THE QUEEN v PAUL ANDREW TULAFONO [1999] NZCA 70 (5 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 427/98

THE QUEEN

V

PAUL ANDREW TULAFONO

Hearing:	5 May 1999 (at Auckland)
Coram:	Blanchard J Anderson J Robertson J
Appearances:	A G V Rogers and J L McClew for Appellant C B Cato for Crown
Judgment:	5 May 1999

judgment of the court delivered by ANDERSON J

[1] The appellant was tried before a High Court Judge and jury on one count of aggravated robbery and convicted.A sentence of eight years imprisonment was imposed.He now appeals against conviction and sentence.

[2] The Crown case at trial was that the appellant, along with accomplices named Raui, Rongo and Kumar, robbed the Mad Butcher's shop at Mangere in March 1998.It was alleged that one of the offenders remained in a stolen getaway car outside the shop while two of the others, armed with pistols, went into the shop and another accomplice acted as a lookout.The manager of the shop was struck across the mouth with a pistol which was then jammed into the back of his neck to coerce him into opening the safe.About $32,000 in cash and cheques, but mainly cash, was stolen and the offenders decamped.The getaway car was driven to a supermarket carpark approximately 700 metres away and abandoned.The offenders transferred to the appellant's Ford Telstar motor vehicle and left the area.

[3] The appellant was subsequently arrested by the police.When interviewed he told a number of lies about his movements before and after the robbery and admitted in evidence at trial that he had done so.His evidence was that he had been waiting in his Telstar at the supermarket carpark for the purposes of carrying out a cannabis deal with Raui and was surprised when three men arrived at his car.Without complicity in the robbery he drove them to a street in Mangere where he had previously arranged to collect a relative to take her home from Auckland to Huntly where he then lived.The issue of lies and alibi were therefore present in the trial.

[4] Considerable emphasis was placed by the Crown on the admitted fact of the appellant's lying.On this appeal counsel have provided an agreed statement concerning the final address on behalf of the Crown.Counsel submitted that the appellant had admitted lying about important evidential matters and that when deciding whether the appellant was sitting in the carpark to collect Raui it was yet another lie.Counsel for the Crown's submissions included the following:-

The third reason you should reject it is that his narrative is so implausible that it is devoid of credibility.He is expecting Ponch but in get Sam and Alum who he knows.Rather than saying, "Gidday, what are you doing here?" they just said "let's go" (page 110 lines 2 and 3) and he drove off.No "What are you doing here?"Nothing from the other three, "Where are you off to Paul?" The Crown submits his story is silly.

If these other men had planned this robbery and have organised a stolen car they're hardly going to leave no pre-planned transportation where they swap cars.They'd have a second car lined up to get them away from the scene.It's not surprising then that the defence haven't called Ponch Raui about this supposed drug deal.

[5] How counsel for the Crown dealt with the issue of lies when cross-examining the appellant and in his final address, and how the Judge directed the jury on the issue of lies and alibi are issues on this appeal.We will examine them later in the judgment.

[6] Before the jury was empanelled counsel asked the trial Judge to rule on an issue concerning the alibi notice given by the appellant and his ruling was that in respect of an intended defence witness, Mr Thomas Ngere, appellant's counsel could be present but simply as an observer whilst the police interviewed Mr Ngere.In his oral submissions Mr Rogers invited the Court to express an opinion on that procedure but acknowledged that in the circumstances of this case the matter had no bearing on the question whether in fact a miscarriage of justice had occurred.This Court does not consider it appropriate to comment on such a matter which has no relevance to the issues in the case before it.

[7] In terms of the Crown case the appellant could have been found guilty either as one of the gunmen in the shop or as one of the accomplices who remained outside. In the course of his summing-up, the Judge asked the jury to indicate whether if they found the appellant guilty, it was as a gunman or as an accomplice.Having returned their verdict of guilty the jury informed the Court that it was based on "being at the butchery".

[8] A ground of appeal is that there was a miscarriage of justice arising from what the foreman said after the delivery of the verdict.

