THE QUEEN v TAIOPERUA NUTTAL [1999] NZCA 325 (17 December 1999)

IN THE court of appeal of new zealand

ca260/99 CA299/99 CA407/99

THE QUEEN

V

TAIOPERUA NUTTAL

DARREN MARINO

NICHOLAS TE AONUI

Hearing:	14 December 1999
Coram:	Gault J Keith J Blanchard J
Appearances:	D C Clark for Marino
	L M Bidois for Nuttal S J Lance for Te Aonui S P France for Crown
Judgment:	17 December 1999

judgment of the court DELIVERED BY GAULT J

[1] The three appellants were charged, along with four others with conspiracy to commit aggravated robbery and aggravated robbery.Messrs Nuttal and Marino were found guilty by the jury on both charges.Nicholas Te Aonui was found guilty of the aggravated robbery but not of the conspiracy.Three others were found not guilty on all charges, while the seventh accused was discharged under s347 Crimes Act 1961 at the end of the Crown case on the conspiracy charge and was found not guilty by the jury on the other charge.

[2] The conspiracy charge arose out of a failed expedition to rob the Rotorua Liquor Barn on 23 May 1998.The second charge of aggravated robbery was in respect of the robbery of the same premises a week later on 1 June 1998 when approximately $11,000 was taken.The ground of appeal advanced on behalf of each of the three appellants is that the verdicts are unsafe on the ground of inconsistency with the acquittals of the co-accused.In addition in the case of Nicholas Te Aonui it is said the verdicts on the separate charges he faced are inconsistent.

[3] As a background to what follows the several accused, the charges they faced and the verdicts are set out as follows:

Accused	Conspiracy to commit aggravated robbery	Aggravated robbery
Taioperua Nuttal	Guilty	Guilty
Darren Marino	Guilty	Guilty
Nicholas Te Aonui	Not Guilty	Guilty
Paul Te Aonui	Not Guilty	Not Guilty
Heta Ropitini	Not Guilty	Not Guilty
Reuben Theodore	Not Guilty	Not Guilty
EricVoller	Discharged under s347 at end of Crown case	Not Guilty

[4] Messrs Nuttal, Nicholas Te Aonui and Theodore all were patched members of various Mongrel Mob chapters.The other accused (apart from Paul Te Aonui and perhaps Ropitini) were either prospects or associates of the Mongrel Mob.

[5] The main evidence presented by the Crown, was the testimony of Marcus Taua, an admitted co-offender, who was given immunity from prosecution on the charges for agreeing to give evidence.He acknowledged being present at various meetings between the accused and was in one of the cars on the failed attempt and at the time of the robbery.Inevitably he was closely cross-examined and his credibility was the subject of vigorous challenge.

[6] According to the case for the Crown, on 22 May 1998 several men met at Nuttal's house for the purpose of planning an aggravated robbery of the Liquor Barn.A plan was drawn on a pad though that was burned after the discussion. However, a police document expert was able to recreate the plan from indentations on the pad when it was seized by the police.An attempt was made to carry out the robbery the next day.Nuttal, Ropitini and Taua drove to Maree Tai's place and exchanged cars.Nuttal had earlier called that address by telephone.They then drove to Nicholas Te Aonui's place where they met Nicholas Te Aonui, Marino and Paul Te Aonui.Using two cars they drove to the rear of McDonald's restaurant a short distance from the Liquor Barn.They waited there for Theodore to join them but he did not appear.The cars separated and Nicholas Te Aonui and Marino disguised and armed set out for the liquor barn but found it closed.This was duly reported to the others by radio telephones they were carrying.

