Tither v R [2015] NZCA 220 (8 June 2015)

Last Updated: 23 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA376/2014 [2015] NZCA 220
BETWEEN	BRONSON TITHER Appellant
AND	THE QUEEN Respondent

Hearing:	19 May 2015
Court:	French, Heath and Mallon JJ
Counsel:	G W Calver for Appellant M G Wilkinson for Respondent
Judgment:	8 June 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Tither was found guilty at trial of several charges arising out of a home invasion.^[1] The trial was held before Judge Rea and a jury in the Napier District Court.

[2] The sole issue was identification. Mr Tither now appeals his conviction on the grounds that the guilty verdicts were unreasonable and against the weight of evidence.^[2]

Background

[3] In the early hours of 28 December 2012, Ms Angela Johnson and her then 15yearold son Daniel Johnson were at home in their house at Napier. Ms Johnson was still up. Daniel was in his bedroom at his computer.
[4] Daniel had left the key in the front door by mistake.
[5] A man known to the Johnsons, a Mr Bush, entered the house. He was followed by two men, one of whom was wearing a scarf across his face and the other who was wearing a loosely fitting balaclava. Both were carrying weapons.
[6] Ms Johnson was assaulted and pushed down onto the floor as the two men demanded drugs.
[7] Hearing the commotion, Daniel emerged from his bedroom. He grabbed a meat cleaver to try and fend off the attackers but was overpowered. He and his mother were then dragged into his bedroom. The man wearing the balaclava watched over them in the bedroom while the other went through the rest of the house stealing items of property. After five to ten minutes, the men left the house with the stolen property and drove off in a car.
[8] The Crown’s case was that the intruder wearing the balaclava was Bronson Tither. He had visited the Johnson house on previous occasions and both Ms Johnson and Daniel said they recognised him. Ms Johnson also stated she knew it was Mr Tither by the apologetic behaviour of the offender in the bedroom.
[9] Police charged both Mr Tither and Mr Bush with one count of aggravated burglary, two counts of aggravated robbery,^[3] one count of assault using a weapon and one count of male assaults female. Police were unable to find the intruder wearing the scarf.
[10] On the second day of the trial, Judge Rea discharged Mr Bush under s 347 of the Crimes Act 1961. The Judge considered there was insufficient evidence to suggest that Mr Bush had done anything more than be present at the scene.
[11] Mr Tither’s defence was that this was a case of mistaken identity. Mr Tither gave evidence that it could not have been him because he was in Wairoa with family between 26 December 2012 and 1 January 2013. This was confirmed in evidence by his parents.

Arguments on appeal

[12] It was common ground that a verdict will be unreasonable if having regard to all the evidence the jury could not reasonably have been satisfied beyond reasonable doubt the defendant was guilty.^[4] It was also common ground that in considering whether a verdict is unreasonable, the appellate Court is performing a review function and not substituting its own view of the evidence.^[5]
[13] Mr Calver acknowledged that the threshold for interfering with a guilty verdict on the basis of unreasonableness is high. However, he submitted that this was one of those rare cases where that high threshold was met.
[14] In support of that submission, Mr Calver emphasised the absence of any forensic or other independent evidence linking Mr Tither to the crime. He pointed out that the verdicts were therefore based entirely on the identification evidence of the two complainants which he contended was demonstrably unreliable for the following reasons:

• (a) At no stage did either Ms Johnson or Daniel get an unimpeded view of the offender’s entire face.
• (b) Their respective estimates of the offender’s height (“5 feet 10 inches”, “probably about 6 feet, five feet 11 inches”) did not match Mr Tither’s height of 5 feet 4 and a half inches.
• (c) Daniel eschewed any reliance on voice identification.
• (d) The offender’s apologetic behaviour in the bedroom could not properly form the basis for any identification because a stranger might also have misgivings.
• (e) While in the bedroom, Daniel said “Is that you Bronson?” clearly indicating uncertainty.
• (f) Daniel’s previous dealings with Mr Tither were insubstantial.
• (g) Daniel was likely to have been influenced by a desire to support his mother as evidenced in cross-examination by counsel for Mr Bush. Daniel stated he was “pretty sure” Mr Bush was there, but later acknowledged that this was based on his mother’s say-so and that he himself did not see Mr Bush.
• (h) At one point of his evidence, Daniel said he was “fairly” certain the intruder was Mr Tither.
• (i) There were inconsistencies between the evidence of the two complainants. For example Daniel said one of the intruders was carrying a knife, while Ms Johnson said both were carrying hammers.
• (j) There was a real risk of guilt by association. On most if not all the previous visits to the house, Mr Tither had been accompanied by Mr Bush. Seeing Mr Bush enter first may well have pre-disposed Ms Johnson into thinking the man who followed was Mr Tither, combined with the fact she knew Mr Tither was the sort of person who would rob her, he having already stolen some jewellery from her house on Christmas Day.
• (k) The alibi evidence.

