THE QUEEN v SOVITE TUISAFIA [2001] NZCA 220 (30 August 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 111/01

THE QUEEN

V

SOVITE TUISAFIA

Hearing:	30 August 2001
Coram:	Richardson P Heron J Chambers J
Appearances:	P S Coles for Appellant J C Pike for Crown
Judgment:	30 August 2001

judgment of the court delivered by RICHARDSON P

[1] Sovite Tuisafia was found guilty by a jury in the District Court at Palmerston North on a charge of wounding with intent to cause grievous bodily harm and following conviction was sentenced to imprisonment for 5 years.He now appeals against conviction and sentence.The conviction grounds are directed to the opening remarks and the summing up of the trial Judge and the sentencing appeal is advanced on the ground that the 5 year sentence imposed was manifestly excessive in the circumstances.

[2] In the early hours of 2 April 2000 Mr Tuisafia and others were at a nightclub.An intoxicated male patron was attacked and fell to the ground. He was helped outside but was attacked again and left lying in the gutter, unconscious and bleeding from the injuries he sustained.He refused subsequently to make any complaint.

[3] However the present complainant, Mr B L Candy, saw the injured man in the gutter and went to his aid.While he was kneeling down checking the man's condition the complainant was attacked.He lay dazed and was stomped on and was kicked on the head in a succession of blows.He was unconscious when the police and ambulance arrived.He had suffered lacerations which required stitching above his left eye, abrasions and broken teeth.He could not identify his assailant.Indeed, he had no recollection of the incident.

[4] The issue at the trial was the identity of Mr Candy's assailant. Some 10 of those present at the nightclub and/or later outside in the street gave evidence and, not surprisingly, given the environment in which the incident took place, there are numerous differences in the evidence as to who did what and where.The key identification witness for the Crown was Ms Sheena Schultz.She identified Mr Tuisafia, whom she described as a very tall, dark person with completely shaven head and face, aged about 24 or 25 and dressed in black, as the person who attacked the first man inside the night club.She said that outside the club she saw him stomping around, fists clenched and screaming obscenities and that when Mr Candy knelt down to check the first victim's condition, Mr Tuisafia came in and kicked Mr Candy again and again and stomped on his head, maybe six or seven times.She said she was about 5 metres away from where the kicking occurred.When asked whether she could identify the assailant from photographs the police showed her, she said she picked out Mr Tuisafia as most likely but was not 100% sure and at the trial made a dock identification.

[5] When interviewed a few days later by the detective Mr Tuisafia denied having gone to the nightclub in question and said he did not know how his fingerprint could have got on to an "Ice" beer bottle found outside the nightclub.Subsequently, when arrested, he declined to say anything or to answer questions and he did not give evidence at the trial.But at the trial it was common ground that he had indeed been at the nightclub and later outside that night.

[6] As the central Crown witness Ms Schultz was in the witness box for far longer than any other witness and was cross-examined and challenged on almost every aspect of her evidence for several hours over two days.Clearly, the jury had ample opportunity to assess her credibility and reliability and, clearly, if they accepted her evidence that Mr Tuisafia was the man who attacked Mr Candy, they were well entitled to arrive at the verdict of guilty.

[7] The challenge by Mr Coles as counsel for the appellant to the verdict in that regard is directed to alleged misdirections and omissions on the part of the Judge in summing up to the jury on the facts.The summing up was appropriately brief and focussed given the limited factual issues for the jury and the extensive addresses from counsel, and no issue is taken with the Judge's directions as to the elements of the offence charged or as to the careful approach the jury were required to take in considering the identification of Mr Tuisafia as the assailant.

[8] At the beginning of the summing up the Judge observed that it had been a very simple and straightforward trial and, although there had been a number of witnesses, the issues that the jury needed to decide really were very limited; that counsel had gone through the evidence in detail;that he, the Judge, would mention only some matters but it was for the jury to decide what was important and what was not;and that if he expressed some view about the evidence the jury was entitled to agree with any view that he expressed, but on the other hand, was equally entitled to reject anything he said quite out of hand because the facts were for them, and for them alone.

[9] The Judge went on to make two general comments about the evidence which Mr Coles has criticised.The first, early on, was as follows:

Very often in a trial of this kind a Judge tells a jury that there will be some witnesses whose evidence they will accept as true and others they won't.This trial is a little bit different because nobody suggests that the Crown witnesses are not telling you the truth, all of the witnesses in this trial have given their evidence quite honestly I suspect - in fact I don't suspect, I am sure they have.They have recounted events as they recall them and I don't think any of them have attempted to mislead you.They have simply given evidence on oath about matters they have attempted to honestly recall and the issue for you to decide here is not their honesty, but the reliability of their evidence, viewed against the background against which these events took place.

