THE QUEEN v MICHAEL DENNIS BALEITAVUKI [2003] NZCA 240 (24 October 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/03

CA159/03

THE QUEEN

v

MICHAEL DENNIS BALEITAVUKI

KANE WESLEY ABBOTT

Hearing: 21 October 2003

Coram: Anderson J

Fisher J

Salmon J

Appearances: P H H Tomlinson for Baleitavuki

R M Mansfield for Abbott

A R Burns for Crown

Judgment: 24 October 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1] The appellants, along with Ross Lesley Romana, were tried by a District Court Judge and jury on an indictment alleging 17 counts relating to aggravated robberies and the conversion of motor vehicles to facilitate those crimes.By the end of the case for the Crown, discharges pursuant to s347 of the Crimes Act 1961 had been entered in respect of many of the counts, leaving each appellant to face two counts of aggravated robbery.Mr Baleitavuki was convicted of the aggravated robbery of a jewellers known as Diamond and Time and was acquitted in respect of the aggravated robbery of Partridge Jewellers.Mr Abbott was convicted of the aggravated robbery of the ANZ Bank at Penrose and acquitted in respect of the aggravated robbery of the National Bank at Pakuranga.

[2] The grounds of appeal in respect of each appellant are first, that the guilty verdict is unreasonable or cannot be supported having regard to the evidence; and, second, that a miscarriage of justice has been occasioned by bias on the part of the Judge, exemplified by unfair questioning of Mr Abbott following his examination by counsel.Relevant to that aspect of the appeal is that Ross Romana had pleaded guilty, at the beginning of the trial, to the aggravated robbery of the ANZ Bank, Penrose, and National Bank, Pakuranga.

Factual background

[3] The Crown case was that a number of men, including the three on trial, were participants in aggravated robberies organised by Vai Lauena who was known to his associates as “Uncle”.The robberies involved various combinations of Vai Lauena’s accomplices.The robbery targets were banks (often National Banks whose well known trademark caused the robbers to refer to them, amongst themselves, as “green horses”) and high quality jewellers.Robberies were carried out in normal business hours when the robbers, their features concealed by disguises, would burst into premises with deliberately intimidating noise, leaping over counters in the case of banks in order to steal money and smashing display cases in the jewellers premises in order to steal valuable jewels.

[4] The robbers employed the well-known get-away method of two cars, stolen for the purpose, one being left at a relatively short distance from the target premises as a transfer vehicle which would not have been observed at the scene of the crime.The Crown case was that Mr Baleitavuki was the get-away driver in respect of the robberies of the jewellery premises and that Mr Abbott was the get-away driver in respect of the banks.

[5] The Crown case was crucially dependent on the evidence of Vai Lauena, who had earlier pleaded guilty to some of the crimes in which he was complicit and had admitted to the Police others of quite a serious nature with which he has not been charged.In acknowledgement of his guilty pleas and expressed willingness to testify against accomplices, including the appellants, Vai Lauena received, as the ring leader, the very lenient sentence of six years imprisonment.The vulnerability of his credit by reason of the incentives of a reduced sentence and non-prosecution in respect of other matters was fully exploited by counsel for the appellants at trial.The essential issue was identity in the case of each.The only evidence against Mr Baleitavuki on that issue was the testimony of Vai Lauena.In respect of Mr Abbott, there was Vai Lauena’s testimony together with evidence of intercepted communications, in particular, of discussions between Mr Baleitavuki, Mr Abbott and a man known as Jade Haitoua.There was also evidence of an earlier meeting at a motel between Vai Lauena, Jade Haitoua, Ross Romana and Mr Abbott.That meeting was arranged following an inquiry by the Police, at Mr Abbott’s house, in connection with the robbery of the National Bank at Pakuranga.

Arguments on appeal

[6] Mr Tomlinson submitted on behalf of Mr Baleitavuki that the guilty verdict was unreasonable having regard to two matters in particular.First, that Vai Lauena was discredited and inherently discreditable as a witness and second, that the jury’s verdicts of acquittal in the case of Partridge Jewellers and conviction in the case of Diamond and Time were irrationally inconsistent when acceptance of Vai Lauena’s evidence was essential to conviction on each of them.Mr Mansfield submitted on behalf of Mr Abbott that the verdicts of acquittal and conviction were, similarly, irrationally inconsistent.

[7] As we have mentioned, the second ground of appeal for each appellant, bias, was founded on the following exchange between the trial Judge and Mr Abbott at the conclusion of his examination by counsel.

