Peato v R [2011] NZCA 98 (25 March 2011)

Court of Appeal of New Zealand

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Peato v R [2011] NZCA 98 (25 March 2011)

Last Updated: 29 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/2010 [2011] NZCA 98

BETWEEN IONA PEATO Appellant

AND THE QUEEN Respondent

Hearing: 23 February 2011

Court: O'Regan P, Winkelmann and Chisholm JJ

Counsel: A M M Schulze for Appellant J M Jelas for Respondent

Judgment: 25 March 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] The appellant was convicted of wounding with intent to cause grievous bodily harm after a jury trial in the District Court. He pleaded guilty to one count of assault with intent to injure before commencement of the trial. The trial Judge, Judge Cooper, sentenced the appellant to five years imprisonment. He appeals against conviction on the basis that it was unreasonable and cannot be supported having regard to the evidence. There is no appeal against sentence.

Background

[2] The convictions relate to an incident that occurred at a Rotorua bar in 2006. The complainant, a bouncer from a nearby bar, was called over to help out with a fight that seemed to be breaking out on the dance floor between the appellant’s partner and another woman. The appellant was standing at the side of the dance floor holding his partner back. The complainant asked him if everything was alright. Another person then assaulted the complainant and the appellant joined in, punching the complainant in the head. The complainant moved outside and a number of other men set upon him. The complainant fell to the ground. The Crown alleged that the appellant then stabbed him with a broken bottle.
[3] The appellant admitted to police that he had punched the complainant no more than six times. However, he said he understood the complainant was challenging him to a fight outside, saying, “One out, me and you, one out”. The punching formed the basis of his guilty plea to the assault with intent to injure charge. But he denied using the bottle.

Second appeal

[4] This is the second appeal by Mr Peato relating to this offending. His first appeal succeeded and a retrial was ordered.[1] The ground on which that appeal succeeded was that there were errors in the summing up, including the omission of a proper identification warning for the purposes of s 126 of the Evidence Act 2006. For the purposes of this appeal, it is accepted that the s 126 warning was correctly given at the retrial and no issue is taken with any aspect of the Judge’s summing up.

Unreasonable verdict

[5] The law on unreasonable verdicts was expressed in R v Munro:[2]

A verdict will be deemed unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt.

[6] It is clear that the Court must not substitute its own view of the evidence, but must instead apply the more restricted test of whether a jury could reasonably have reached the conclusion it did. With that in mind we turn to the evidence.
[7] Counsel for the appellant, Mr Schulze, said the verdict was unreasonable because:

(a) there was conflicting evidence as to whether the bottling took place inside or outside the bar;

(b) there was evidence that a man of a similar description to the appellant was present when the attack occurred;

(c) there were conflicting descriptions of the top the assailant was wearing; and

(d) the identifications of the appellant from photo montages by two key Crown witnesses, Ms Katipa and Ms Te Nahu, were too unreliable.

[8] An application was made to the trial Judge at the end of the Crown case for the appellant to be discharged under s 347 of the Crimes Act 1961. The Judge dismissed the application. It was not renewed at the end of the defence case.
[9] We deal with these issues in the above order.

Where did the bottling occur?

[10] There was inconsistency among the witnesses about where the bottling occurred. The complainant gave evidence that he believed that he was bottled inside the bar, and recalled seeing blood on the white shirt of a man whom he had used as a shield to get outside, which he presumed was from his lacerated head. He said that he did not see anyone stab him with a bottle when outside the bar, though he did feel a sharp pain in his right forearm. When asked if he recalled any bottling or stabbing outside the bar he responded, “There’s not much outside that I do recall”.
[11] The principal Crown witnesses, Ms Katipa and Ms Te Nahu, were outside the bar when the attack occurred. The prosecutor was clear in his closing address that the Crown pinned its case on their evidence. Mr Schulze argued that neither witness could say beyond reasonable doubt that they saw the bottling resulting in a wound outside the bar. Ms Katipa was challenged in cross-examination that she did not see a bottling incident where the bottle pierced the skin, to which she replied “Excuse me, yes I did they were right in front of me”. She said, “I specifically saw the person, the big Islander guy that had the bottle, that smashed the bottle and he was jabbing into the person”. Later she said, “I specifically saw a bigger guy smash the bottle and jab it into a person”. When challenged further she said that the bottle was jabbed into the complainant’s body, but she could not say what part of the body.
[12] Ms Te Nahu also described a man making stabbing motions with a bottle and threatening the crowd.
[13] Another witness, Mr Kauhala, did not see a bottling take place outside the bar, nor did he see anyone smash a bottle.
[14] Another witness, Mr Mason, also did not see a bottling, but appears to have arrived when the assault on the complainant was over. He accepted he was “wasted and drunk”.
[15] Defence witnesses also gave different versions of events. Mr Manuelo Peato (Manuelo) described his cousin, Mr Feleti Peato (Feleti) striking the complainant with a bottle inside the bar. Another family member, Mr Paulino, described Feleti bottling the complainant outside the bar.
[16] Mr Schulze argued that this evidence was so inconsistent that there was no reliable basis for the jury to determine where the bottling had occurred, and the lack of clarity on this aspect of the Crown case compromised the credibility of the Crown witnesses.
[17] It is not uncommon for there to be conflicting accounts of incidents involving a number of participants late at night when participants and witnesses may be drunk. The jury appear to have given weight to the evidence of Ms Katipa who was not drunk and had no previous contact with the participants in the fracas. She identified the appellant (and the Judge gave a fulsome and detailed caution about identification evidence) and her evidence, if accepted by the jury, was clear that there was a bottling outside the bar. She had not seen what happened inside so could not say if any bottling occurred inside as well. Her evidence was supported in large part by that of Ms Te Nahu, who was also a neutral witness who was sober at the time. It may also have been seen as consistent with the complainant’s report of feeling a pain in his arm when outside the bar, which was in turn consistent with the medical evidence that the complainant suffered lacerations not only on the head but also on the arm. And Mr Paulino, a defence witness, gave evidence of a bottling outside the bar, albeit by someone else. We cannot say that it was unreasonable for the jury to accept this evidence, particularly that of Ms Katipa, over the evidence of other eyewitnesses and that of the complainant, who was the subject of a significant beating on the night.

