The Queen v Toleafoa [2008] NZCA 447 (29 October 2008)

Last Updated: 5 November 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA72/2008

[2008] NZCA 447

THE QUEEN

v

LUTHER TOLEAFOA

Hearing: 22 September 2008

Court: O'Regan, Gendall and Fogarty JJ

Counsel: J P Temm for Appellant
M T Davies and N M H Whittington for the Crown

Judgment: 29 October 2008 at 11.30 am

JUDGMENT OF THE COURT

1. We grant an extension of time for filing the notice of appeal to 25 February 2008.

B We decline leave to adduce evidence in support of the appeal.

C We dismiss the appeal.

4. The appellant must surrender himself to the police at the Rotorua police station by 9 am on 31 October 2008 to resume his sentence of imprisonment.
   

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] Mr Toleafoa seeks an extension of time for the filing of a notice of appeal against conviction and sentence on two counts of kidnapping and one count of injuring with intent to cause grievous bodily harm. He was sentenced to five years imprisonment. At the direction of Glazebrook J, the application for extension of time and the substantive appeal were heard together.
[2] The intended appeal against conviction is brought on the basis that there was a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961. The miscarriage is said to have arisen because the evidence of a Crown witness at trial, Tashita McDonald-Rikihana, is alleged to have been false. She is said to have recanted from her trial evidence. Mr Toleafoa seeks leave to adduce evidence in support of his appeal. That evidence is contained in an affidavit from the private investigator, Mr Hikaka. He interviewed Ms McDonald-Rikihana and a transcript of that interview is an exhibit to the affidavit.
[3] The intended appeal against sentence was not pursued in submissions. Mr Toleafoa had served about two years of his sentence when he was granted bail by Asher J pending this appeal. We understand that if he is required to resume his sentence he will almost immediately be eligible for parole.
[4] The notice of appeal was considerably out of time and the Crown contests the granting of an extension of time. The Crown also opposes the admission of Mr Hikaka’s affidavit and argues that, in any event, the appeal should be dismissed if an extension of time is granted.

Issues

[5] The issues requiring determination are:

• (a) Should an extension of time for filing the notice of appeal be given?
• (b) Should leave to adduce evidence in support of the appeal be given?
• (c) Has there been a miscarriage of justice?

[6] The issues relating to the admission of new evidence and the possibility that a miscarriage of justice occurred are interlinked.
[7] Before addressing these issues, we will outline the background facts and the evidence of Ms McDonald-Rikihana which is at the centre of the proposed appeal.

Background

[8] The Crown case at trial was that on 7 August 2005 Mr Toleafoa, along with three of the co-accused, Mr Hill, Mr Dick Tamai and Mr Irving, formed a plan to kidnap an acquaintance. These four men drove in a van around Rotorua in search of the victim. At around 7.30am the van arrived at an address in Otonga Road. At some point Mr Toleafoa, along with Mr Hill and Mr Irving, all went to the bedroom where the victim was sleeping. Mr Toleafoa punched the victim in the jaw with an uppercut. The victim was then permitted to dress and collect his cellphone before he was escorted to the van against his will. These events led to the men being convicted of unlawfully taking away the victim without his consent: s 209(b) of the Crimes Act 1961.
[9] The van was then driven to Mr Dick Tamai’s house in Ngongataha Road where the victim was dragged from the van and kicked on the ground by Mr Dick Tamai before being taken into the garage. In the garage the victim was found to have been kicked and punched for approximately an hour by Mr Toleafoa, Mr Dick Tamai and Mr Hill. He was hit with objects and at one stage Mr Dick Tamai terrorised the victim by using a pair of bolt cutters on his fingers. These attacks formed the basis of injuring with intent to cause grievous bodily harm conviction as well as the kidnapping charge relating to the unlawful detention of the victim: ss 189(1) and 209(b) of the Crimes Act.
[10] Three other co-accused, Mr George Tamai, Mr Noanoa and Mr Batt were also charged with the above offending, but the jury found them not guilty. All seven accused were acquitted of counts of threatening to kill and conspiracy to murder.

