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Court of Appeal of New Zealand |
Last Updated: 26 November 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1] Terere MacDonald, Derek Savage and his son, Deuce Savage, were found guilty following a trial before Lang J and a jury in the High Court at Rotorua of two counts of discharging firearms with intent to cause grievous bodily harm to two victims. Mr MacDonald and Deuce Savage were found guilty of aggravated robbery. Deuce Savage was also found guilty of demanding with menaces.
[2] Lang J sentenced Mr MacDonald to a term of 14 and a half years imprisonment, Derek Savage to 12 and a half years imprisonment, and Deuce Savage to 14 years and nine months imprisonment.[1] Minimum sentences of imprisonment of six years and four months were imposed on each man.
[3] Messrs Derek and Deuce Savage appeal against their convictions and sentence. Mr MacDonald appeals against his sentence only.
Facts
[4] In chronological sequence, and by reference to the charge against Deuce Savage of demanding with menaces, it is undisputed that on 13 August 2013 Desmond Ngaheu threatened Justin Sattler with violence unless he paid $200. Deuce Savage is a large man. He had arrived at Mr Sattler’s address in Kawerau shortly before Mr Ngaheu. He was present when the offending occurred. The Crown’s case against Deuce Savage was that, while he did not make any direct threats against Mr Sattler, his presence acted as an intimidating factor which assisted Mr Ngaheu as the principal offender on the charge of demanding with menaces.
[5] Shortly afterwards on the same day Messrs MacDonald and Deuce Savage visited Jeremy August at his house in Kawerau. Mr August is a drug dealer. All men are said to be members of the Mongrel Mob gang. Acting in concert and wearing disguises, Mr MacDonald and Deuce Savage robbed Mr August of cash and cannabis. They also advised him that he would be able to continue to deal drugs in Kawerau provided that activity was conducted under the Mongrel Mob’s auspices. Despite their disguises, Mr August recognised both men.
[6] At 5 am on 13 September 2013 Mr MacDonald returned to Mr August’s home. He demanded that Mr August give him something because he had to “have something to take back to the boys”. By these words, Mr MacDonald was allegedly referring to drugs. In response Mr August struck Mr MacDonald on the head and legs with an iron bar, causing the latter to retreat. Before departing, Mr MacDonald warned Mr Savage that he would be back to “sort it out”.
[7] There was no dispute that Mr MacDonald and two others returned to Mr August’s property within the next hour and a half. Mr MacDonald was carrying three firearms wrapped in paper or material. All three men wore disguises and were at Mr August’s house for about three minutes. One yelled out words to the effect of “who is fucking with the mob?” or “who wants to fuck with the mob?”.
[8] One of the three men shot Mr August in the stomach before he crawled away into the back yard. His friend, Gavin Pirini, had come earlier to the house to assist Mr August in case there was a retaliatory attack. One of the intruders shot Mr Pirini in his abdomen as he attempted to remove the intruder’s firearm. Lang J was satisfied that at least one other shot was fired before the three men drove away in a vehicle.[2] The firearms have never been found.
Crown case
[9] The real contest at trial on the firearms charges was the identity of the two men with Mr MacDonald. The Crown relied on visual and audio identification evidence, and on a range of circumstantial evidence.
[10] The Crown’s case at trial was that after his altercation with Mr August, Mr MacDonald went first to a property occupied by Ms Pinepine Savage, Derek Savage’s daughter. Deuce Savage is her brother and was staying there. Mr MacDonald woke Deuce Savage who then went through a back fence to his father’s property. Pinepine Savage owned a Ford Falcon motor vehicle. It was used frequently by her extended family including her father. Within this time sequence she saw the car arrive at her property. Deuce Savage was in the front passenger seat. She saw Mr MacDonald get into the backseat. She did not see the driver before the vehicle left.
[11] In a formal identification procedure conducted that day a witness, Richard Hohepa, who had been at Mr August’s home when the shooting occurred, identified Derek Savage and Deuce Savage as two of the attackers. In a formal identification conducted 12 days later, Mr August identified Mr MacDonald and Derek Savage.
[12] Mr Pirini identified Derek Savage and Deuce Savage by their voices.