[7] The following Sunday, 31 May, Nuttal, Voller and Taua were said to have gone to Theodore's place to discuss a further attempt on the Liquor Barn.The following evening the participants gathered at Nuttal's place where Voller also resided.Theodore arrived with Marino.After a discussion about what was to occur Theodore left and Nicholas Te Aonui arrived.Nicholas Te Aonui, Voller and Marino then dressed in overalls and took balaclavas.They set out by car with Taua and Nuttal and drove to the vicinity of the Liquor Barn where Nicholas Te Aonui, Marino and Voller left the car armed with weapons.Taua and Nuttal remained in the car and made telephone contact with Paul Te Aonui whom they picked up and who took over driving of the car, dropping Nuttal and Taua near Nuttal's address.Shortly after that Nuttal, Taua and Ropitini left in Nuttal's car.They heard on a scanner tuned to the police radio frequency that the robbery had been carried out.They went to the address of Taua's girlfriend Ms Allen.A short time later Nicholas Te Aonui, Marino and Voller arrived.They changed their clothes and hid the clothing worn during the robbery and their weapons in a bag in a shed at the property.

[8] Later that evening, the police, who had suspected Nuttal and his associates of the robbery, particularly after having arrested Nuttal in possession of the police radio scanner, executed a search warrant at the address of Ms Allen. They searched for weapons used in the robbery but did not find the bag in which the clothing and weapons were hidden even though it was not well concealed. Taua was arrested at that time, initially for breach of bail conditions.

[9] The following day Ms Allen removed the bag from the shed.She threw the clothes and a hammer in three rubbish bins out of town.She hid the gun under a bush beside a river.However, concerned that that might be found, she went back, retrieved the gun and buried it at a rest stop.Later Nuttal, Nicholas Te Aonui and a third person Uluave visited Ms Allen demanding the bag of clothes and the weapons.Ms Allen helped Uluave retrieve the firearm and he disposed of that.It was not subsequently found.The police later questioned Ms Allen, she took them to the various sites where the clothes and weapons had been disposed of but they were not recovered.

[10] The evidence of Taua was supported to some degree by evidence of the police searches, the staff of the Liquor Barn, Ms Allen and her friend Ms Stephenson who was present when Nuttal and the others sought to retrieve the bag.There was also support from an employee of Telecom who was able to confirm various telephone calls which Taua said were made.

[11] Each accused had made one or more statements to the police.In some instances these constituted mere denials, in others, and particularly those of Paul Te Aonui and Ropitini, there were admissions of involvement driving cars for the gang members and, to some extent, of knowledge of what was going on.

[12] Each accused was separately represented.In addition to attacks on the credibility of the witness Taua, various defence positions were taken.Nuttal gave evidence and denied involvement in any of the activities save to admit that he offered some comments when asked for advice on a robbery proposal by Taua.Counsel for Marino challenged Taua's identification of him as a participant.Theodore gave evidence and denied involvement.He called alibi evidence in respect of the aggravated robbery .

[13] There was also evidence that Marino had spent a considerable sum on clothing shortly after the robbery and was also noticed to be in possession of a substantial amount of cash.Further, there was evidence that he had borrowed a jacket the day before the robbery and that a similar jacket was located at Nuttal's place after the robbery in a pocket of which Marino's community services card was located.This evidence was inconsistent with the claims Marino had made in respect of the jacket in his statement to the police.

[14] The complaints of inconsistency in the verdicts were advanced as follows. First it was said that the verdicts of not guilty on the conspiracy charge, but guilty on the robbery charge in respect of Nicholas Te Aonui were inconsistent in that each rested predominately on the evidence of Taua.

[15] The inconsistency as between the verdicts for the various accused on the conspiracy charge were outlined in the submissions as follows:

1. Taua gave evidence that Nuttal and Theodore planned an offence which included the drawing of a plan.Nuttal gave evidence denying this discussion took place as did Theodore.Theodore was found not guilty.

2. Taua gave evidence of arriving at Nicholas Te Aonui's place, activity going on there, driving to McDonalds and the failed attempt taking place.The involvement of Nicholas Te Aonui and Marino was exactly the same - both at the address, both dressed up, both left in the same car, both picked up and dropped off at the cemetery.There was no evidence to distinguish between them. Nicholas Te Aonui was found not guilty and Marino was found guilty.

