THE QUEEN v TEANGARUA LUCY AKATERE [2001] NZCA 221 (16 October 2001)

IN THE court of appeal of new zealand

ca114/01 CA115/01 CA116/01

THE QUEEN

V

TEANGARUA LUCY AKATERE

MCCUSHLA PRICILLA FUATAHA

TANIA MAYZE VINI

Hearing:	16 October 2001
Coram:	Gault J Robertson J Salmon J
Appearances:	G C Gotlieb for Appellants K Raftery for Crown
Judgment:	16 October 2001

judgment of the court DELIVERED BY GAULT J

[1] The three appellants appeal against their convictions for the aggravated robbery of a young person at the Three Kings Mall on 12 August 1999.They were convicted after a jury trial during which evidence was given of their involvement by an acquaintance who said she was a co-offender.Another witness identified the appellants as having been in the vicinity on the relevant day. There have now been tendered to this Court, in support of the appeals, affidavits which evidence retractions by the two principal Crown witnesses. The affidavits also put forward facts indicating that the appellants were not involved and were not in the vicinity at the material time.Only one of the appellants gave evidence at the trial.She now deposes that her evidence resulted from confusion with a different occasion.

[2] While much of the new evidence is not fresh in the sense that it could have been obtained with reasonable diligence prior to the trial, the evidence of retractions is not in that category.It is accepted by the Crown as being cogent.

[3] The Crown does not contest the appeals and Crown counsel invites the Court to allow the appeals without directing retrials.

[4] Having read the affidavits and the memoranda in support and from the Crown, the Court is satisfied the convictions cannot stand and that the appeals must be allowed and the convictions quashed.Meantime, the appellants have served virtually the whole of their sentences of imprisonment.Because the affidavits filed in the Court are unanswered by the police, the Crown witnesses and trial counsel, this Court must be careful in commenting not to add further injustice to those that plainly have occurred.But it must be said that the investigation and trial system failed in this case.It is fortunate now that the system encompasses an appeal by which the matter can be rectified.

[5] The affidavits raise questions about the conduct of the police.That is a serious matter and must be properly investigated.We have the assurance of Crown counsel that that is occurring.

[6] We have here three young persons let down by the system.They and their families have been subjected to the demeaning experience of public trial and conviction and rejection of their protestations of innocence.They have been convicted of a serious crime and imprisoned.On the material before us it is plain that should not have happened.We offer our sympathy to them.

[7] At considerable expense for the family of one of the appellants a competent investigator was retained and has painstakingly exposed the unsatisfactory aspects of the prosecution.All three appellants should be grateful to him and to their present counsel.

[8] The appeals are accordingly allowed, the convictions quashed and there is no order for retrial.

Solicitors

Crown Solicitor, Auckland