[13] The Crown relied also on a body of circumstantial evidence. At 5.43 am on the day of the shooting Deuce Savage sent Mr August a text message enquiring “what the fuck happened with the dog?”. He was allegedly referring to Mr August’s earlier attack on Mr MacDonald. Following an exchange of texts, Deuce Savage advised Mr August at 5.51 am that he was coming to see him – “I’ll come for a bark to get story before the other dogs do”. The three intruders arrived at Mr August’s home within 20 minutes of that message and at 9.34 am Derek Savage texted an associate, warning him and others “2 fuk up”. That evening he emphasised the need for a “code of silence”.
[14] Stephanie Horner, a firearms expert from the United States, identified gun residue on the clothing worn that day by Mr MacDonald and Messrs Derek and Deuce Savage.
[15] The conviction appeals by Messrs Derek and Deuce Savage are based largely on challenges to the adequacy of the identification evidence and the Judge’s directions relating to them. Deuce Savage also challenges the joinder at trial of the count of demanding with menaces.
Conviction
(a) Derek Savage
[16] Before trial, Derek Savage challenged the admissibility of the visual and voice identification evidence which the Crown proposed to lead in support of the charges against him. In a comprehensive decision delivered on 3 April 2014,[3] Wylie J ruled that the visual identification evidence from Messrs August and Hohepa and Mr Hohepa’s separate voice identification evidence were both admissible.[4]
[17] On Mr August’s evidence, the Judge found as follows:
[37] In my judgment, Mr Savage has failed to prove, on the balance of probabilities, that Mr August’s visual identification evidence is unreliable. I have reached that conclusion for the following reasons:
(a) While it is alleged that the offending took place early in the morning, it is clear from Mr August’s video interview that he was already up, getting ready for work and showered. Although Mr August says that he and the others present may have smoked a little methamphetamine, he said that this did not affect him. Further, the timeframe available for Mr August to have smoked any significant quantity of methamphetamine would have been very short. Mr August says that he was sober, clear headed, and in full control of his faculties.
(b) Mr August said in his interview that he had a clear line of sight to Mr Savage.
(c) Mr August was reasonably confident that Mr Savage was involved. He said that he was “pretty sure” that the person he saw at his front door was Mr Savage.
(d) Mr August’s identification of Mr Savage in the photograph montage occurred only 12 days after the alleged offending. The Crown alleges that the offending took place on 13 September 2013. Mr August identified Mr Savage from the photograph montage on 25 September 2013. There was no significant time lag which could have affected Mr Savage’s memory.
(e) Mr August, in his interview, did not say that Mr Savage was wearing any face covering, such as a balaclava or mask, when the alleged offending occurred. Other prospective witnesses say that Mr Savage was wearing a face covering. I do not consider, however, that this detracts from Mr August’s identification of Mr Savage in the photograph montage. It is possible that Mr Savage was wrongly described by others as having a face covering or mask. Alternatively, it may be that Mr August did not recall the face covering, as it was ineffectual in disguising Mr Savage. It may be that Mr Savage was not wearing the face covering when Mr August identified him at the front door, but that he put it on before coming into the house where he was then seen by the other witnesses. In any event, the purpose of the formal identification process was to give Mr August the opportunity to identify the offender by reference to his face as opposed to his attire. In my judgment, it was not necessary that Mr Savage, and the other persons depicted in the photograph montage, should have been shown in the montage as wearing masks or balaclavas.[5]
(f) While there is a suggestion in Mr Savage’s interview that he had been told that one of the offenders was Mr Savage, that does not detract from the reliability of the visual identification. Mr August said that he was not particularly familiar with Mr Savage. The fact that Mr August was told beforehand that Mr Savage was involved is not likely to have assisted him in identifying the person shown in photograph 3 in the montage as being Mr Savage. In my judgment, Mr August’s identification of Mr Savage in the photograph montage is more likely to be reliable, because Mr August was not particularly familiar with Mr Savage. The formal identification process establishes that Mr August was able to recognise Mr Savage, despite his limited familiarity with him. It is noteworthy that Mr August stated in the report forming part of the formal process that he recognised Mr Savage as being a person who was present at his house when the alleged offending occurred.
[18] On Mr Hohepa’s evidence, the Judge concluded:
[39] Similarly, in my judgment, Mr Savage has failed to establish on the balance of probabilities that Mr Hohepa’s identification of him in the photograph montage is unreliable.
(a) Mr Hohepa knew Mr Savage well. They had worked together for a number of years. Mr Snow will give independent evidence that there was a past association between Mr Savage and Mr Hohepa at work and that that association lasted over a period of years.