The evidence of Ms McDonald-Rikihana

[11] The victim gave evidence identifying all seven accused as present during the offending. However defence counsel attacked the victim’s credibility. As there was no forensic evidence to link the accused to the offending, one of the major issues at trial was the identification of the offenders.
[12] This was certainly true in respect of Mr Toleafoa, whose defence was an alibi. In his statement to the Police he said that he had played pool on the night of Saturday 6 August 2005 and that on Sunday 7 August 2005 he slept until the afternoon. Ms Baumfield gave evidence that supported this version of events, stating she was with Mr Toleafoa on the Saturday night and that they went to bed at 5am. She said that Mr Toleafoa was in bed with her during Sunday morning. Although she had been drunk the night before and was asleep during the incidents which led to the charges against Mr Toleafoa, she said that he could not have left the bed without her knowing.
[13] Ms McDonald-Rikihana was one of the Crown witnesses at trial. Her evidence-in-chief implicated Mr Toleafoa in the offending. At the time of the offending she was in a relationship with Mr Dick Tamai and her evidence was that she saw a number of the co-accused, Mr Toleafoa, Mr Hill, Mr Dick Tamai and Mr Batt in particular, when they came to the house in Ngongataha Road.
[14] In relation to Mr Toleafoa, Ms McDonald-Rikihana said that she saw him arrive in the van with the victim at Ngongataha Road and also saw him enter the garage with the victim. After a time she said that she entered the garage to talk to Mr Dick Tamai. Upon entering she saw Mr Dick Tamai with the bolt cutters and said that Mr Toleafoa and Mr Hill were sitting with the victim “getting cheeky”. At trial she positively identified them.
[15] In cross-examination Ms McDonald-Rikihana was questioned extensively about the inconsistencies between those she identified in her evidence-in-chief, compared to those she had identified in her initial statement to the Police.
[16] In her initial statement to the Police on 9 August 2005, Ms McDonald-Rikihana had identified Mr Dick Tamai, Mr Hill, Mr Batt, Mr Irving and Mr George Tamai as present at Ngongataha Road. She said all of those she had identified, except for Mr Dick Tamai, kicked the victim. Importantly, she did not include any reference to Mr Toleafoa in her initial statement.
[17] On 31 July 2006, almost a year after the first statement, and two weeks before the trial, Ms McDonald-Rikihana made changes to her initial statement. She said that she had omitted to identify Mr Toleafoa in her initial statement. She said that she did this to protect Mr Toleafoa, but that in fact he had been present during at Ngongataha Road and heavily involved in the attack, kicking the victim in the ribs and head. She also retracted her inclusion of Mr Irving as being present at Ngongataha Road, saying that she could not now remember him being there.
[18] At trial and in the amended statement to the Police she said that when she made her initial statement she was scared of her partner of the time, Mr Dick Tamai. He was the father of her four-month old child and did not want him to go to jail. He had urged her to blame the incident on Mr Irving and she had done so accordingly.
[19] Ms McDonald-Rikihana’s previous inconsistent statement and omission of Mr Toleafoa was nonetheless pressed by counsel for Mr Toleafoa, Mr Temm, in his cross-examination of Ms McDonald-Rikihana at the trial. Mr Temm put to Ms McDonald-Rikihana that she was mistaken about Mr Toleafoa being present at Ngongataha Road; and he questioned her about whether she was at trial willingly and whether she was under pressure to give evidence and to name Mr Toleafoa. There was extensive cross-examination on these points.

