Matehaere v R [2011] NZCA 306 (5 July 2011)

Last Updated: 13 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA570/2010 [2011] NZCA 306

BETWEEN HEATH JAMES MATEHAERE Appellant

AND THE QUEEN Respondent

Hearing: 30 June 2011

Court: Wild, R Hansen and MacKenzie JJ

Counsel: A Stevens for Appellant L C Preston for Respondent

Judgment: 5 July 2011 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] On three grounds, Mr Matehaere contends that his conviction for aggravated robbery should be quashed:

• (a) the jury heard irrelevant and unfairly prejudicial – and thus inadmissible – evidence of Mr Matehaere’s previous convictions for burglary;
• (b) Mr Matehaere was not able to call evidence explaining a photograph exhibited by the Crown at his trial, showing bundles of bank notes; and
• (c) Mr Matehaere was not able to advance an alibi defence.

Three other grounds advanced by Mr Matehaere in his notice of appeal were abandoned.

[2] Before we explain why the three grounds advanced, even in aggregate, have no merit, some background is necessary.

Factual background

[3] In a re-trial[1] in the Christchurch District Court in July 2010 the jury found Mr Matehaere guilty of robbing the Blenheim Road Tavern in Christchurch of $11,438 on 9 December 2008, while armed with a tomahawk.
[4] Two robbers had come in to the public bar of the Tavern at about 11.40 pm on 9 December 2008. One of the robbers was armed with a small “tomahawk” style axe. The bar manager, Mrs Donaldson, was cashing up the tills in readiness to close the bar for the night. The two robbers were partially disguised; they had pulled “hoodies” over their heads. While one robber got the two patrons down on the floor and guarded them, the robber armed with the tomahawk directed Mrs Donaldson into the adjoining office where the safe was. He told her to open the safe. She replied that she would need a code from the filing cabinet in the office to do that. After looking in the filing cabinet, she told the robber that the full code was not there and that she would need to go back and get it from her wallet which was in her handbag. By this stage the robber was becoming agitated and told Mrs Donaldson to “stop fucking him around and open the safe” but he nevertheless escorted her back to the kitchen area where she had left her handbag. The wallet was not in her handbag; the other robber had taken the opportunity to steal it. The wallet was recovered from the other robber and the bar manager then went back into the office with the robber armed with the tomahawk. She opened the safe and, at the robber’s instruction, emptied the $11,438 that was in it into his backpack. The two robbers then made off.
[5] Mrs Donaldson’s evidence was that the two robbers were in the tavern for “10 minutes maybe a bit longer”. She deposed that she was “quite close” to the robber armed with the tomahawk at times. Asked how good a look at him she had got she answered “I thought it was a pretty good one”.
[6] The robbery was captured on the Tavern’s security CCTV and this footage was played to the jury, who also had a number of stills from the footage. So the jury had an accurate idea of the duration of the robbery, and the proximity of Mrs Donaldson to the robber armed with the tomahawk while the robbery was taking place.
[7] On 12 January 2009, a little over a month after the robbery, Mrs Donaldson took part in a formal identification procedure to see whether she could identify the robbers. She was shown a first photo montage with eight photographs of men similar in appearance. She did not recognise any of those eight men. She was then shown a second photograph montage, also with photographs of eight men of similar appearance. She identified the man in photograph number two on that second montage as the robber armed with the axe. Photograph number two was a photograph of Mr Matehaere.
[8] There was the following exchange in the course of Mrs Donaldson’s evidence at Mr Matehaere’s trial:[2]

17. And when you did view the photo montage and point out photo number 2, how sure are you about identifying that person as the –
1. Absolutely, um, no doubt, no doubt in my mind.

[9] We were informed by Mrs Preston that Mrs Donaldson had been shown two photo montages because there were two suspects, and each montage featured one suspect. We note that limiting each photo montage to one suspect is in accordance with best practice.[3]

Ground one – the jury heard irrelevant and unfairly prejudicial – and thus inadmissible – evidence of Mr Matehaere’s previous convictions for burglary

[10] Pursuant to s 9(2) of the Evidence Act 2006, Mr Matehaere admitted the following facts for his trial:[4]

(a) At or about 3.45 pm on Tuesday 3 June 2003, the accused, Heath Matehaere, was at the Blenheim Road Motor Inn with two associates. The Blenheim Road Motor Inn was the previous name for the Blenheim Road Tavern. The accused entered the bar for a brief period of time before exiting the bar and walking around to the back of the premises.

