R v Tawhiti [2009] NZCA 558 (26 November 2009)

Last Updated: 1 February 2015

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT FOR THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL . PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA790/2008 [2009] NZCA 558

THE QUEEN

v

MERVYN RAWARARUHIA TAWHITI

Hearing: 5 November 2009

Court: William Young P, Chisholm and Priestley JJ Counsel: P T R Heaslip for Appellant

N P Chisnall and H R B Stallard for Crown

Judgment: 26 November 2009 at 9.30 am

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed.

B The appellant’s two convictions are quashed.

_{C A retrial on the two counts of aggravated robbery is directed.}

R V MERVYN RAWARARUHIA TAWHITI CA CA790/2008 26 November 2009

D Order prohibiting publication of the judgment and any part of the proceedings (except for the result) in news media or on Internet or other publicly available database until final disposition of retrial. Publication

_{in Law Report or Law Digest permitted.}

REASONS OF THE COURT

_{(Given by Priestley J)}

Background

[1] In October 2008 the appellant was tried in the Tauranga District Court before Judge Rollo and a jury. He faced two counts of aggravated robbery laid under s 235(b) of the Crimes Act 1961. His defence counsel was an experienced Bay of Plenty practitioner Mr A C Balme.

[2] The alleged victims of the appellant (one for each count) were a middle-aged couple who both had a drug history and ran a tinnie house in Tauranga. One evening in July 2007 three men forced entry into the complainants’ home. All three had covered faces. One of the men was armed with a tomahawk. The complainants were assaulted. Some items of property were taken.

[3] The Crown alleged that one of these three men was the appellant. He was not personally responsible for any of the violence which occurred that evening. Instead he waited inside the front door keeping an eye on the situation.

[4] The jury convicted the appellant. Judge Rollo sentenced him to eight years imprisonment.

[5] The appellant challenges the convictions. The sole appeal point is that a miscarriage of justice has occurred because the appellant’s trial counsel failed to call available alibi witnesses.

The trial

[6] The appellant was known to the complainants, and in particular to their

17 year old son Ezra McDonald who gave evidence he had known the appellant for approximately six to eight years. The appellant was a frequent visitor to the McDonald home.

[7] Approximately 3 weeks before the robbery took place the appellant warned the complainant Mr McDonald that some young men, associates perhaps of the Mongrel Mob gang, were going to rob their home. The appellant himself, although not a member of the Mongrel Mob gang was in some way associated with it and was living in a Tauranga house at the time with other Mongrel Mob associates.

[8] The Crown identification evidence against the appellant was not particularly strong. All three members of the McDonald family were assaulted, Mr McDonald severely so with a tomahawk. The Crown did not allege that the appellant was an assailant. Ezra McDonald gave evidence at trial (he had been punched in the face and had pulled his injured father into a bedroom) that he stood in the doorway of a bedroom and observed the intruders. One man was standing in front of the closed front door. He was described as being approximately five foot three or four in height and was wearing a pair of “Etnies” brand shoes of the same style as Ezra McDonald himself wore. The man’s face was obscured by a brown hoodie and a bandana, although curls could be seen protruding. Ezra McDonald gave evidence that on previous occasions he had seen the appellant wearing Etnies shoes which had a distinctive peeling toe and no laces. Such a pair of shoes, subsequently discovered in the appellant’s bedroom, was an exhibit at trial.

[9] Ezra McDonald gave evidence that he called out “Merv” to this man (being an abbreviated version of the appellant’s first name). His evidence was:

I called out a name of one of them. ... I wasn’t too sure if it was him, so that is why I called out his name, and he, he tried, he went to respond to it but he obviously didn’t realise that he shouldn’t try and respond to it because I would be able to identify him. He sort of went to turn around then just turned back just before he turned fully around.

[10] At no stage did the man speak. In cross-examination Ezra McDonald resiled somewhat from this evidence. The impression which the cross-examination evidence gives is that Ezra McDonald, despite not being able to identify the man, had formed the belief by the time of trial that the intruder was the appellant and was exhibiting some reluctance to make any concessions to the contrary.

[11] Ms Christie (the other complainant) gave evidence that she was able to recognise the accused, despite his face being covered, from his build and his eyes. At the time Ms Christie was on a methadone programme.