Analysis

[15] The issues raised by Mr Calver were all advanced at trial and put before the jury. The Judge also gave very comprehensive and clear directions on identification both in his summing-up and in a written hand out.^[6] There is no reason to suggest the jury failed to consider them in reaching its verdict.
[16] In our view, giving appropriate weight to the jury’s advantage in seeing and hearing the witnesses, there was sufficient evidence on which a properly directed jury could reasonably have been satisfied of Mr Tither’s guilt to the requisite standard.^[7]
[17] The evidence established that before the night in question, Ms Johnson had met the appellant on at least four or five occasions, the most recent being Christmas Day, that is, only two days beforehand. Another of those previous occasions was her birthday on 5 December when Mr Tither was likely to have been at the house for several hours. She told the jury that because Mr Tither was strikingly good looking, she had spent a lot of time looking at him and admiring him. There was also evidence that she knew him well enough to have a cell phone number and to have communicated with him by text messaging.
[18] The jury also learnt that Mr Tither would have known Ms Johnson had drugs in the house because on the previous visits she had provided him with methamphetamine.
[19] Both Ms Johnson and Daniel said the balaclava was very loose fitting and they could see the intruder’s facial features. Both said the intruder may as well have not worn it. Contrary to a submission made by Mr Calver, their respective descriptions of the balaclava are on analysis reasonably similar. Daniel said it was like a five year old had made it. Ms Johnson said the balaclava was “a joke”, “really badly made”, it had holes the size of coffee cups, the intruder had to keep adjusting it all the time. She was able to see all parts of his face. Daniel said he could see the shape of the intruder’s eyes, his eyebrows, lips, mouth and part of his nose as well as his hair. He said he could tell it was Mr Tither and did not accept he could be mistaken. Both complainants recognised hair colour — a red streak or streaks — and red Nike shoes, which they had seen Mr Tither wearing before.
[20] The fact that Mr Tither had red hair at the time was confirmed by the arresting officer.
[21] Ms Johnson was resolute in her identification. She said she recognised Mr Tither “straight away”, knew for a fact “100 per cent” that it was him and “recognised everything about him”, she “just knew” it was him, it was “plainly obvious” that it was him.
[22] It is correct that in cross-examination Ms Johnson said “yeah maybe” when asked if it could have been someone who looked like Mr Tither, but may not in fact have been him. However, she immediately went on to say why she did not think it was “a doppelganger”. In re-examination, she confirmed she was “100 per cent sure.” Looking at the whole of her evidence, we do not regard the “yeah maybe” can fairly be regarded as significantly detracting from her evidence.
[23] At no stage of her evidence, did Ms Johnson rely on Mr Tither’s association with Mr Bush as a reason for her identification. Whether she may have done so subconsciously was something the jury could either reasonably accept or reject.
[24] As regards the difference between the complainants’ respective height estimates and Mr Tither’s actual height, we note that in addition to nominating a measurement, both Ms Johnson and Daniel stated that Mr Tither was taller than they were. They were not asked what their heights were but the jury would have been able to see for themselves and make the comparison with Mr Tither. It would have been open to the jury to accept that many people struggle with giving accurate measurements of height.
[25] As for the statement made by Daniel in the bedroom “Is that you Bronson?”, Daniel explained in evidence that this was more of a rhetorical question and that he would not have said it had he not been definitely sure it was Bronson. He wanted to make him feel guilty. That was a reasonably plausible explanation which again in our view was open to the jury to accept.
[26] The jury would also have been aware of the discrepancies as between the two complainants, but in our assessment those discrepancies are not such as would render reliance on the key aspects of their testimony unreasonable. Indeed, in so far as Mr Calver also suggested that Daniel was basing not only his evidence about Mr Bush, but also about Mr Tither on his mother’s statements, the discrepancies could be seen as a counter to that suggestion. In his initial statement to the police, Daniel did not say he had seen Mr Bush. He did however identify Mr Tither.
[27] In coming to the conclusion that the verdicts were reasonable, we have not overlooked the alibi evidence. However, as Mr Calver acknowledged, it was not a castiron alibi. The parents could not account for Mr Tither’s movements during the early hours of 28 December and it would have been possible for him to have gone to Napier and returned to Wairoa before the parents got up. He was sharing a bedroom with his partner in Wairoa. The partner did not give evidence. The jury could reasonably have considered her absence to be telling and drawn adverse inferences accordingly.
[28] We are satisfied that none of the arguments raised by Mr Calver whether viewed individually or in combination would justify appellate intervention.

Result

[29] The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Two counts of aggravated robbery, one count of aggravated burglary, one count of assault with a weapon and one count of male assaults female.

^[2] A second ground of appeal regarding the adequacy of the trial judge’s directions on identification was abandoned.

^[3] The reason for two counts was that the intruders stole property belonging to Daniel as well as property belonging to Ms Johnson.

^[4] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5].

^[5] At [13](a).

^[6] The Judge’s directions and written warning unquestionably complied with the Evidence Act 2006, s 126: see above n 2.

^[7] See R v Owen, above n 4, at [13](b).