When you are coming to a conclusion about the reliability of the witnesses you have heard, you are entitled, of course, to draw inferences from what you have been told.But just remember that those inferences must be logical inferences and not either speculation or guesswork.

[10] The second, a little later:

Now as far as the evidence is concerned, I don't propose to say a great deal about it, but I want you to remember this:there has been a good deal of reference by counsel to issues of detail in the evidence.There has been reference to some differences in the evidence as to times, places, distances, the exact location of people and there isn't any doubt, if you have a look at the evidence, that there are some differences and conflicts in the evidence. But I think you need to remember that in the circumstances like those you are dealing with, it is highly likely that the recollections of people as to these sorts of events will vary.I suggest to you that you would be deeply suspicious if twelve witnesses went into the box one after the other and recited exactly the same story.You'd say to yourself, "good heavens, that can't be right", and your common sense will tell you that this was an event which took place against a background of drunkenness, in the early hours of the morning in a nightclub where presumably there was a good deal of noise and a good deal of interaction amongst people.

I suggest to you as a matter of common sense that you might find it difficult to expect anybody to remember events of that kind with any precision and it is unlikely under those circumstances that all the witnesses you've heard would remember exactly the same thing and be precise about it.

When you are considering all this evidence, please bear that in mind.

[11] After commenting briefly on Crown submissions and at length on their consideration of identification evidence, the Judge continued:

As far as the Defence case is concerned, it is simple enough.Mr Coles simply says to you, if you have a look at the totality of the Crown evidence, it doesn't amount to evidence which is reliable, bearing in mind what I have told you about identification evidence.He says the collective weight of it is not such as to bring your minds to the position where you can be sure it was the accused who committed this crime.

Mr Coles said that there were two important issues for you and he referred to the evidence of the timing of events and he meticulously went through the evidence of various witnesses in support of that submission to you.I have already commented that those are issues for you to decide and that it is for you to decide whether the variations in time that were referred to are of any great significance, bearing in mind that we know when the Police arrived, which was quarter to five, and it was somewhere between half past three and then that this attack seems to have occurred.

He said that the evidence of Mr Nepia, who was called as a Defence Witness, is sufficient for you to have some reservations about the evidence of Ms Schultz.His evidence was that she was grossly intoxicated, that she had consumed huge quantities of alcohol and you are asked to infer from that, that she was so drunk she couldn't possibly have identified anybody.That is a matter for you.

[12] The Judge went on to comment quite briefly on the evidence of two witnesses, Mr Nepia and Mr Wagener.Mr Coles, in his written submissions, submitted that the defence case at trial was:

(i) A direct challenge to the evidence of Ms Schultz on the following bases:

(a) Credibility (as to truthfulness and as to degree of intoxication).

(b) Her description of the clothing of the Appellant as compared to other Crown witnesses' description of the clothing worn by the offender.

(c) The timing of events (the evidence of other witnesses at trial as to the timing and manner of the appellant's arrival at the nightclub could not be reconciled with the evidence of Ms Schultz).

(d) Unreliable evidence of identification (arising from uncertainty of identification from photographic montage and from circumstances of identification at depositions and at trial).

(ii) Failure of the Crown to exclude the Appellant's brother as the offender or to exclude a third person observed at the scene after the incident as the offender.

[13] In relation to item (i)(a) he drew attention to the passage from the summing up cited in para [9] above, submitting that the truthfulness or otherwise of witnesses, and especially the witness Ms Schultz in this case, was entirely a matter for the jury and the direction of the trial Judge on this point unfairly removed a direct challenge made by the defence.In cross-examination she was asked whether she was being honest with the court about her consumption of alcohol but it was not put to Ms Schultz that she had deliberately lied in this case.And there was no suggestion that she had an axe to grind or any other reason to lie.Counsel advised us that in his address he did challenge her credibility as well as her reliability but he did not respond to the Judge's question at the end of the summing up whether counsel considered there was anything which he had not put to the jury or had improperly put to them.And the jury must be taken to have understood the Judge's clear direction given only 2 or 3 minutes before the passage complained of that they were entitled to reject anything he said about the facts which were for them alone (para [8] above).There is nothing in this point.

[14] Next, in relation to (i)(b), Mr Coles' complaint was that the trial judge made no reference whatsoever to a Mr Reader's evidence.He did mention the evidence of Mr Wagener favourable to the defence. Mr Wagener and Mr Reader were together in a car.Mr Coles' submission was that reference to Mr Wagener's evidence while failing to mention the more significant for the defence evidence of Mr Reader did not fairly put before the jury an essential aspect of the defence challenge to Ms Schultz.

