature?They said they were having a few beers and this guy was told to leave and was stupid enough to come back so they beat him up.

Did he say anything about how badly the man was beaten up?They didn't know whether he was dead or alive.

Did they mention anything about the state of the house?Said there was blood and that on the floors.

What did he say they decided to do after the beating?They stuck him in the boot, took him down the river, threw him in it and then went back to the house.

Did he refer just to himself?Him and his brother.

[9] This evidence was crucial to the Crown case and as such it was rigorously challenged and disparaged by counsel at trial.

[10] Towards the end of the Crown case Mr Laybourn obtained leave to re-call Dean Pohutuhutu and continue cross-examination.Counsel had received information of an alleged admission by Mr Pohutuhutu to a fellow prisoner at Waikeria.Dean Pohutuhutu agreed in cross-examination that he had told this witness that the appellants did not commit the murder.He agreed he had said that he and Mr Hyde had dropped the appellants off at their mother's place and carried on, that he and Mr Hyde collected home brew from a relative's place in Chartwell and on returning from that place there was an argument. According to this version Mr Hyde freaked out and ran across the road towards the Waikato river, disappearing over a bank.Although acknowledging that he had told the fellow prisoner these things, he said in evidence that he was just spinning him a yarn.In short he admitted saying these things but denied that they were in fact true.Later Mr Laybourn called the fellow prisoner who repeated what Dean Pohutuhutu acknowledged to the jury he had said.

[11] At the conclusion of the Crown case Ms Jamieson opened and called evidence on behalf of Tai Takiari.It then came to the notice of Mr Laybourn, who was to open on behalf of Tuhi Takiari the next morning, that a woman named Jane Adams had been at the party and had made a statement to the police which had not been disclosed to the defence.He sought and obtained a copy of this statement and next morning made an application pursuant to s 368(2) of the Crimes Act 1961 for the prosecutor to call that person. The application was listed before the trial Judge at 9.30 a.m.It was called but stood down because the Crown had not been served.Later in the morning Mr Laybourn withdrew the application.The case was opened on behalf of Tuhi Takiari and evidence called, including that previously mentioned.

[12] After the trial the appellants obtained from the police copies of a number of statements, including those of the appellants' teenage nieces Sharlene and Tania Takiari who lived with them in the same household.It was submitted on behalf of the appellants that this non disclosure by the police has resulted in a miscarriage of justice.

[13] The arguments for each appellant in relation to the ground that the jury's verdict was unreasonable or could not be supported having regard to the evidence were developed in rather different ways.Mr Laybourn submitted, we think correctly, that the evidence of Y was crucial to the verdict of guilty in relation to Tuhi Takiari.He conceded before us that if that witness' evidence were accepted then there was an adequate evidential basis for the guilty verdict.He submitted, however, that the evidence was so substantially lacking in credibility that the jury could not reasonably have accepted it.In his submission the circumstances of the alleged confession were unlikely and unconvincing.Further, the witness was unworthy of credit because of his extensive criminal history, the encouragement to falsehood he would perceive in a grant of immunity from prosecution which had been offered him, and untrue evidence he gave about his first meeting with Tuhi Takiari some years previously.

[14] In his summing-up the Judge strongly cautioned the jury in relation to the evidence of not only Y but also X.He warned of the danger of fabrication for advantage, in particular the expectation of leniency in respect of their own criminal activity.We think the crucial nature of the evidence of confessions, the extent to which they were focused upon in the trial and in final addresses, as the Judge's summing-up indicates, and the firm warning given by the Judge in his directions could not have failed to put the essentiality of those witnesses' credibility at the forefront of the jury's mind.They still convicted.This Court would not be justified in finding that it was unreasonable for the jury to accept the evidence of those two crucial witnesses.

[15] The argument of unreasonableness advanced by counsel for Tai Takiari analysed the ways in which the jury was asked to consider the question of murder.The Crown closed on the alternative bases of specific intent to kill, in terms of s 167(a) Crimes Act 1961, and meaning to cause bodily injury known to be likely to cause death and recklessness whether death ensued or not, pursuant to s 167(b).Of his own motion the trial Judge put a further possibility to the jury in terms of the approach by the Privy Council in Thabo Meli [1954] 1 All ER 373.That case was seen by the Judge as authority for the proposition that it would be open to the jury to convict of murder if it found that conduct from a first striking of the victim until the attacker threw the victim into the river was a series of interconnected acts designed to lead remorselessly to the death of Mr Hyde.

[16] With respect to the Judge we think it was unnecessary to introduce the concepts examined in Thabo Meli.We are satisfied, having regard to the emphasis the Judge gave throughout the summing-up to the factual issues of whether an accused threw Mr Hyde in the river, and if so what such accused's state of mind was at that time, that the jury must have examined the case in terms of its own practical realities.These were that if an accused participated in throwing Mr Hyde into the river then, given the criminality of that act and the pathologist's evidence as to cause of death, such accused must have been guilty of at least manslaughter.If, in addition, such accused believed Mr Hyde was alive immediately before being thrown in, an inference might be taken as to a state of mind which would support a verdict of murder under either s 167(a) or s 167(b).The confessional statements which were essential to the Crown case were significantly concerned with the conduct at the river so as to render any antecedent conduct of the type examined in Thabo Meli causatively irrelevant.We think, with respect, that the verdicts of guilty are each entirely supportable without reference to a concept of continuing conduct and not unreasonable notwithstanding that it was briefly raised in the course of the summing-up.