The new statement given by Ms McDonald-Rikihana

[20] After Mr Toleafoa was convicted and sentenced, Mr Temm instructed private investigators to inquire into the reasons that Ms McDonald-Rikihana changed her initial statement. For reasons which are not entirely clear, the investigator who was first engaged did not undertake the requested task. The instructions to that investigator were cancelled and on 1 May 2007 Mr Temm instructed Mr Hikaka, a licensed private investigator and former police officer, in the matter. Mr Hikaka obtained a detailed statement from Ms McDonald-Rikihana on 10 May 2007. Mr Hikaka has sworn an affidavit that was tendered in support of the appeal. The written record of Ms McDonald-Rikihana’s statement is an exhibit to the affidavit.
[21] In her statement to Mr Hikaka, Ms McDonald-Rikihana recanted her evidence at trial and her amended statement to the Police. She stated that her initial police statement (which was replicated in depositions) reflected the true version of the events which she witnessed and that she had given false evidence at trial. She explained that the reason she changed her statement was that at some time in July 2006 she was threatened by Mr Irving’s father, Mr Rex Maney, who she stated was a patched member of the Mongrel Mob, and by Mr Irving’s girlfriend. She said that Mr Maney held a gun to her head and instructed her change her statement so that she removed any reference to his son, Mr Irving, and replaced it with reference to Mr Toleafoa, who he said had “hit on” Mr Irving’s girlfriend a few weeks before.
[22] In her account to Mr Hikaka, Ms McDonald-Rikihana said that she agreed to do what Mr Maney told her to do and that she informed Mr Dick Tamai that she was going to change her statement accordingly. He allegedly told her to include his own name, but not to mention Mr Toleafoa.

Should an extension of time to appeal be granted?

[23] Mr Toleafoa was convicted on 30 August 2006 and sentenced on 27 October 2006. His notice of appeal against conviction is dated 12 April 2007, but was not received by this Court until 25 February 2008. This means that the notice of appeal was received almost 15 months after the time for appealing had elapsed.
[24] On behalf of Mr Toleafoa, Mr Temm argued that an extension of time should be granted, given the unusual circumstances of the case. The case for the granting of leave is as follows.
[25] Soon after Mr Toleafoa was sentenced, Mr Temm instructed an investigator to investigate the circumstances leading to Ms McDonald-Rikihana changing her evidence. The investigator initially instructed did not complete the tasks, and a second investigator, Mr Hikaka, was not engaged until April 2007, by which time the time period for appealing had elapsed, but there was still no firm basis for an appeal. Mr Hikaka reported to counsel in May 2007 and recommended that further investigations be undertaken. It was initially envisaged that this would occur, but Mr Toleafoa and his family were unable to pay for Mr Hikaka’s initial report for some time, and no decision could be made about whether further investigations would follow. Eventually these investigations were not pursued. Mr Toleafoa signed a notice of appeal as soon as it was apparent that grounds might exist for the filing of an appeal, but nothing was filed until the basis on which the appeal was to be pursued had been established.
[26] The Crown’s opposition to an extension of time being granted focussed on the delay between the initial report by Mr Hikaka (May 2007) and the receipt of the notice of appeal by this Court (25 February 2008). Counsel for the Crown, Mr Davies, argued that this delay was not adequately explained. He argued that the Crown would be prejudiced by the delay because, if a new trial were ordered, the Crown would now be unlikely to be able to call Ms McDonald-Rikihana to give evidence because of her departure for Australia. He said that this departure had occurred only recently, and if the appeal had been filed earlier this detriment may not have been suffered by the Crown. Mr Davies emphasised in his submissions the public interest in the finality of litigation in cases like the present: R v Tohu [2008] NZCA 89 at [28].
[27] The power to extend the time within which an appeal must be filed is contained in s 388(2) of the Crimes Act 1961. The test to be applied was set out in R v Knight [1998] 1 NZLR 583 at 587, and that test was recently affirmed in R v Lee [2006] 3 NZLR 42. As Richardson J stated in Knight at 587, the Court must exercise its discretion under s 388(2) in a way which meets the overall interest of justice in a particular case. This may call for the balancing of the wider interest of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed.
[28] In Lee at [106], the Court observed that that balancing exercise would be informed by a number of relevant factors. Those factors, which are set out at [99] of Lee, are the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[29] We are satisfied that an extension of time should be granted in this case, notwithstanding the delay. The efforts made on Mr Toleafoa’s behalf to investigate the circumstances in which Ms McDonald-Rikihana’s evidence was given, and then to undertake further inquiries relating to other Crown witnesses, took much longer than they ought to have, but this appears to have been related partly to inactivity on the part of the first investigator and partly to the difficulties in raising finance to pay for the investigations undertaken and for further investigations. We do not see there being any significant prejudice to the Crown: the reality is that Ms McDonald-Rikihana was a reluctant witness at trial and would be at a re-trial, and although her departure for Australia underlines that reluctance, it is likely to have always been a factor even if the appeal had been filed promptly after her interview with Mr Hikaka occurred. We are satisfied that the proposed appeal raises matters which have sufficient cogency to warrant full consideration by the Court. Accordingly, we grant the extension sought by Mr Toleafoa.