QUESTIONS FROM THE COURT:

Mr Abbott, it is fair to say isn’t it from all of your evidence.That a large number of your close friends are serious criminals?...Ah, yes

And – you are expecting the jury to believe that you are the exception, is that right?...Uhm, I’m no angel, but I didn’t do what I have been accused of doing

And in particular you are very friendly with those two, that is what we have been hearing isn’t it?...Yes

And Mr Romana, as we all know, is an aggravated bank robber is he not?...Yes

And many of the conversations involve you, Mr Hitua (sic) another good friend of yours, and these two, and in varying combinations – yes

Yes – but somehow, they have got it all wrong about you and the man sitting next to Mr Romana, that is what you are saying isn’t it?...Yes

And everybody else, everyone else that you have acknowledged is a serious criminal were involved in the robberies, yeah?...I wouldn’t say everyone else

No – well lots of names have been put to you, haven’t they?...Yes

We all know that Uncle was though don’t we.Uncle’s big mate, Mr Oliver yes?...Yes that group of friends I know of but I’m not that very close as I said before they are older than us.

Well just a minute Mr Haitoua very good friend of yours?...With the exception of Mr Haitoua.

Oh he’s an exception, right.And you go to motels and have meetings with all these people?...No I did because of the police visit but I don’t normally at all actually.

No, no you told us you went to meet them in a motel?...Yes.

Right so you went to a meeting with them?...Yes.

But you are the exception, they are all involved, all the people in the motel were involved in aggravated robberies weren’t they?...Jade Haitoua was not involved.

Oh he’s not involved?...Well not as far as the police allege.

Was he involved or not, you’re giving evidence Mr Abbott?...No he wasn’t.

Mr Haitoua wasn’t involved in any of the robberies before the Court?...No.

Not one?...Not as far as I’m aware.

[8] Following that exchange, counsel for Mr Baleitavuki submitted, in the absence of the jury, that the Judge should discharge the jury and order a new trial on the basis of the Judge’s questioning.Mr Mansfield did not support the application for discharge of the jury but noted his objection to the line of judicial questioning.The Judge formally ruled on the application in the following terms:

[3]Ms Bennett on behalf of the third accused Mr Romana has not supported the application either, although it does not concern Mr Romana.

[4]The first of Mr Tomlinson’s grounds then, is that I entered the arena as an advocate for the Crown to impune the credibility of Mr Abbott.Given that the questioning which I note from the transcript takes up a page, came at the end of a lengthy cross-examination by the Crown with no re examination from Mr Mansfield there is now no opportunity to bury my questions in any further evidence.

[5]The questioning in his submission would leave open to the Jury the impression of bias on the part of the Court,He provided initially an authority in support, the Court of Appeal decision of Cochrane v Ministry of Transport, and since then I have been provided with other Court of Appeal authorities which have all been helpful and all set out the well established principles where matters such as these have been considered.

[6]The upshot then of Mr Tomlinson’s submission in respect of his first ground, is that the Court created an unfair situation for his client; probably for all three of the accused.

[7]The second part of his application relates to this one question in particular by Mr Northwood and I will return to that in a moment; but again it should be noted that Mr Mansfield, while objecting to the question and to that extent supporting Mr Tomlinson’s submissions, does not wish it to be a point in favour of the trial ending at this stage, but he may seek some sort of clarification by the Crown in front of the Jury, if that is what he decides is the appropriate course, and I have yet to hear from him on that.The important point being of course that he does not consider this an appropriate ground for the trial to be declared at an end.

[8]The principles of course of judicial intervention in Jury trials are well established.If a Judge crosses the line and goes into the arena, and thereby it could be perceived as creating a situation where the Jury might perceive some bias, then the Court of Appeal has on occasion held that that could have had an adverse impact as far as the accused is concerned on the outcome of the trial.

[9]One difficulty with this application is whether or not Mr Tomlinson actually has any standing when it was not his client that was questioned; however, that has not hindered him from bringing it and he is of the view that the situation created is unfair to all accused.

[10]The real difficulty as I see it is this.Were I to grant this application and accept that Mr Tomlinson has standing to bring it, it would deprive Mr Mansfield’s client not only of the possibility of an acquittal, but also if convicted on either or both of the counts that he faces, it would deprive him of an appeal point which his Counsel has made well apparent to me that he considers has substance.I cannot see how that could possibly be fair from the point of view of Mr Abbott who is most nearly concerned with the ground of judicial intervention.

[11]Accordingly I am of the view that that ground must fail and any examination of judicial intervention in this trial should go to the appropriate forum if matters progress to that stage.

[9] The essential argument on behalf of each appellant was to this effect:

(a) Without the evidence of Vai Lauena there would be an insufficient evidential basis to support a conviction.