[17] It was submitted by counsel for Tai Takiari that having regard to the evidence, including the witness X, there was insufficient evidence to support an inference of knowledge that the deceased was alive when he entered the river.Accordingly the Crown could not prove requisite knowledge that he was alive or negative the reasonable possibility of belief by the appellant that Mr Hyde was dead.The Judge directed the jury that if they found that the appellant thought Mr Hyde was already dead, or that the appellant was not sure, the proper verdict would be one of manslaughter.Counsel for Tai Takiari did not suggest that that proposition was correct in law but submitted that the jury must be presumed to have adhered to the direction.We think a more accurate direction would have been to the effect that the Crown had to prove beyond reasonable doubt that Tai Takiari did not believe that Mr Hyde was dead.However any inaccuracy was entirely favourable to the appellants.The reasonableness of the jury's verdict must be examined in terms of an evidential basis for the jury to be satisfied that each of the appellants believed Mr Hyde was still alive at the time he was put in the river.We consider that there is a rational basis in the evidence for such a conclusion.It lies not only in the pathologist's evidence as to the cause of death but also in the nature of the injuries which did not cause death.The skull was not fractured and the underlying brain, apart from some decomposition, appeared normal. There was bruising to the head which may or may not have resulted in Mr Hyde being unconscious when he went into the water, but the evidence is far from suggesting that before Mr Hyde went into the water he may have been in a state of apparent death.Counsel's succinct cross-examination was directed solely to the effect of alcohol and hypothermia on a person's ability to swim and was not concerned with the possibility that Mr Hyde may have seemed dead.In short, whilst on the whole of the evidence a jury might reasonably conclude that Mr Hyde was thrown in the water in order to finish him off, there was scant evidence upon which they might even contemplate the possibility that the offenders believed the victim was already dead.The jury cannot be considered unreasonable for rejecting any such possibility.The jury's verdict imports that they were sure that the appellants believed Mr Hyde was still alive, albeit perhaps unconscious, when he was cast into the river, and in our judgment there is a reasonable basis in the evidence for such a conclusion.Accordingly the ground of appeal that the jury's verdict was unreasonable or could not be supported having regard to the evidence has not been made out.

[18] We turn now to the question of the documents of which copies were not provided to the defence before trial.The ground of appeal is that by reason of such omission there has been a miscarriage of justice and it is examined on that basis.

[19] Counsel, in particular Mr Laybourn, provided extensive submissions on the nature and extent of the Crown's obligation of disclosure and whether the practice of not providing copies of every document generated in the course of the inquiry was inappropriate and a breach of their right to minimum standards of criminal procedure assured by s 25 of the New Zealand Bill of Rights Act 1990.It was submitted that there had been a breach of s 25(f) which assures the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.That argument was substantially pre-empted on the appeal by the concession made by counsel appearing on behalf of the Crown that the better practice is for the police to provide full witness statements, not just names and addresses of persons interviewed, and that it would have been better if the Crown had disclosed in accordance with the provisions of the Official Information Act 1982.Given that acknowledgement we consider it unnecessary to remark upon the nature and extent of the Crown's disclosure obligations.We accept the Crown's submission that in terms of this appeal the issue is whether such non disclosure has created a real risk of a miscarriage of justice.Conventionally such a real risk might be perceived if, being evidence, the information might reasonably have left the jury in a state of reasonable doubt, or being other information might have been used by the defence in meeting the Crown case, or might otherwise have affected a significant decision in respect of the defence case.Examples of the principle may be found in R v Wickliffe [1987] 1 NZLR 55 and Re Appelgren [1991] 1 NZLR 431.The application of the principle must have regard to materiality in the circumstances of a particular case and additionally, in some cases, credibility.With this in mind we turn to the undisclosed material relied on by the appellants.

[20] A written statement was taken from Jane Adams, in the presence of a lawyer, on 14 May 1997.She stated that she went to the party at which Tuhi and later Tai arrived.Later on a Pakeha, who must have been Mr Hyde, arrived and although he was, in effect, amiable at the start he later became difficult.Mr Hyde, Tuhi, and Dean (Pohutuhutu) left to get some beer.When they returned Mr Hyde became abusive of people.He acted provocatively by giving Black Power salutes notwithstanding that Ms Adams told him that Tuhi was a member of the Mongrel Mob.She said that Mr Hyde then hit her on the head so she punched him to the floor.At this point Tuhi intervened and said to leave the man alone.A little later she saw the Pakeha put his fist through a window.It seemed to her that he had tried to take a swipe at Dean and had missed.Tai Takiari then grabbed the man and was shaking him hard and remonstrating with him for breaking the window.She says at this point she went home.She said that Tuhi came around one night after the party driving "that fella's car" and he told her that the fellow had left it to him.