[9] Counsel for the appellant submitted, in effect, that the jury's remark indicated the reasonable possibility that the jury had determined guilt on the basis of mere presence at the butchery rather than on the basis of criminal complicity.We consider the possibility to be negligible.It does not raise any reasonable concern in our minds that a miscarriage of justice may have occurred.This was not a case of someone who, standing by, may perhaps wrongly have been thought complicit through mere presence.The only reason the appellant could have been present at the butchery was for the purpose of actively participating in the robbery.His defence was one of alibi, not innocent presence.

[10] Mr Rogers criticised the Crown's treatment of lies at trial on grounds which may be succinctly summarised as follows:-

[a] The Crown so emphasised the issue of lies as to raise their significance to the level of possible proof of the charge rather than being relevant merely to credibility.

[b] The Crown challenged the appellant's failure to give the police upon arrest the explanation he gave in evidence and in so doing wrongfully impugned the appellant's right to silence.

[11] On the first matter counsel for the appellant submitted that the issue of lies and their treatment had become so significant that the Judge ought to have given the full direction on lies envisaged by this Court in R v Dehar [1969] NZLR 763.In that case the Court observed:-

If therefore in this case the lies told by the accused were to be relied upon to convict him of the substantive offence it was necessary that the Judge should clearly direct them (1) that they must first consider whether they were satisfied beyond reasonable doubt that the appellant had deliberately lied, and that he could in fact remember the incidents the recollection of which he had disclaimed, and (2) that if and only if they had already come to the conclusion that this was satisfactorily proved, they could consider whether the fact of telling those lies was a fact which, in the circumstances of this case, pointed to guilt, and when added to the rest of the evidence, could prove the substantive Crown case beyond reasonable doubt.

[12] Instead the Judge in this case directed the jury in the following terms:-

Next I want to talk to you about the alibi evidence.You need to be careful here, there are a number of possibilities.But supposing one of them is that you reject it, you don't believe it.Now that doesn't meant that the accused is guilty; as I will be telling you again in a moment or two, people lie for all sorts of extraneous reasons and his involvement in cannabis smoking and dealing might be one of those reasons in this case.On the other hand, if you do believe it, especially if you believe his own evidence that he was not there at the Mad Butcher and was at the Countdown carpark for another reason altogether, then of course you will acquit him.But remember throughout the Crown must prove guilt beyond reasonable doubt so that you are satisfied that that's the right verdict; and if you think there's a reasonable possibility that the alibi evidence is true then that would raise a reasonable doubt in your minds and in that event you should acquit him.

The next subject I want to discuss is the fact that the accused admits that he told a number of lies but as I said just a moment ago, people tell lies for all sorts of reasons and simply because he told lies doesn't mean that he's guilty. Now be careful about that, it's easy to fall into that trap.But think about it, we all tell lies don't we at times, maybe they are white lies but we all do tell lies at times for a variety of reasons and the law has recognised for a long time that simply because an accused person tells lies is not just a way of saying automatically he or she is guilty; and to take that shortcut would be quite unfair and I'm sure you won't.On the other hand, since the accused has acknowledged that he lied then, as a matter of common-sense, you will take that into account when you're deciding what weight you should give to the evidence that he's given here on oath and that is just common-sense isn't it.

[13] In dealing with the Crown's submissions concerning lies the Judge directed the jury as follows:-

Then he asks `what is the defence's response to all that evidence'.He said `well now we have an explanation from the accused'.His explanation is that he was waiting for Ponch to meet him there having carried out a drug deal.The Crown submits that's just an attempt to explain away his involvement in this robbery and he submits that there are a number of reasons why you shouldn't believe him.The first is that he lied to the Police.He's not talking about trivial lies like that he lived 30 years or 20 in Mangere, but those more significant lies as to whether he was with anybody, for example, when he went back to Halswell Street; those are the important lies he says.And you should remember what Madonna's evidence was, both as to the gun but also as to what the situation was when they came back to Halswell Street.He points out that the evidence that the accused gave that Ponch came out at that stage is just not supported by the people there.