(b) The accused has then forced a window open to the office. He has then climbed into the office through the window and taken $6,335.00 cash from the unlocked safe. The attached still images were taken from CCTV footage at this time.

(c) The accused was charged with burglary of the Blenheim Road Motor Inn and pleaded guilty.

(d) The accused has 60 previous convictions for burglary but no previous convictions for aggravated robbery.

[11] Mr Ruth[5] represented Mr Matehaere at his trial. Mrs Stevens submitted that Mr Ruth should not have placed any of the evidence in (a) to (d) before the jury.
[12] Mrs Stevens acknowledged that the Crown, pursuant to s 344A of the Crimes Act 1961, had sought a ruling that items (a) to (c) were admissible. The Crown had asserted this evidence was relevant to its contention that the 2008 robbers – or at least the robber armed with the tomahawk – knew the layout of the Tavern, in particular the location of the safe in which the cash was kept. But Mrs Stevens submitted that the evidence in (a) to (c) did not assist the Crown, because the 2008 robbers had entered the Tavern by a route different from that used by the 2003 burglars. The 2003 burglars had got into the office by climbing through a window from the carpark; the 2008 robbers had come into the Tavern through the main doors into the public bar.
[13] This submission overlooks the admission made in (a) – that the 2003 burglars had first come into the public bar before going out and walking around to the back of the Tavern, from where they had climbed through the office window.
[14] Mr Ruth affirmed two affidavits on this appeal, and was cross-examined. Questioned by Mrs Stevens, Mr Ruth said that he agreed to admit the evidence (a) to (c) because he considered a ruling in favour of the Crown inevitable. That evidence established that Mr Matehaere was aware of the layout of the Tavern, and in particular the location of the money safe, as a result of the burglary he had committed in 2003. We agree with Mr Ruth’s assessment.
[15] We turn to (d). While Mrs Stevens accepted that evidence that Mr Matehaere had previous convictions for burglary was necessary to his defence, she contended that it was not helpful to Mr Matehaere’s defence to admit to all his 60 previous convictions for burglary.
[16] Mr Ruth roundly rejected that contention of unhelpfulness, when Mrs Stevens put it to him in cross-examination. He considered Mr Matehaere’s best defence was an alibi, if he had one. However, despite pressing Mr Matehaere for anything that might support an alibi defence, nothing concrete was provided to him. He assessed that the prospects of successfully challenging the Crown’s identification evidence were poor, given its strength. That left Mr Ruth only with the line of defence which Mr Matehaere had himself advanced when first interviewed by the police on 21 May 2009. During that interview he told Detective McDonnell that it was not his “MO” (method of operation) to use an axe. When the detective showed him a series of stills from the Tavern’s CCTV security footage, Mr Matehaere responded “Why would I go and do that?” A little later in the interview this exchange took place:[6]

17. You have seen the photo stills, tell me why it is not you in the stills?
1. Because they don’t look like me and I know 100% that I didn’t do it.
17. Why do you know 100% that it is not you?
1. I don’t do that type of crime, its not my M.O.
17. What’s your M.O.?
1. Burglary.

[17] So Mr Matehaere’s primary defence at trial was that he was a dyed in the wool burglar with a track record of 60 convictions for burglary. Why would he suddenly “change his stripes”[7] and become an aggravated robber? The following exchange took place during Mrs Stevens’ cross-examination of Mr Ruth:[8]

17. Could you explain why you decided the jury should know he had 60 previous rather than perhaps just the burglaries referred to in his police statement?
1. It was grist to the mill, a way of promoting the argument if this man is a life long burglar it seemed to me to add strength to the proposition it was most unlikely he would suddenly become an aggravated robber.

That assessment cannot be gainsaid.

[18] This first ground of appeal comes down to a submission that evidence which provided the basis for Mr Matehaere’s primary defence ought not to have been adduced. We view the submission as misconceived. This first ground of appeal fails.