Man of similar description

Feliti

[18] The defence also suggested at trial that it was Feleti who had bottled the complainant. It should be noted that, although a cousin of the appellant, Feleti is not of a similar description. He looks Caucasian, is shorter and has a much smaller build.
[19] The descriptions given by the two key Crown witnesses, Ms Te Nahu and Ms Katipa, suggest that it was not Feleti who committed the offence. Defence counsel did not put to them that it may have been. Two of the witnesses called by the appellant at trial said that it was Feleti. The appellant’s nephew, Manuelo, said that he saw Feleti wielding the bottle inside the bar. Mr Paulino, who is also a cousin of the appellant, also testified that it was Feleti, and suggested it happened while the complainant was being dragged outside.
[20] It was open to the jury to reject this and accept instead the evidence of the two key Crown witnesses.

Mr Niaupu

[21] The defence had also put forward at the trial the possibility that another cousin of the appellant, Mr Niaupu, may have been the man who bottled the complainant. The similarities between Mr Niaupu and the appellant were admitted by the Crown under s 9 of the Evidence Act. In particular, they are a similar height and build, a similar age and are in fact cousins of the same Pacific Island descent. The main difference between them is that Mr Niaupu has black, curly hair whereas the appellant has black, straight hair.
[22] A number of the witnesses described two men who looked similar. The complainant noted that there were two men who looked similar, although one was older and with a different hairstyle. Mr Kauhala described two similar looking men involved in the fight, both inside and outside the bar. Mr Paulino gave evidence that Mr Niaupu was the man who had dragged the complainant out of the bar but said that Feleti had bottled the complainant inside the bar. Further, Ms Katipa described the bottler as a solidly built man with really short curly hair, which raises the possibility that it was Mr Niaupu.
[23] As Ms Jelas for the Crown pointed out, the fact that Mr Niaupu was there on the night does not suggest that he was the offender. None of the witnesses suggested that he was the bottler or suggested that they had difficulty distinguishing between the two men. The risk that the key Crown witnesses were mistaken in their identifications of the appellant was clearly explained to the jury. The verdict indicates that the jury accepted the identifications of the appellant by Ms Katipa and Ms Te Nahu as reliable. It was not unreasonable for them to have done so, after taking account of the very clear directions given by the Judge.

Conflicting descriptions of the assailant’s top

[24] There was also an issue as to what the appellant was wearing at the time. The appellant said he was wearing a plain black t-shirt. Ms Katipa and Ms Te Nahu both described a black shirt with white vertical stripes, and agreed that it was a distinctive top (in Ms Katipa’s case she did not remember these details at the trial but accepted that was what she had told the police when she made a statement soon after the attack). The complainant, who had a clear view of the appellant before being attacked, described the appellant as wearing a “green brown plain dress shirt” with a left hand pocket. This inconsistency was an obvious weakness in the Crown case but this sort of inconsistency is not uncommon in cases involving a number of people involved in a fracas at night. The defence emphasised this at the trial and the Judge’s directions were clear. We do not consider it to be unreasonable for the jury to prefer the evidence of Ms Katipa and Ms Te Nahu, which it appears they did.

Unreliable identifications

[25] The appellant did not appeal on the basis that the evidence of Ms Te Nahu and Ms Katipa was wrongly admitted. However, he drew attention to the fact that they had both expressed some doubt about the identification when doing the photo montages and were more certain at trial. This was said to make it more likely that the witnesses had erred.
[26] Ms Jelas submitted that this issue was properly dealt with by the Judge and the prosecutor at trial. In closing, the prosecutor used the words of Ms Kapita at the photo montage stage, where she said:

He might be the one who bottled the bouncer, but don’t know, he was a big man, but it might’ve – it may have been him, out of these eight.

[27] This contrasted with her evidence at trial, where she had expressed more certainty and said that she now believed it was the appellant. The Judge dealt with this expressly in his directions to the jury. Further, both witnesses were subject to cross-examination on the issue but held firm. We cannot say that it was unreasonable for the jury, having received a clear s 126 warning, to accept the evidence of Ms Katipa and Ms Te Nahu identifying the appellant as the assailant.

Result

[28] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Peato v R [2009] NZCA 333, [2010] 1 NZLR 788.

[2] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [87]; approved in R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [15].