(b) Mr Hohepa said in his statement that Mr Savage was wearing a balaclava and a hoodie at the time. However, where persons are well known to each other, such a disguise is less likely to be effective.
(c) Mr Hohepa said that he recognised Mr Savage because, amongst other things, Mr Savage had long hair which was visible out the back of his face covering. Mr Gowing argued that the photograph of Mr Savage in the montage shows Mr Savage with short hair and a beard. He said that there is no other evidence that Mr Savage had long hair at the time of the alleged offending. With respect, Mr Gowing is in error. Mr August also said that Mr Savage had long hair on the day of the alleged offending.
(d) Mr Hohepa also said that he recognised Mr Savage because of his voice. There is evidence from both Mr August and Mr Hohepa that Mr Savage engaged in a conversation initially with Mr Salmon and then with Mr August at the front door of Mr August’s house. If Mr Hohepa was familiar with Mr Savage’s voice, and it seems that he was given the fact that they had worked together, that is likely to be a factor which assists in an accurate identification, along with other matters, such as distinctive hair.
(e) Mr Hohepa saw the person he identified as Mr Savage over a period estimated to be one and a half to three minutes. That is long enough to make a reliable identification. It was not simply a fleeting view.
(f) The alleged offending occurred at daybreak. Mr Hohepa says he saw Mr Savage both at the front door and when Mr Savage came into the kitchen in Mr August’s house. There is nothing in the interview about the lighting conditions, although I note that Mr August, in his interview, says that he, Mr Hohepa and the others present sat at his kitchen table and had a cup of coffee. Presumably, the light was on.
(g) Mr Hohepa is confident that he correctly identified Mr Savage. Their previous association provides a reason for that confidence.
(h) Even though Mr Hohepa had been in Australia for a number of years, and had not seen Mr Savage for some time, he was able to identify him in the photograph montage. If Mr Savage challenges Mr Hohepa’s identification of him as being one of the persons present at the house when the alleged offending occurred, the fact that Mr Hohepa could identify Mr Savage from the photograph montage must be relevant, because it will tend to prove that Mr Hohepa’s identification of Mr Savage at the time of the alleged offending was correct.
[19] On Mr Hohepa’s voice identification evidence, Wylie J found that the Crown had satisfied the statutory burden of proving on the balance of probabilities that the circumstances in which Mr Hohepa’s identification was made had produced a reliable identification.[6] In particular the Judge found:
[46] In my judgment, the Crown has succeeded in proving, on the balance of probabilities, that the circumstances in which the identification was made by Mr Hohepa have produced a reliable identification. I note the following:
(a) Mr Hohepa was familiar with Mr Savage’s voice, because he worked with Mr Savage closely for a number of years.
(b) On the evidence, there was a conversation which took place between Mr Salmon and some of the offenders, prior to the offenders entering the house. Mr Hohepa gives brief evidence of that conversation in his interview. Mr August gives evidence as to the layout of his house and where he and Mr Hohepa were at the time. Mr Hohepa was relatively close to the front door and in a position where he could have heard what was said.
(c) Mr Hohepa’s voice identification is backed up by his visual identification of Mr Savage, which in turn is supported by the fact that Mr Hohepa identified Mr Savage from the photograph montage.
(d) Mr Hohepa was certain that he was able to identify Mr Savage’s voice. He said that he could be sure, because he had worked with Mr Savage for so long, and he stated that one could “never forget a voice like that”.
(e) Mr Hohepa was careful not to attribute a name to one of the alleged offenders because he could not be sure of his identity. He said, “...I could say a name but I might be wrong and I’m not going to say a name cause yeah I just want to say everything that I’ve seen and yeah”. This suggests that Mr Hohepa was being cautious and careful in his identification of the persons he saw.
(f) Mr Hohepa’s interview, in which he claimed to have identified Mr Savage’s voice, was given only a few hours after the alleged offending. There can be no suggestion that Mr Hohepa’s voice identification evidence has been contaminated or that it followed on from a discussion with somebody else in which it was suggested that Mr Savage was one of the offenders.