Ground two – Mr Matehaere was prevented from calling evidence explaining a photograph exhibited by the Crown at his trial, showing bundles of banknotes

[19] The Crown adduced in evidence photographs recovered from Mr Matehaere’s cellphone. Several of the photographs showed large amounts of cash in banknotes. One of the photographs, captioned “Hood money”, showed the left hand and feet of a person holding a large amount of cash in $20 banknotes folded into neat, similar sized bundles. The Crown adduced evidence from the Police South Island Electronic Crime Laboratory that the cellphone date and time was set to 14 December 2008 at 18:25 hours when that photograph was taken. The Crown contention was that the photograph showed Mr Matehaere holding some of the money stolen in the 9 December 2008 armed robbery of the Blenheim Road Tavern.
[20] Before Mr Matehaere’s trial, he and a co-offender Mr Teariki[9] had both pleaded guilty to a burglary of the Woolston Club on Hargood Street in Christchurch on 6 December 2008 – three days before the armed robbery of the Blenheim Road Tavern. $12,000 in cash in $20 notes had been stolen in that burglary.
[21] During the Crown case, Mr Ruth won two important concessions from Crown witnesses. The first came from Mr Roberts, the owner of the Blenheim Road Tavern, in this exchange:[10]

17. You’re doing the best you can, I appreciate that Mr Roberts. Now we’re going to hear some evidence in this trial that on the 6th of December three days before the robbery we’re talking about, that the Woolston Working Men’s Club was burgled and that $12,000 in twenty dollar notes was taken and that Mr Matehaere, the man in the Court here today has pleaded guilty to that burglary. There is no feasible way that you could rule out that the monies shown in the photos are the Woolston working Men Club money and not Blenheim Road’s, that’s right isn’t it?
1. Yeah, that’s, that’s correct, yeah.

[22] The second came from Detective McDonnell, the officer-in-charge of the case. He accepted that Mr Matehaere had stolen some $12,000 in $20 notes when he burgled the Woolston Club on 6 December 2008 and that it was bundles of $20 banknotes that were shown in the “Hood money” cellphone photograph.
[23] The Crown accepted in Mr Matehaere’s trial that it was not able conclusively to prove that the money shown in the “Hood money” cellphone photograph had come from the aggravated robbery of the Blenheim Road Tavern, and not the burglary of the Woolston Club.
[24] Mr Matehaere’s complaint was that he was prevented from calling evidence from his girlfriend at the time, Ms Tito. Ms Tito gave her evidence before us. The gist of it was that she had taken the “Hood money” cellphone photograph on 6 December 2008. She said she could fix that date because the hand and feet in the photograph were hers, and the shoes she was wearing in the photograph were shoes she had worn for the first time on that day – 6 December 2008 – to go to a friend’s graduation.
[25] When Mrs Stevens asked Mr Ruth about the likelihood that the jury would think it was Mr Matehaere who was holding the money in the cellphone photograph, he gave this answer:[11]

Given that the Crown had no way of proving that the monies in the photograph were either from the Blenheim Road Tavern robbery or from the Woolston Club burglary for that matter it seemed to me a side issue best avoided, so rather than get into a to and fro about who was holding the money and who wore what shoes it was far better from a tactical view if the jury was left with the simple proposition that there was another explanation for the large amount of money in the same denominations he or someone was holding in the photograph.

[26] Mr Ruth was pressed again by Mrs Stevens about the desirability of calling Ms Tito to give evidence for the defence at Mr Matehaere’s trial. There was this exchange:[12]

17. ... Ms Tito has deposed that she would have given evidence it was her in the photograph, would you have seen an advantage in that?
1. No. Not at all. It was far better left as an element of doubt given the Crown’s reliance on those monies being the robbery monies to leave it as something they really couldn’t prove knowing that a very similar amount in the same denominations had arisen from the Woolston Club burglary. The more one got into the specifics of that the more I feared it might unravel and what was a doubt to start with might disappear as a doubt.

[27] In no way could that tactical decision by Mr Ruth be criticised. Indeed, we think it was sound.
[28] This second ground of appeal fails.

Ground three – Mr Matehaere was not able to advance an alibi defence

[29] In the affidavit he swore in support of his appeal Mr Matehaere deposed:[13]

I told David Ruth I had an alibi for the night of the Blenheim Road Tavern robbery because I was at a friend’s house drinking with Nga Teariki and Iefata Sanele. We had to stay put at the friends because the friend was on home detention. The friend was Dwayne Tapene.

[30] Cross-examined before us by Mrs Preston, Mr Matehaere:

• (a) Agreed that he had not mentioned the possibility of an alibi at the depositions hearing before Justices of the Peace, when he was represented by Mr Eaton.[14]
• (b) Denied that he had been vague about the possibility of an alibi defence when Mr Ruth asked him about it prior to his first trial. He stated:[15]

... No that’s not the case at all, I was pretty clear on the people I was with and where I was at that time and what I was doing, the only vague part he might have got is I didn’t know contact details to get hold of these people to clear things up, I was in jail and it was hard for me to contact these people, when I was held in custody I was in Auckland, and all these people were in Christchurch, that’s the only vague thing I can think he was talking about being vague, I was clear on who I was with and drinking with and what I was doing. ...