(b) An attack on Vai Lauena’s credit was central to the defence cases.

(c) Mr Abbott’s credit was also in issue because he gave evidence which, if accepted as reasonably possible, would have entitled him to acquittal.

(d) The tone and content of the Judge’s questioning of Mr Abbott attacked his credit, the credit of his co-accused including Mr Baleitavuki and indirectly indicated support for Vai Lauena’s credit.This showed judicial favouritism on crucial issues such that the appellants were deprived of a fair trial.

Crowns submissions on appeal

[10] We do not intend to deal extensively with the Crown’s submissions in respect of the first ground of appeal because we accept the Crown’s argument that there was an adequate evidential basis for the guilty verdicts and an appropriate factual and legal basis for the jury’s distinguishing between the counts on which they convicted and those on which they acquitted.It is trite that a jury is entitled to accept some parts of a witness’ testimony and reject other parts.The testimony of Vai Lauena called for strict scrutiny and one may ascertain an evidential justification for the jury to have considered there was a reasonable doubt in respect of the counts on which they returned verdicts of acquittal.In Mr Baleitavuki’s case, Vai Lauena had made a videotaped Police statement in which he made no mention of any involvement by Mr Baleitavuki in the Partridge jewellery robbery.That could well explain why the jury was not prepared to accept his testimony at trial that Baleitavuki was in fact the get-away driver from that robbery.In the case of Mr Abbott, certain comments made in the course of intercepted communications were inconsistent with that appellant’s complicity in the “green horse” robberies.It could be inferred from the tenor of Vai Lauena’s evidence that he might be as indifferent to implicating people wrongly as rightly.The jury had before them an adequate basis for distinguishing the weight it was prepared to place on different parts of Vai Lauena’s testimony.

[11] In relation to the second ground of appeal, the Crown submitted that although the questioning of Mr Abbott by the Judge did not appear to be for the purpose of clarification, it nevertheless covered material which had already been addressed by the prosecutor in his cross-examination of Mr Abbott.The nature and extent of the Judge’s involvement fell far short of the judicial intervention impugned in R v Loumoli [1995] 2 NZLR 656 and R v Fotu [1995] 3 NZLR at 129.The single intervention was in the context of a long trial conducted without any cause for complaint in any other respect including an eminently fair summing up.It ought be inferred that the intervention in fact caused no prejudice against either appellant in the eyes of the jury because verdicts of acquittal were returned in respect of counts where the credit of both Vai Lauena and Mr Abbott were in issue.This indicated that no miscarriage of justice had in fact occurred.But should the Court think otherwise, then the appeal should be dismissed pursuant to the proviso to s385 of the Crimes Act on the grounds that no substantial miscarriage of justice had in fact been occasioned.

Discussion

[12] As we have indicated, if the first ground for each appellant was the only basis of the appeals, they would be dismissed.For the reasons advanced by Mr Burns, we would not be persuaded that the verdicts of guilty lacked an adequate evidential basis or were irrationally inconsistent.That approach assumes that the appellants had a fair opportunity to challenge the credit of the crucial Crown witness Vai Lauena.In our view they did not.

[13] We were informed by counsel that the oral evidence was recorded on CD ROM and that appellant’s counsel had asked for the disc to be available to this Court so the bench could hear the Judge’s inflexion when she questioned Mr Abbott in the way complained of.That disc was not in fact available to the Court but we found it unnecessary to pursue aural verification of the tenor of the questioning, which is apparent from the transcript itself.The impression which the exchange with the Judge would surely have conveyed to the jury is that in the Judge’s view Jade Haitoua, Vai Lauena (“Uncle”) and Ross Romana were all aggravated robbers.The two appellants associated with those men and each other and were plainly so equally guilty that it would be unreasonable to take issue with any who thought the appellants were, in fact, implicated.

[14] As the Crown acknowledged, the judicial intervention could not be seen as an attempt to clarify evidence.The Judge’s questions would have conveyed the impression that the Judge disbelieved Mr Abbott’s evidence, regarded him as guilty by association with known criminals, and included among the known criminals, Mr Baleitavuki.The apparent message to the jury was unmistakable, whatever the real intention.The impression given was that the Judge accepted the Crown case in relation to both accused and rejected that of the defence.A fair trial was thereby denied.

Conclusion

[15] We are satisfied that the Judge’s intervention deprived the appellants of a fair trial and that in the circumstances the miscarriage of justice is incapable of being characterised as not substantial.Accordingly, in respect of both appellants the convictions are quashed and a new trial is ordered.

Solicitors

P H Tomlinson, Auckland for Baleitavuki

Crown Solicitors, Auckland