3. Taua gave evidence of the involvement of Ropitini as a driver.Ropitini made a statement of driving the vehicle to Nicholas Te Aonui's, to the McDonald's carpark and later to the Ngongotaha Cemetery.Although he denied knowledge of what was going on in his statement he did not give evidence.He was found not guilty.

4. Taua gave evidence of the involvement of Paul Te Aonui as a driver.Paul Te Aonui made a statement of admission in which he said "we stopped then at the McDonald's carpark for a little while and after we then drove out of there and drove up a side street.I dropped them off and kept driving and waited at the Ngongotaha Cemetery ...When did you know they were going to rob the Liquor Barn?Just that night ...Who told you they were going to rob it? ... Nini [Nicholas Te Aonui].What weapons did they have?The other car was carrying the weapons ... What did Nini say to you before you took him home?He just said that when he got there the doors were closed so they didn't do it ... What were Nini and that other fella dressed in when he left Nini's place?They were both dressed in clothes and overalls".He was found not guilty.

5. The position of Voller is distinct because he was discharged at the end of the Crown case.

6. The evidence against Nuttal includes the discussion with Theodore who was acquitted, the exchange of vehicles with Ropitini which was not corroborated except for a cellphone call, being at Nicholas Te Aonui's address and subsequent involvement.Nicholas Te Aonui was acquitted.Ropitini who drove throughout was acquitted and Paul Te Aonui who confessed was acquitted.

[16] On the aggravated robbery charge it is said there was inconsistency in the verdicts in respect of the various accused as follows:

1. Taua gave evidence that Theodore discussed the robbery the previous night and on the evening of the robbery at Nuttal's address.Theodore denied this and called alibi evidence.Theodore was found not guilty.

2. Taua gave evidence about Marino arriving with Reuben Theodore, but this was denied by Theodore.This was the only evidence as to how Marino got to the address.

3. Voller was known to Taua.Taua clearly placed Voller at the address, in the car, alighting from the car, going with the other two robbers and arriving at his girlfriend's place with the two robbers.Voller did not give evidence. Voller was found not guilty, even though there were three robbers and the two co-accused who were alleged to be robbers were found guilty.

4. Taua gave evidence Paul Te Aonui was picked up and then he dropped Nuttal and Taua off.Paul Te Aonui admitted this, although he did not admit to knowing what was going on.Paul Te Aonui had made a subsequent statement admitting to participating in the failed attempt.He did not give evidence. Knowledge could have been inferred as to his involvement in the aggravated robbery.He was found not guilty.

5. Taua gave evidence that Ropitini drove Nuttal and himself to his girlfriend's address and the robbers away from the address.Ropitini was present when the robbers arrived and got undressed.Ropitini in a statement admitted to driving.He denied knowledge.Knowledge could easily have been inferred.Ropitini was found not guilty.

6. The evidence against Marino was exactly the same as the evidence against Voller, except to the extent of the challenge to identity and Marino with money the next day.Taua did not know Marino, whereas he knew Voller.Marino was found guilty yet Voller was found not guilty.

7. The evidence against Nicholas Te Aonui was exactly the same as against Voller, except Te Aonui supplied the vehicle and weapons.The vehicle was sighted at a service station when Paul Te Aonui dropped off Nuttal and Taua. Nicholas Te Aonui was found guilty whereas Voller was found not guilty.

[17] It was accepted on behalf of all appellants that there was evidence upon which their convictions can be sustained.In light of that, in the course of hearing, counsel were asked if they could provide authority for upsetting verdicts, admittedly sufficiently supported by evidence on the ground of inconsistency with acquittals of other co-accused where the evidence was directed to their separate involvement in the criminal enterprise.No case was cited except for the decision of this Court in R v Irvine [1976] 1 NZLR 96.That decision confirmed the general proposition that it is for the appellant to establish that two verdicts cannot stand together in that no reasonable jury properly directed and properly applying their minds to the facts could have reached those verdicts.