(c) Said that just before his second trial he had again raised the possibility of an alibi defence with Mr Ruth, mentioning Mr Tapene as an alibi witness. He agreed that Mr Ruth had told him that Mr Tapene would not be a convincing alibi witness because he had a substantial criminal history and that it was anyway too late to give to the Crown the required notice of an alibi defence. He said he “wasn’t 100% agreeable”[16] to an alibi defence not being run at his second trial.
(d) Agreed that he had spoken to Mr Ruth in the cells at the courthouse following the first trial, but maintained he had not seen Mr Ruth again until his second trial.[17]
[31] Mr Ruth’s evidence about a possible alibi defence is markedly different. In summary it was this:

• (a) Prior to the first trial Mr Ruth raised the possibility of an alibi defence with Mr Matehaere. He explained that, if an alibi was available, it would be Mr Matehaere’s best prospect of countering the Crown’s strong identification evidence. He stated:[18]

There was no information, no names given as to who might have been able to give alibi evidence.

(b) He did not agree that he had next talked to Mr Matehaere only just prior to his second trial. He stated there had been other conversations in the interim.
(c) He said Mr Matehaere was not correct in stating that he had given Mr Ruth the names of Mr Teariki and Mr Sanele as possible alibi witnesses just prior to the second trial. He said that, if he had heard Mr Teariki’s name, it was only in connection with the burglary of the Woolston Club, and never as a possible alibi witness. And he had never heard of Mr Sanele.
(d) He agreed that on the morning of the second trial Mr Matehaere had mentioned Mr Tapene to him as a possible alibi witness. This was the relevant part of Mr Ruth’s evidence about the possibility of an alibi defence at Mr Matehaere’s second trial:[19]

17. The one person you were familiar with was Mr Tapene?
1. Yes.
17. But is it correct that you took the view he wouldn’t be a credible witness?
1. That was part of it, that’s what’s been highlighted but the reality is once again, I think this was the morning of the second trial, there was a very vague suggestion he might in some way be able to help, there was no suggestion of him being able to account for Mr Matehaere’s whereabouts at any relevant time, simply that as I recall it Mr Matehaere may have spent time at Mr Tapene’s place in Christchurch, that was the extent of it so that vagueness coupled with what I knew of Mr Tapene’s criminal history simply made it a no brainer there was no point in calling him. If on the other hand Mr Matehaere said look, Mr Tapene can tell you exactly where I was when this robbery was going down I wouldn’t have hesitated to contact him and get an adjournment if necessary, the same applies to Mr Teariki if he had ever been proposed as an alibi witness I would have done everything I could to have him called. None of those things happened.
17. You would accept that Mr Teariki has a criminal history, you know of Mr Tapene’s criminal history, that that could have been put to one side in the context of Mr Matehaere also having one and wouldn’t have been a barrier to them being called as alibi witnesses?
1. If any witness had been presented to me as being able to provide an actual alibi that person would have been called, despite their background.
17. As you have said, if need be you would have sought an adjournment or made application for notice of alibi if the situation had called for it?
1. If it was on a proper alibi basis because I would have to have alerted the Crown and sought that adjournment, I would have needed pretty good rEatons.

[32] Where Mr Matehaere’s evidence diverges from that of his trial counsel Mr Ruth, we accept Mr Ruth’s evidence and find Mr Matehaere not to be telling the truth. We found Mr Ruth’s recollection of what had happened clear and compelling. Strictly, there is no need to go further, because we are well satisfied that Mr Ruth’s efforts to obtain from Mr Matehaere the instructions and information he needed to run an alibi defence produced nothing credible and concrete.
[33] However, as we heard the proposed alibi evidence of Mr Matehaere and Mr Teariki, we comment on it. Their evidence comes nowhere near establishing in a credible way that Mr Matehaere could not have been the man who, armed with a tomahawk, robbed the Blenheim Road Tavern of $11,438 at approximately 11.40 pm on 9 December 2008. It suffices to refer to the evidence of these two men as to the time at which they left Mr Tapene’s home, where they claimed they had been having a birthday drink. First Mr Matehaere. He did not give a departure time in his affidavit. In evidence before us he volunteered that he and Mr Teariki had left Mr Tapene’s home “roughly probably about up to maybe just after 11.30, round about then”.[20] When asked how he could remember 11.30, this was his answer:[21]

Because I am remembering you know, its been a long, couple of years, so. ... My memory is getting clearer because of certain events, it just triggers my memory and I am able to help you understand what went on.

