Tawhiti v R [2011] NZCA 451 (13 September 2011)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Tawhiti v R [2011] NZCA 451 (13 September 2011)

Last Updated: 22 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA552/2010 [2011] NZCA 451

BETWEEN MERVYN TAWHITI Appellant

AND THE QUEEN Respondent

Hearing: 1 August 2011

Court: Ellen France, Heath and Lang JJ

Counsel: Appellant in person M D Downs for Respondent

Judgment: 13 September 2011 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

[1] One night in July 2007, three men forced entry into the home of a couple who ran a tinnie house in Tauranga. As a result of this incident, the appellant was charged and convicted on two counts of aggravated robbery. He successfully appealed against conviction on the basis that alibi evidence was available which should have been led at trial.[1] After a retrial, at which the alibi evidence was led, the appellant was again convicted on both charges. He appeals against his conviction.
[2] The appeal raises two issues. First, the appellant says he has fresh evidence that may have resulted in a different outcome if it had been available at trial. Secondly, the appellant argues that trial counsel failed to adduce evidence which he says would have shown that the complainants’ son, who had identified the appellant as one of the robbers, did not know the identity of the robbers.

Factual background

[3] The background is set out in this Court’s earlier decision. For present purposes, we need only note that the three men who entered the complainants’ house had covered faces. One of the three was armed with a small axe. The complainants were assaulted and some property was stolen.
[4] The Crown case rested primarily on the evidence of the complainants and their son which identified the appellant as one of the robbers. The appellant was known to the complainants and to their 17 year old son who was living at the house. That said, as this Court noted in the earlier decision, the identification evidence “was not particularly strong”.[2] For example, the female complainant gave evidence that she recognised one of the robbers as the appellant although he had a scarf over his face.
[5] The complainants’ son identified the appellant by two means. First, on the basis he had seen the appellant wearing the distinctive shoes that one of the robbers was wearing. Secondly, he said that when he called out “Merv” the man, with the distinctive shoes and the same build as the appellant, had turned in recognition at the use of his Christian name. The distinctive shoes were found at the appellant’s house. However, testing of the shoes yielded no forensic evidence linking the appellant to the complainants’ home.
[6] The appellant gave evidence at trial. He said he was at home on the night of the robbery. That evidence was supported by that of two of his friends, one of whom was the owner of the house at which the appellant was living.

The new evidence

[7] The Supreme Court has recently set out the test to apply to the admission of fresh evidence on a criminal appeal in Fairburn v R.[3] The key passage for present purposes reads as follows:

[25] The principles to be applied by an appeal court when considering the admission of further evidence were stated by the Court of Appeal in its judgment in R v Bain.[4] It is worth repeating what the Court of Appeal said:

[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice.

...

[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant.

[8] The evidence the appellant wishes to have considered comes from a Mr Kaahu Grey. Mr Grey’s affidavit is very brief. He says:

I Kaahu Grey give this written submission and can provide evidence in the form of identification of the persons responsible for the crime of robbery that occurred on the 26 July 2007 in which Mervyn Tawhiti was wrongly convicted. I am prepared to come to court and personally give evidence that the persons responsible for the robbery against [the complainants] are my [r]elations from Te Puke.

Mr Grey then names one of the persons he says was involved in the robbery.

[9] As to whether Mr Grey’s evidence is fresh, the appellant says that it was only after he was in custody after the retrial that he found out about who was responsible for the robbery. Mr Grey, who is an acquaintance, was in custody at that time.
[10] Considerable time has passed since the events in question and there have been two trials. There is accordingly merit in Dr Downs’ submission for the Crown that there were ample earlier opportunities for ventilation of this issue. However, even if the affidavit meets the freshness test it does not meet the threshold for admission because it lacks credibility and cogency. That is because the affidavit does not provide any confirmation of Mr Tawhiti’s defence at trial that he was not present. As Dr Downs’ written submissions stated, Mr Grey does not explain:

8.1 The source of his knowledge that others committed the offending, nor how it is that the appellant was not involved;

8.2 When he first knew of the matters above;

8.3 Why he did not come forward earlier;

8.4 Why he is doing so now.

[11] The appellant told us Mr Grey was given this information by someone else.[5] There is little more to Mr Grey’s affidavit than assertion based on hearsay.
[12] Prior to the hearing of the appeal, the shortcomings in Mr Grey’s evidence were raised by the Crown and drawn to the attention of the appellant. This led to Chambers J conducting a telephone conference with the appellant and Crown counsel.[6] The shortcomings of the affidavit were discussed with the appellant and he was advised of the matters he needed to address.
[13] At the hearing, the appellant explained that Mr Grey was no longer in prison and that he had been unable to locate him.
[14] After discussion with the appellant and Crown counsel, it was agreed the matter would be adjourned so that attempts could be made to locate Mr Grey.[7] The police were able to locate Mr Grey and a lawyer, Mr Craig Horsley, was asked to assist by ascertaining from Mr Grey his willingness or otherwise to provide a further affidavit.[8] Mr Horsley’s numerous attempts to contact Mr Grey proved fruitless.[9]
[15] In these circumstances, we conclude the matter must be dealt with on the basis of Mr Grey’s current affidavit. For the reasons we have discussed, the affidavit does not meet the test for admission. We decline to admit it.

Trial counsel competence

[16] The second matter raised by the appellant is that his lawyer at trial failed to lead evidence of an incident involving one of the complainants and her son. It appears that this incident occurred some time after the first trial but before the retrial. The appellant says that the son assaulted him shouting, “Who the f..k was it?” The appellant argues this evidence should have been led to show the young man did not know the identity of the robbers.
[17] As Dr Downs submits, there are two problems with this argument. First, the appellant has not waived privilege, a matter explained to him in the telephone conference with Chambers J. It is difficult to see how this ground can be realistically advanced in the circumstances.[10] Secondly, it is hard to see how the evidence would have assisted. Indeed, it could well have been seen as strengthening the prosecution case. The jury may have seen the assault as indicating revenge on the person involved and could have understood the remarks to mean, “Who, besides you, robbed me?” We do not consider this ground of appeal has any merit.

Result

[18] It follows that neither of the matters raised by the appellant are such as to lead to a risk of a miscarriage of justice. The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v Tawhiti [2009] NZCA 558.
[2] At [8].

[3] Fairburn v R [2010] NZSC 195, [2011] 2 NZLR 63 at [25]. See also Witehira v R [2011] NZCA 255 at [39].

[4] [2004] 1 NZLR 638 (CA) at [18]–[27] and approved by the Privy Council in that case [Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]].

[5] The appellant says another person also told him the identity of the offenders but that person was not willing to provide an affidavit.
[6] Minute of 6 July 2011.
[7] Minute of 3 August 2011 refers.
[8] Minute of 10 August 2011 refers.
[9] Memorandum of 30 August 2011 from Mr Horsley and Minute of 1 September 2011 refer.
[10] See the discussion in R v E (CA113/09) [2009] NZCA 554.