[12] The aggravated robbery that evening resulted in considerable quantities of blood and broken glass in the complainants’ home. However, there was no forensic evidence linking the appellant’s clothing, including his seized shoes, with that glass and blood. Nor was there any other evidence, other than the identification evidence, directly linking the appellant with the aggravated robberies. It is against that identification background that the availability of alibi evidence becomes important.

Alibi evidence

[13] The appellant never filed a notice of alibi under s 367A of the Crimes Act. (This provision has now been repealed by the Criminal Disclosure Act 2008 but was in force at the date of the trial.) However, Mr Balme advised the Judge in chambers on the morning the trial began that alibi witnesses might be called. The possible witnesses were not named by Mr Balme. The Crown did not seek disclosure of the names or ask for an adjournment to allow the police to undertake the normal inquiries.

[14] The appellant’s instructions to his counsel and what occurred are set out in

Mr Balme’s affidavit filed in this appeal.

5. The nature of the defence had previously been well established with Mr Tawhiti in that it was an identification defence. I had no concerns about cross-examination of Crown witnesses based on the instructions received from Mr Tawhiti.

6. The principal concern I had prior to trial commencing was that

Mr Tawhiti had promised on a number of occasions to bring in two

witnesses who I understood to be Shane Sanders and his girlfriend. The intention was that they would be briefed up to be called at trial to give evidence that Mr Tawhiti had been at an address of

37 Oxford Street, Tauranga through the course of the evening in question and particularly at the relevant time when the aggravated

robberies at 25 Cook Street, Tauranga took place.

7. It had always been Mr Tawhiti’s position, as relayed in his statement to the Police of 27 July 2007, that he was at the address of 37 Oxford Street, Tauranga from 3.30 pm that day and did not leave that address at all.

8. A section 9 admission had been agreed with the Crown governing the attendance (sic) Constable Wrigley at the 37 Oxford Street address at a short time after the aggravated robberies at Cook Street. That section 9 admission confirmed the attendance of Mr Tawhiti at the Oxford Street address at that time.

9. The intention at trial was that the defence would call Mr Sanders and/or his girlfriend to confirm what Mr Tawhiti had told the Police, namely that he had been in attendance at 37 Oxford Street throughout the evening.

10. At the end of the first day of trial I met with Mr Tawhiti to discuss how we were going to brief these witnesses given that he had still not brought them to me. He assured me that he would have them at my office on Tuesday morning no later than 8.30 am. Mr Tawhiti was so adamant in his assurances that I accepted that he could and would get them to my office and left matters at that.

11. On the Tuesday morning neither Mr Tawhiti nor the proposed witnesses appeared at my office. When Mr Tawhiti did get to Court, which again was a short time prior to Court commencing, he explained that he had had transport difficulties but could not explain why the proposed witnesses had not kept the appointment. He assured me he had been in contact with them the previous evening.

12. I then had to make a decision prior to Court commencing as to how to proceed. I could have approached the Judge to seek an adjournment for a short period of time but given that the witnesses were not summonsed, and given the history of missed appointments, I would not have been able to provide the trial Judge with any assurances as to when these people might appear.

13. I discussed the situation with Mr Tawhiti and we agreed that we would proceed by way of not calling any defence evidence and move straight on to closing addresses.

14. At the conclusion of my closing address I became aware that the proposed witnesses were seated behind me in the back of the Court. I did not raise this matter with the trial Judge once I had become aware of the situation. Arguably I could have made an application pursuant to s 354 of the Crimes Act to call these witnesses despite the fact that both the Crown and the defence had closed. I did not turn my mind to that possibility at the time.

5. Prior to my arrest on in (sic) the early hours of the morning of July

2009, I was bailed to 37 Oxford Street, Meryvale, (sic) Tauranga. I had a curfew requiring me to be at home by 7 pm each night. I told my lawyer this but details of that did not go into the evidence. My alibi witnesses were not called. I accept that my witnesses had been tardy and not responded to my lawyer’s request for a meeting. They actually only showed up at Court on the last day – during the closing addresses. My lawyer was aware that they had arrived but he did not bring their presence to the notice of the Court. The case concluded and without any evidence from the defence, there was no challenge to the faulty identification other than by way of cross- examination. The jury never got to hear from my alibi witnesses or from me.