[34] The Court again asked Mr Matehaere about this:[22]

17. (Wild J) In your answering questions this morning, for the first time you mentioned you had left, you remembered leaving, Mr Tapene’s house at around 11.30pm?
1. Yes.
17. How do you fix that time, what has caused you to remember it now?
1. Its just, I was just trying since I have been locked up for the last two years, and knowing that hoping to get this appeal I was trying to remember all the events that happened and what stuck out is that Dwayne Tapene’s mum got angry and told us we had to leave and there was a big argument, I know it was round 11 at that time she told us to leave because she said it, she was pissed off because there was kids in the house and we were drinking and music was loud and Dwayne was on home detention, we didn’t leave straight away, we were mucking around but we did leave round 11, it wasn’t exactly 11, I was guessing close on 11.30 because by the time we got to this other place it was closed because they close just before 12.

[35] In the affidavit he swore in support of Mr Matehaere’s appeal, Mr Teariki deposed that he and Mr Matehaere had got to Mr Tapene’s place “about 8.00 pm and left about 11.00 pm”.[23]
[36] Mr Teariki was also asked how he could fix the departure time of about 11 pm:[24]

Q Any way you can reference that time that you know that time?

1. Sort of, just going on the conversation one of the boys saying The Embankment is open, between those time 11 and 11.30.
17. So because you were able to go and drink at The Embankment?
1. Yes.

[37] So that is the evidence of Messrs Matehaere and Teariki as to when they say they left Mr Tapene’s place. Mr Teariki’s credibility would need to be assessed against the fact that he pleaded guilty to committing the 6 December 2008 burglary of the Woolston Club with Mr Matehaere, and has an extensive criminal history including convictions for eight other burglaries as well as for other dishonesty offending. There is no evidence corroborating that the two men were ever at the Tapene home on the night of 9 December 2008. There is no evidence corroborating that they were at any of the bars or hotels they claimed to have visited after leaving Mr Tapene’s house.
[38] Mrs Preston submitted that the alibi evidence we heard is “utterly unconvincing”. We think that is a fair assessment.
[39] This third ground of appeal also fails and is dismissed.

Result

[40] As none of the three grounds of appeal has succeeded, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] In the first trial the jury could not agree on a verdict.
[2] Transcript 25/28–30.

[3] Neil Brewer and Matthew A Palmer “Eyewitness identification tests” (2010) 15 Legal and Criminological Psychology 77; J Turtle and G L Wells “Eyewitness identification: The importance of line-up models” (1986) 99 Psychological Bulletin 320. This research seems to indicate that, the more suspects in the line-up, the more difficult it is for the police to recognise witness error. With single-suspect line-ups, identifications can be classified as suspect identifications or known errors, with only the former potentially leading to prosecution. On the other hand, an identification from an all-suspect line-up, contains a greater risk that a suspect will be identified by chance.
[4] Case on Appeal 38A.

[5] Now Judge Ruth – he was appointed a Judge of the District Court on 2 June 2011 (but we will refer to him as Mr Ruth, as he was at the time of Mr Matehaere’s trial).
[6] Case on Appeal 47P.

[7] Mr Ruth recalled that these were the words aptly used by Judge Moran who presided over Mr Moran’s first trial.
[8] Notes of evidence on appeal 16/31–35.
[9] Mr Teariki features again later in this judgment; he was Mr Matehaere’s proposed alibi witness.
[10] Notes of evidence 44/8–16.
[11] Notes of evidence on appeal 17/2–8.
[12] Notes of evidence on appeal 18/30–36.
[13] Paragraph 5 of the affidavit Mr Matehaere sworn on 17.3.11.
[14] Notes of evidence on appeal 7/8–9.
[15] Notes of evidence on appeal 7/27–32.
[16] Notes of evidence on appeal 8/15.
[17] Notes of evidence on appeal 8/35–9/1.
[18] Notes of evidence on appeal 17/14–15.
[19] Notes of evidence on appeal 18/9–28.
[20] Notes of evidence on appeal 5/9–10.
[21] Notes of evidence on appeal 5/26–29.
[22] Notes of evidence on appeal 10/33–11/5.
[23] Mr Teariki’s affidavit sworn 17.3.11 at 6.
[24] Notes of evidence on appeal 13/19–21.