[18] A brief glance at the commentary in Adams on Criminal Law, Ch 5.6.03 would have demonstrated that an appeal on the ground of inconsistent verdicts is not an opportunity to retry the case before the Court of Appeal in an attempt to establish that the jury should have assessed the evidence differently.Interference with verdicts on the ground of inconsistency is called for only where the difference in the verdicts requires that the jury have accepted certain evidence in relation to one count or in relation to one accused but must have rejected the same evidence in relation to another count or another accused:Rv Jones (1997) 191 CLR 440.In such a case the verdicts cannot be differentiated rationally.However there is no inconsistency if different verdicts at a joint trial are explicable by differences in the evidence admissible against the accused:R v Osland [1998] HCA 75; (1998) 159 ALR 170;see also R v Tuhoro [1998] 3 NZLR 568, 579.In Osland McHugh J said (para 116):

When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons.First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty.Secondly, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given.

Whatever category fits the case, the setting aside of a conviction on the ground of inconsistency of verdicts is a recognition that the jury has erred in its conclusions either in evaluating the facts or in giving effect to the directions of law in the judge's charge.When the verdicts are in accordance with the evidence and the directions of the trial judge, inconsistency of verdicts is not a ground of appeal.

[19] In the light of these authorities the argument for inconsistency of verdicts in the present appeal must be seen as to a large extent misconceived. Here the evidence against each accused was different.Certainly the Crown case against each accused rested heavily upon the evidence of the co-offender Taua, but he did not give the same evidence in respect of each of the accused and it is always open to a jury to accept the evidence of a witness in part and to reject it in part.It is never the case that because the credibility of a witness has been found wanting in certain respects the whole of the evidence must be regarded as lacking credibility.Accordingly the argument presented to us in its most eloquent form by Mr Bidois, to the effect that those who were convicted must carry a sense of injustice at the acquittal of co-accused against whom the same witness was relied upon, goes nowhere.In respect of each of the co-accused the evidence advanced by the Crown was different, being directed to the particular activities of that person.Further, the accused each made statements to the police to be taken into account only in respect of the charges against him.Each was separately represented and challenged the Crown case in respect of that accused in a particular manner and two of the accused gave evidence before the jury to be assessed, not only against themselves, but also in respect of the co-accused.The jury would have been directed by the Judge to consider each charge against each accused separately and there can be no complaint if the jury discharged its obligation resulting in verdicts of guilty in respect of some accused and not guilty in respect of others.Indeed, as Mr France for the Crown pointed out, the indications are that the jury conscientiously went about its task as directed in that they appear to have disregarded statements made by various accused to the police which implicated other co-accused.

[20] In any event, we are satisfied in this case that reasonable explanations for the different verdicts can be found in the evidence and, relying upon the helpful submissions for the Crown, we can outline these briefly.Some general comments may be made first.Taua was an admitted co-offender.He gave his evidence under immunity.His credibility was strongly attacked.From the verdicts of acquittal it is plain his evidence was not accepted as wholly reliable in all respects.That is understandable given his admitted untruthful statements when first spoken to by the police, the extent to which he contradicted prior statements and the manner he coped with cross-examination.However, there was corroboration of aspects of his evidence from other witnesses and from some of the statements of the accused.It would have been entirely reasonable for the jury to look for some support for his evidence against each accused before dismissing all reasonable doubt.

[21] The gang context in which the activities took place is of relevance. There is a hierarchy within the gang where prospects and those aspiring to that status act and are treated as subservient, doing the bidding of the patched members, as was acknowledged by Mr Theodore in his evidence.Seemingly that included acting as a driver for those disqualified.As Mr Nuttal said in evidence, when the members discuss Mongrel Mob business prospects and others are not included.