[21] Sharlene Takiari, who, it will be recalled, lived with the appellants, made three statements to the police.Although concerns about reliability must be raised by variations and recantations amongst the different statements, as well as by this young teenager's acknowledgement of having taken drink and cannabis, she does confirm provocative conduct on the part of the deceased in the form of Black Power signs and she also says that Mr Hyde broke a window.Consistent with Tai Takiari's initial statement and in particular a significant part from which he subsequently resiled, Sharlene stated that the Pakeha dropped her, Tai and Tuhi home at Fend Street where they lived.In a later statement she too abandoned that story.More unhelpfully to the appellants than otherwise, she later said that she, Tuhi, Dean and Tai "all beat up the Pakeha fella who broke the window."In a later statement she said that she, Tuhi, Tai and the Pakeha left the party in the white car, that she was taken to her Aunt Annie's at Ascot Place and was dropped off by the others.

[22] The appellants also invoke statements taken from a number of people who knew Mr Hyde and were familiar with a propensity on his part to become difficult and provocative when intoxicated.

[23] The effect of these various statements, in Mr Laybourn's submission, was to portray Mr Hyde as intoxicated and provocative in a way capable of raising the ire of Mr Pohutuhutu who might thereby have been provoked to kill him.Of course, if part of Sharlene's second statement were accepted the provocation extended to the appellants who acted upon it.Further, Ms Adams' statement indicates she thought Mr Hyde's conduct provocative to Tuhi Takiari as a member of the Mongrel Mob, present in a house of Mongrel Mob associates.Accordingly, by way of alternative, Mr Laybourn submitted that potential evidence disclosed in the statements might have supported a defence of provocation in respect of the appellants themselves.We think it not readily explicable how a defence of provocation could be maintained in conjunction with a defence of uninvolvement.Moreover, to such extent as the information in the statements was reliable, the circumstances must certainly have been known to the appellants.Realistically we think that the information, or such parts of it as might be credible, could not have been material to the defence.On examination, the evidence, when taken in conjunction with the material now relied upon, is well short of disclosing a sufficient credible basis to found a defence of provocation which could be put to a jury.

[24] In respect of Jane Adams' statement, which was heavily relied on to support this ground of appeal, it is significant that the application under s 368(2) was withdrawn by experienced counsel.No adjournment was sought, there was no attempt to call her for the defence, and no application to discharge the jury was made.The trial was deliberately run on the basis that the evidence would not be adduced.Mr Laybourn submitted that an application for adjournment would have been fruitless because people who had been at the party and who had been called by the Crown would have had to be re-called.We have difficulty understanding that submission.The Crown could scarcely have applied for re-call when any justified adjournment would have been a consequence of deficient disclosure.As for the defence, it could not be criticised for failing to put to Crown witnesses who had been present at the party matters which Jane Adams' evidence might have contradicted.In reality the defence faced the risk that testimony from Jane Adams would tend to show aggressive behaviour towards Mr Hyde by one or both of the appellants and could also lead to the inference that other people at the party who had been called by the Crown may have been affected in their candour by loyalty to the appellants.We think, with respect to counsel, that experienced and capable practitioners would have been instinctively aware that anything material in Jane Adams' statement could be very dangerous to the defence.In the result we are not persuaded that the non disclosure complained of by the appellants has led to a miscarriage of justice.

[25] The final ground of appeal is the omission of a lies direction in the Judge's summing-up.We think, with respect, that this ground of appeal is simply a make-weight.On behalf of Tuhi Takiari the submission was simply that he had made some remarks which were untrue and there is a grave danger that a jury may infer that lies are a proper indicator of guilt.Tai Takiari made two exculpatory statements.In one he said that the deceased dropped him, his brother and Sharlene off at his mother's house and then drove off.In the second he acknowledged it was possible he was at Ngaruawahia, Raglan and Halberg Crescent on the early morning of 30^th April 1997.The statements were essentially consistent, although the second was more detailed and conceded possibilities.It certainly could not be said that by reason of relative inconsistency one or the other must contain lies.The result is simply that the appellants made exculpatory statements which were necessarily rejected by the jury in finding guilt.This case was not concerned with lies in the sense examined in cases such as Dehar [1969] NZLR 763 and Toia [1982] 1 NZLR 55.We think this was quite clear at the trial itself.The Crown did not rely on lies either as proof of guilt or bearing on any issue of credibility.At the conclusion of his summing-up the Judge asked counsel whether there were any matters in his summing-up that they wished to draw to his attention, whereupon defence counsel conferred and replied in the negative.In our judgment there was no misdirection.Indeed any reference to lies, far from assisting the defence, would have been unhelpful as suggesting that an adverse inference of some sort might be open to the jury on that basis.

[26] For the above reasons we are not persuaded by any of the grounds advanced on behalf of the appellants and in the case of each the appeal against conviction is dismissed.

Solicitors

Norris Ward, Hamilton, for Tai Takiari

Crown Law Office, Wellington