Should the new evidence be admitted in support of the appeal?

[30] Mr Temm seeks to adduce in support of the appeal the affidavit from Mr Hikaka which recounts the circumstances surrounding his interview with Ms McDonald-Rikihana, and exhibits a transcript of that interview. Mr Temm said he had anticipated that he would be able to obtain an affidavit from Ms McDonald-Rikihana and that she would be able to be made available for cross-examination at the appeal. However, his efforts to obtain an affidavit from her did not bear fruit and, as noted earlier, she has now left New Zealand and will not be available to give evidence or to be cross-examined.
[31] As we noted at the beginning of this judgment, the questions as to the admissibility of this evidence and as to whether a miscarriage of justice occurred are closely interlinked. The test for admissibility of the evidence is that it must be sufficiently fresh and sufficiently credible to justify its admission, but the discretion to admit evidence in support of an appeal is exercised in whatever manner will further the interests of justice, both to an appellant and to the Crown: R v Bain [2004] 1 NZLR 638 at [22] – [23] (CA). If evidence is admitted, the Court will then consider its cogency, which requires an assessment of whether the new evidence, when considered alongside the evidence given at trial, might reasonably have led the jury to return a verdict of not guilty: Bain at [24].
[32] There is no doubt that recanted evidence which became available only after a trial is likely to be treated as fresh, but the credibility of the evidence is more debatable in this case. In order to evaluate where the interests of justice lie in this case, it is appropriate that we first turn to the legal principles which apply when a witness recants his or her trial evidence. Once we have done that, we will return to the issue of whether the evidence should be admitted.

Principles relating to recantations

[33] The legal principles to follow where a crucial witness recants after trial are set out in R v M CA135/05 4 July 2006:

[12] ... An appeal against conviction in situations where a crucial witness recants after trial can only be on the basis that there was a miscarriage of justice, or a risk of that, in terms of s 385(1)(c). Recantation may reflect human family pressures in a situation and a Court may reject new evidence where it differs from evidence at trial, in declining to treat a retraction as warranting disturbance of the jury’s verdict. An example is In re O’Connor and Aitken (No. 2) [1953] NZLR 776. The Court has to be alive to the allowing of the criminal justice system to be manipulated because a key or critical witness has regretted the consequence of giving truthful evidence.

[13] The position in New Zealand is encapsulated in R v Barr (Alistair) [1973] 2 NZLR 95, 98 (CA) where the approach of the English Court of Criminal Appeal in R v Flower [1966] 1 QB 146 was adopted. In Flower it was said (at 150):

If the witness’s new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons. Some may become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness’s state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time. It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness’s account in this court differs from that given in the court below. So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony.