[16] The appellant’s principal alibi witness, who was not called at his trial, is Shane Donald Sanders. Mr Sanders has sworn an affidavit. He deposes that on the evening in question he and his then girlfriend had driven to the appellant’s home to visit him. The appellant had cooked them dinner. At around 9 pm Mr Sanders and his friend left to go and noticed that there was a police officer outside annoying the appellant. That observation coincides with the initial visit by the police to the appellant’s house. Mr Sanders evidence is that prior to that police visit the appellant was in his home and observed to be there by Mr Sanders.

[17] Though Mr Sanders has a list of convictions he has no convictions for perjury or perverting the course of justice.

Discussion

[18] The instructions which the appellant gave to Mr Balme before his trial were the major cause of his counsel’s failure to call alibi evidence. Section 367A(1) of the Crimes Act provided:

367A Notice of alibi

(1) On the trial of any accused person who has been committed for trial, he shall not without the leave of the Court adduce evidence in support of an alibi unless, before the expiry of 14 days after the date on which he is so committed, he has given notice of particulars of the alibi.

...

[20] It is apparent from Mr Balme’s affidavit that the appellant had failed to keep two appointments with him. This would undoubtedly have prejudiced trial preparation.

[21] Nor did the appellant give Mr Balme the names of his two proposed alibi witnesses so no steps could be taken to issue subpoenas to compel their attendance. Despite the appellant assuring his counsel that the witnesses would be present they did not appear in time for them to be called. Mr Balme’s only recourse, so he deposed, would have been to invoke s 354 at a point when all that remained in the trial was the Judge’s summing up. Section 354 provides:

Every person accused of any crime may make his full defence thereto by himself or by counsel.

[22] More relevant would have been s 98 of the Evidence Act 2006 which provides:

98 Further evidence after closure of case

(1) In any proceeding, a party may not offer further evidence after closing that party's case, except with the permission of the Judge.

...

(4) In a criminal proceeding, the Judge may grant permission to a defendant under subsection (1) if the interests of justice require the further evidence to be admitted.

(5) The Judge may grant permission under subsection (1),—

(a) if there is a jury, at any time until the jury retires to consider its verdict:

(b) in any other proceeding, at any time until judgment is delivered.

Section 98(4) could have assisted Mr Balme, in combination with s 354 of the

Crimes Act.

[23] These provisions, along with the high s 367A threshold for seeking leave to call alibi evidence despite not having given an alibi notice, would have presented formidable difficulties to calling the witnesses at this point in the trial.

[24] The Court’s focus, however, must not be limited to procedural issues but must examine the more troubling issue of whether the appellant’s convictions are safe.

[25] The inquiry must be whether, despite the various unsatisfactory reasons for the alibi witnesses not being called, the appellant’s trial has resulted in a miscarriage of justice. In Sungsuwan v The Queen [2005] NZSC 57; [2006] 1 NZLR 730 the Supreme Court observed at [70]:

In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[26] The sole issue at the appellant’s trial was identification. Although essentially a jury issue, the identification evidence relating to the appellant was not strong. One witness was prepared to conclude subjectively that the intruder was the appellant, solely on the basis of a silent head movement in response to the witness calling out the appellant’s name and the shoes the assailant wore. The other witness, in respect of whom there could be legitimate criticisms about her overall reliability, identified the appellant largely on the basis of the appearance of his eyes and his build. The appellant did not have curly hair. Nor, as we have stated, was there any forensic evidence linking the appellant to the crime scene.

[27] In that situation we are uneasy about the absence of available alibi evidence. We decline to speculate on what the effect of Mr Sanders’ evidence might have been on the jury. Nor has the Crown had the benefit of investigating the alibi evidence.

[28] As Mr Chisnall properly conceded, Mr Sanders’ evidence strikes at the heart of the Crown’s case at trial.

[29] By a small margin, we have reached the conclusion that the failure to place the uncalled alibi evidence into the scales might well have tipped the balance away from the jury being left with a reasonable doubt on the central identification issue. We thus have a real concern for the safety of the jury’s verdicts.

[30] For these reasons therefore we conclude that there has been a miscarriage of justice. The appeal must be allowed and a retrial ordered.

Appeal against sentence

[31] Mr Heaslip did not pursue the appeal against sentence with any vigour. Since the appeal against conviction succeeds the sentence appeal becomes moot.

Result

[32] The appeal is allowed.

[33] The two convictions entered against the appellant in the Tauranga District

Court on 21 October 2008 are quashed. [34] A retrial is ordered.

Solicitors:

Crown Law Office, Wellington