Then he did put it to you that if he had an innocent explanation why didn't he come forward with it to the Police.Well now, I have to say to you Mr Foreman and jurors, if in fact he was smoking and dealing cannabis then whilst that would have been an explanation as to why he wasn't there it's hardly an innocent one and you need to take into account whether in fact someone in his circumstances would have come forward immediately and indicated that.

[14] We do not accept that the Crown in fact or in appearance elevated the issue of lies to the level of proof of the charge.In any event, the trial Judge's directions made it perfectly clear that the issue of lies went only to credit and we do not accept that the jury might reasonably have understood lies to be proof of guilt.It seems to be unusual for an accused who has been convicted in a case where lies are in issue to claim to have been disadvantaged because the trial Judge declined or omitted to give a full lies direction. Such a direction contemplates the possibility of lies being capable of tending to prove a Crown case and such a suggestion is inherently more helpful to the Crown than to an accused.In this case we think the Judge was entirely correct in restricting the issue of lies to matters of credit and we are not persuaded that there was any miscarriage of justice in consequence.

[15] The second matter, that is whether the Crown's challenge to the appellant's failure to give the police the explanation he gave in evidence, can in some cases raise difficult issues whether an adverse comment appropriately reflects on the credibility of evidence or whether it unfairly attempts to suggest that silence may be evidence from which guilt could be inferred.This difficulty was discussed, for example, in R v Coombs [1983] NZLR 748, 752, and examined in subsequent cases, for example R v Henwood, CA 121/97, 23 June 1997 and R v Winterburn, CA 30/98, 8 October 1998.

[16] The present case did not involve silence or evasiveness amounting to no explanation, followed by an exculpatory explanation at trial.Here the appellant, when interviewed by the police, gave an explanation containing significant and subsequently admitted lies.In such circumstances the Crown must reasonably be entitled to challenge an accused's credit in respect of an exculpatory explanation at trial on the basis of his confessed mendacity at interview.To the extent in this case that there might have been some theoretical risk that the jury might equate the previous lack of candour with guilt, the trial Judge obviated any such risk with his suggestion to the jury that the nature of the explanation given at trial, namely that related to smoking and dealing in cannabis, was in effect conduct which the appellant would be reluctant to admit upon interview.We are not persuaded on this ground that there has been any miscarriage of justice.

[17] We turn now to the appeal against sentence.Although that is not founded on unjust disparity, we think it appropriate to refer to the sentences imposed on the co-offenders.Kumar, whom the Judge observed was the youngest member of the party and who had been drawn into the venture without really knowing what was going on, received a sentence of 18 months imprisonment.Rongo and Raui were mature men with a history of convictions.Rongo received a sentence of six years imprisonment and Raui, who was sentenced by the same Judge as this appellant was, received eight years imprisonment.The Judge considered there to be certain aggravating features in the case of Raui indicating a starting point of 9-10 years imprisonment, but this was reduced to eight to give him credit for his guilty plea.The Judge considered the appellant to be a major player, if not the ring leader, and he found nothing amounting to any significant mitigation.Accordingly he imposed the same sentence as that imposed on Raui.

[18] Mr Rogers submitted that the sentence imposed on the appellant was manifestly excessive and should have borne a relationship to that imposed on Rongo, in which case, he argued, the appropriate sentence would have been seven years imprisonment and not eight.We think such an argument tends to underrate the real discounts available to those who acknowledge guilt in a timely way.A sentence of eight years is unremarkable for a serious, premeditated, planned and violently executed robbery with arms.The manager of the butchery was dealt with in a brutal and terrifying way, as the gunmen must have anticipated since the plan clearly involved coercing the manager into opening the safe. The sentence was fully merited.The appeals against conviction and sentence are both dismissed.

Solicitors:

Anthony Rogers, Auckland, for Appellant

Crown Solicitor, Auckland