[15] Again, in relation to (i)(c), Mr Coles submitted that the Judge undermined the importance of the issue for the defence:first, by the comments the Judge made in the passage cited at para [10] above, and, second, by the inference which Mr Coles sought to draw from a subsequent comment by the Judge that the meticulous analysis by defence counsel was not of great significance.

[16] Finally, in a series of submissions on factual aspects of the case under the headings:the possibility that another person (Mr Tuisafia's brother) was the offender, a further possibility that an unidentified person at the scene might have been the offender, uncertainty of prior identifications and weight to be given to dock identification, and absence of evidence as to physical circumstances of identification within the nightclub, Mr Coles submitted that the Judge could or should have directed the jury on those matters or that remarks the Judge made did not go far enough or could have been counter-productive or could have caused unfairness or confusion to the jury in their factual assessment of the charge.

[17] The short answer to these various complaints about the summing up is, as Mr Pike for the Crown submitted, that it cannot be said that by failing to draw the jury's attention to specific defence points about the possible weaknesses of prosecution witnesses the summing up might be seen as one of those relatively rare instances of failing to put the defence case adequately to the jury so as to come within range of what was said in R v Foss (1996) 14 CRNZ 1;see also R v Maney (CA 450/00, judgment 30 March 2000);that as to timings, to the extent there were minor errors in what was said it could hardly be thought that would deflect the jury from independently completing its task;and that there was simply no evidence that Mr Tuisafia's brother was at the nightclub at the time of the incident.The case did not call for a point by point discussion of the evidence by the Judge.The jury had just heard the detailed address of counsel and the summing up was balanced and appropriate to the occasion.

[18] Mr Coles finally submitted that the combined effect of the summing up and of the opening address to the jury created a situation which was unfair to the appellant and likely to cause a miscarriage of justice.The complaints about the opening remarks were first that at the outset the Judge commented that two of the jurors had served on a jury, adding:

Madam Foreman, members of the Jury I know that two of your number served on a Jury earlier this week, and I hope we get a better result than we achieved on that occasion this time, but how many others of you have been on a Jury, could you tell me - One?

And, second, commenting on their task in assessing the evidence that:

You might think its helpful to note down who the Witnesses are and mark their evidence out of a score of say one to ten so that at the end of the trial you have got something to remind you of the weight that you thought could be attached to the evidence of that particular Witness.It might help you at the end of the day when you are considering the evidence and the verdict that you have to reach.

[19] For the reasons we have given we reject the challenges to the summing up. Mr Coles accepted that the preliminary comments would not in themselves warrant quashing the verdict and accordingly the appeal against conviction must fail but in any event we see no substance in his complaints about those preliminary comments.

[20] We turn to the sentence appeal.It was common ground that the case involved serious violence and the only issue was the length of the term of imprisonment to be imposed.The Judge saw as particular features of the case the serious, quite unrestrained and totally unprovoked violence which was unleashed on the complainant who was acting as a good Samaritan, recognising, however, that Mr Tuisafia belatedly offered some assistance to the complainant;there was apparently no remorse expressed by Mr Tuisafia except for his own family;and he had a previous conviction for assault with intent to injure in 1999 for which he was sentenced to nine months' imprisonment.The court, he said, was required to impose a condign penalty emphasising the importance of deterrence and the protection of the public against that kind of behaviour, but added that on the other hand Mr Tuisafia was a relatively young man and it was important that the sentence was kept to a length which offered some hope for his future.

[21] Mr Coles submitted that whilst the present case involves serious violence it involved a single assailant and a spontaneous act of violence rather than one involving pre-meditation.No weapons were used and witnesses observed the appellant rendering assistance at the scene immediately after the incident.Also, the injuries sustained by the victim were, fortunately, not of lasting significance.Referring to the sentencing decisions in R v Hereora [1986] 2 NZLR 164 and R v Clotworthy (1998) 15 CRNZ 651 he submitted that the proper starting point for sentencing in the present case was at the lower end of the three to five years imprisonment bracket and that a lesser sentence than 5 years was appropriate.

[22] Mr Pike submitted, and we agree, that, while the sentence of 5 years imprisonment is plainly at the higher end of an available range, the circumstances of the attack, however, called for a condign sentence with an emphasis on denunciation.The significant aggravating feature of this case is the brutal attack on a person unconnected with any earlier events who as a member of the public attempted to help the victim of an earlier attack by the appellant.

Solicitors

Peter Sidney Coles, Palmerston North, for appellant

Crown Law Office, Wellington