[22] Nuttal was convicted of both offences, the conspiracy to rob which failed on 23 May and the subsequent armed robbery on 1 June.He was portrayed by the Crown as the senior participant, organising and controlling but not himself intended to enter the premises.He gave evidence denying participation in the conspiracy discussions, although he acknowledged commenting on a vague plan put to him by Taua.The evidence of his involvement given by Taua was supported by that of Ms Allen who described his arrival at her place with Taua when they wanted the rubbish bag in which they hid the clothing and weapons which she subsequently removed from her shed the following day and disposed of its contents.She also described Nuttal's subsequent attempts with Nicholas Te Aonui and another to recover the contents of the bag.This aspect was confirmed by Ms Allen's friend Kaye Stephenson.

[23] The telephone calls said by Taua to have been made by Nuttal were confirmed by Telecom.And Nuttal was found with the scanner and a cellphone in a car shortly after the robbery.

[24] Marino was also convicted of both offences.He was said to have been one of those who tried to rob the premises on the first occasion and to have entered the premises on the second occasion.

[25] He ran an identification defence relying on limited prior contact with Taua.Rejection of that may well have left the jury more ready to accept Taua's evidence implicating him.There was also the evidence of the "black Raiders jacket" said to have been given to him the day before the robbery which the jury could have inferred was the same jacket as was found by the police after the robbery at Nuttal's place (where the robbers dressed prior to the robbery) and having in the pocket Marino's community service card.

[26] There was evidence of Marino having bought clothing and having substantial cash after the robbery.

[27] Having failed to establish by cross-examination that the person whose participation in the robbery was described by Taua had been mistakenly identified as Marino, there was little basis remaining for the jury to reject his evidence against Marino nor to distinguish between the conspiracy and the subsequent robbery in respect of this accused.

[28] Nicholas Te Aonui was acquitted on the conspiracy charge and convicted on the aggravated robbery charge.The evidence of his involvement in the conspiracy came solely from Taua.But in respect of the robbery his evidence was supported (as in respect of Nuttal) by Ms Allen and Ms Stephenson.

[29] It is also to be noted that in the course of cross-examination of Taua by counsel for Te Aonui the witness acknowledged that in his first video statement to the police he had not included Te Aonui among those he said were preparing for the aborted robbery.The witness said he had been confused.That may have left the jury with doubt on the conspiracy charge.

[30] Accordingly, we are not satisfied there is no rational explanation for the verdicts in respect of Nicholas Te Aonui.

[31] We listened carefully to the arguments from counsel for the appellants that the cases against the other accused were indistinguishable such that it was irrational for the jury to convict the appellants while acquitting the others.As already mentioned, the evidence in respect of each accused was different.While the key witness Taua gave similar evidence in respect of some of them, as it implicated each it was different evidence which the jury was entitled to accept or reject.

[32] In the case of Voller there was no independent admissible evidence implicating him and tending to support Taua's account.In that situation, the jury might well have been left with some doubt as to whether they should rely solely on Taua, particularly in light of his uncertainty when cross-examined by Voller's counsel about his identification of shoes and gloves he had said Voller used.

[33] Ropitini and Paul Te Aonui were implicated as having driven cars.In statements to the police each had admitted to some knowledge of what others intended.Ropitini's junior status (17 years old) and Paul Te Aonui's non-involvement with the Mongrel Mob make it understandable they would not have been regarded as participants in the planning (conspiracy).

[34] While on their statements the jury could have convicted them (particularly Te Aonui) as parties, they may have been regarded as sufficiently remote from the actual robbery to raise doubt as to whether they were true participants rather than merely drivers doing what they were told.

[35] Finally Theodore elected to face the jury, give alibi evidence for the robbery and to deny involvement in the prior planning.That may have been accepted or at least have created reasonable doubt.The evidence against him was solely that of Taua.

[36] Accordingly, we are satisfied there are reasonable explanations for the differing verdicts and each appeal is dismissed.

Solicitors

Chadwick Bidois, Rotorua, for Nuttal and Marino

Simon Lance, Rotorua, forTe Aonui

Crown Law Office, Wellington, for Crown