[14] This Court also adopted a further passage from Flower (at 98):

Having heard the fresh evidence and considered the reliability of the witness, this court may take one of three views with regard to it. First, if satisfied that the fresh evidence is true and that it is conclusive of the appeal, the court can, and no doubt ordinarily would, quash the conviction. Alternatively, if not satisfied that the evidence is conclusive, the court may order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial. The second possibility is that the court is not satisfied that the fresh evidence is true but nevertheless thinks that it might be acceptable to, and believed by, a jury, in which case as a general proposition the court would no doubt be inclined to order a new trial so that that evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course. Then there is a third possibility, namely, that this court having heard the evidence, positively disbelieves it and is satisfied that the witness is not speaking the truth. In that event, and speaking generally again, no new trial is called for because the fresh evidence is treated as worthless, and the court will then proceed to deal with the appeal as though the fresh evidence had not been tendered. ([1966] 1 QB 146,149-150).

[34] In R v M, the evidence before the Court was an affidavit from the complainant, R, swearing that the evidence given at trial against the appellant, that he had committed sexual crimes against her, was wholly untrue. There was some suggestion that her mother may have pressured her after trial to recant her evidence. R was also cross-examined before the Court.
[35] The Court considered that it was not able to rule that what the witness had said in evidence at the hearing of the appeal was true. Nonetheless, it considered that it was possible that if that evidence was presented before a jury, a conviction would not necessarily follow: at [15]. Accordingly it saw the evidence as being in the second category in Flower and ordered a retrial on the counts involving R.
[36] Without the benefit of the Court hearing evidence from Ms McDonald-Rikihana herself (or at the very least an affidavit from Ms McDonald-Rikihana), we cannot be satisfied that the hearsay account of what she now says is her evidence is true. If there was any prospect of Ms McDonald-Rikihana giving evidence in support of the appeal, we may have been prepared to adjourn the hearing to allow that to occur. But as she has now left the country, and we were told that there is no prospect of her giving evidence in support of the appeal.
[37] This is a similar situation to that faced by the Court in R v Maney CA244/03 11 August 2003. In that case a Crown witness recanted from her trial evidence. The Court determined that her evidence in this Court was untrue (so the third possibility in Flower applied). In addition (and more importantly for present purposes) there was evidence of a private investigator, Mr Bradley, who was told by another Crown witness that she had given false evidence at trial. Mr Bradley was cross-examined on appeal. The Court did not grant leave to adduce his evidence. The reasons provided were (at [63]):

As to Mr Bradley’s evidence about what Carolyn Lyman told him, we do not of course take any issue about what he said happened. But what he deposed to was hearsay, quite untested by even examination in chief, let alone cross-examination.

[38] We are driven to the same conclusion in this case. It is simply not possible for us to evaluate the credibility of Ms McDonald-Rikihana’s recantation on the basis of a hearsay version which is not only untested by cross-examination but also unsworn. We are faced with a situation where her evidence both pre-trial and (now) post-trial supports Mr Toleafoa’s position, but her evidence at trial does not. Her pre-trial statements are unsworn, as is the statement taken by Mr Hikaka. Her only sworn evidence is the evidence she gave at the trial. Given the circumstances in which her evidence was given at trial, we have to be alive to the possibility of an attempt to manipulate the criminal justice system, and it would be wrong and unfair to the Crown to treat Ms McDonald-Rikihana’s unsworn statement as a credible recantation of her sworn trial testimony.
[39] We are conscious that the “fresh and credible” test affirmed in Bain is not inflexible, and for that reason we will consider the overall context before determining whether or not it is in the interests of justice to admit the new evidence. A number of points inform that analysis.
[40] The first, and most important, is that the jury was alive to the possibility that Ms McDonald-Rikihana was giving false evidence at trial. As explained above, Mr Temm thoroughly pressed the point that Ms McDonald-Rikihana had given previous inconsistent statements to the Police on this point. Her prior inconsistencies were also raised by defence counsel for Mr George Tamai. Some of her evidence at trial in relation to the other co-accused was materially different from her evidence in the police statements and counsel drew attention to this. The potential unreliability of her evidence was clearly illustrated in the cross-examination and highlighted in the Judge’s summing up.
[41] In addition, the jury knew Ms McDonald-Rikihana was a reluctant witness. On two occasions she indicated in the presence of the jury that she would not give evidence to the Court and on 16 August 2006 Asher J held her in contempt of court under s 352 of the Crimes Act for refusing to take an oath to give evidence. She was detained in custody for two days after she refused to give evidence. Asher J expressly commented on this in his summing up, making it clear that her reluctance was a matter which the jury could consider when assessing the reliability of her evidence.
[42] Ms McDonald-Rikihana’s evidence was not necessarily essential to the Crown case. The other identification evidence available to the jury was:

• (a) The evidence of Ms Caulfield, who said that the Mr Toleafoa came to her door on the Sunday morning with some of the co-accused to find out if she knew where the victim was. In cross-examination Ms Caulfield said she did not know Mr Toleafoa’s surname and could not recall what he was wearing, however she firmly maintained he came to her house;
• (b) The evidence of Ms Bray, from whose home on Otonga Road the victim was taken and who was present when he was taken. She described one of the men, who she did not know, as being short, bald, of solid built and with tattoos on his forearm. She said that this man punched the victim in the jaw. In cross-examination she said to Mr Temm that she saw tattoos on both his forearms, where in fact Mr Toleafoa had tattoos on only one forearm, although she did say phrase that with the qualifier “from what I can recall”. She also stated that she had not seen that man since the offending and that she could not recognise anyone in the courtroom as being the man that she described;
• (c) The victim’s identification and statement of events. The victim knew Mr Toleafoa and identified him as present and involved in the kidnapping and attack, including punching him in the jaw at Otonga Road and kicking him in the garage at Ngongataha Road.

[43] Mr Temm argued that Ms McDonald-Rikihana’s evidence was crucial, because it bolstered the identification evidence of Ms Caulfield and Ms Bray, which was in far less certain terms than that of Ms McDonald-Rikihana. That, in turn, undermined the alibi defence of Mr Tolefoa.
[44] We accept the submission of Mr Temm that the evidence of Ms McDonald-Rikihana was of some significance to the Crown case. But the jury was aware that she had previously given a different account of events and of her extreme reluctance to give evidence. What weight the jury put on her evidence is unknown. If we had sworn evidence before us, which, after cross-examination, we found to be, if credible recantation evidence were adduced, we would accept that it would be sufficiently cogent to be admitted in support of the appeal. We are satisfied however, that it would not be in the interests of justice to proceed on the basis of unsworn, untested evidence.
[45] As Mr Davies rightly pointed out, it would be unfair to the Crown, as representative of the community, to treat as credible the hearsay statement of Ms McDonald-Rikihana, given that she has left the country in circumstances suggesting that she seeks to avoid giving sworn testimony in support of the appeal and subjecting herself to cross-examination. In the circumstances we are clear that, in the form in which it is presented, the alleged recantation evidence is not credible, and it is not appropriate to admit it in support of the appeal.

Was there a miscarriage of justice?

[46] Having determined that leave to adduce evidence in support of the appeal should not be granted, we have nothing before us to support the contention that a miscarriage occurred. Even if we had allowed the affidavit of Mr Hikaka to be adduced, we would have been in a similar position because we would have had no proper basis to assess the credibility of the apparent recantation.
[47] The appeal against conviction therefore fails.

Sentence appeal

[48] This aspect of the appeal was not pursued. We formally dismiss the appeal against sentence.

Result

[49] We extend the time for appealing but dismiss the application to adduce new evidence and the appeals against conviction and sentence. As noted earlier, Mr Toleafoa has been on bail pending this decision and must now surrender himself to resume his prison sentence.

Solicitors:
Crown Law Office, Wellington