[20] There was no appeal against Wylie J’s ruling. Accordingly, at trial the Crown led the visual and voice identification evidence from Messrs August and Hohepa in accordance with a direction of the High Court that the circumstances of the identification satisfied the threshold requirement of reliability. Wylie J’s inquiry was undertaken solely for the purpose of determining admissibility within a specific statutory requirement. The Judge was satisfied that it was legitimate for the jury to rely on the visual and voice identification evidence. However, the jury retained the ultimate function of determining whether the evidence was in fact reliable and credible.[7]
[21] Derek Savage was not, of course, barred from challenging the admissibility of this evidence afresh at trial. But he did not take that step. As a result, Derek Savage must establish that the admission of the visual and voice identification evidence, in circumstances where his counsel challenged both the reliability and credibility of both witnesses in cross-examination at trial, led to a miscarriage of justice.[8] This Court adopts the same approach, even where a party challenges the admissibility of evidence in an appeal against conviction.[9]
[22] Mr Dutch’s primary submission in support of Derek Savage’s appeal was that Wylie J’s ruling was wrong. However, he did not subject the evidence actually given at trial to critical analysis or submit that any aspect of it might have given rise to miscarriage. Instead, he challenged Wylie J’s findings at [37], submitting that he wrongly discounted the effect of methamphetamine intoxication on Mr August; and gave insufficient weight to a contradiction between Mr August’s description of Derek Savage as not wearing a mask and the description of other witnesses and to the fact that Mr August identified Derek Savage after being advised that he was a suspect. Mr Dutch also submitted that Mr Hohepa’s visual identification was unreliable because he claimed the person he observed was disguised and because it was contradictory to Mr August’s accounts.
[23] Mr Dutch’s argument cannot be sustained given that this visual evidence had crossed the statutory threshold and we note that all these issues were explored and emphasised at trial. It is now too late to challenge the pre-trial decision allowing its admission. Once the evidence was admitted, it was, we repeat, for the jury to determine whether it was in fact reliable and credible. In cross-examination at trial Derek Savage’s counsel, Mr Balme, challenged the reliability of both identification witnesses. Nevertheless, the jury was satisfied beyond reasonable doubt that Derek Savage was one of the three men who participated in discharging the firearms at both Messrs August and Pirini.
[24] Mr Dutch mounted a similar challenge to Wylie J’s decision and his finding at [46] that Mr Hohepa’s voice identification evidence was admissible. In his submission it was incapable of supporting convictions because, as noted, Mr August identified Derek Savage as not wearing a mask, in contradiction to other witnesses; Mr Hohepa identified Derek Savage’s voice in circumstances where the two men had worked together some years before the shooting; and Mr Pirini identified Derek Savage from a statement during the attack that “its not me Gav”. However, this challenge fails for the same reason as the challenge to the admissibility of the voice identification evidence.
[25] Some question was raised in argument about the adequacy of Lang J’s directions on the Crown’s identification evidence. However, we are satisfied that they were sufficient. We need only to refer to two passages from his summingup. First, the Judge said this:[10]
[18] I am required, also, to give you a special direction in relation to identification evidence. The Crown relies, in part, on evidence given by various eyewitnesses who say that they saw one or more of the defendants doing one thing or the other. Now it is essential that you approach that evidence with very real care and caution. Counsel have already talked to you about this, but I need to emphasise it again because it is very easy in the field of visual identification or voice identification for witnesses to be in error or make mistakes, and a mistaken witness can still be a very convincing witness. In terms of mistaken witnesses in this area, perhaps I can give you the most graphic example and that is Mr Richard Hohepa. When he spoke to the police during their investigation, he told them that Mr Deuce Savage was the person firing a shotgun. In his evidence at trial he said, no that was incorrect, it was Terere MacDonald. Now both versions can’t be correct. Clearly, they can’t. Either one is wrong, or they are both wrong, but that is a very good example of the reason why you have to take very real care in examining what a witness says about their identification of a particular person. And commonsense will tell you that if you don’t do that, then a very grave injustice, or miscarriage of justice, could occur because the wrong person could be found guilty based on a mistaken identification.
[19] So in considering evidence given by eyewitnesses, you are going to need, as I have said, to take into account the circumstances in which identification was made. In this case, you will need to take into account the things that were going on in that house at the time and whether that is likely to have affected the identification. You will also need to look at what the witness may have said in the past, and you will recall the cross-examination by defence counsel about the variation between several of the witnesses’ evidence in Court and earlier statements, and you will also need to take into account issues such as the extent to which the person identified was previously known to the person making identification, whether they had had previous dealings in the past. If so, to what extent were they familiar with each other? By way of example, some of the witnesses, I think it was Mr Pirini, said “Well I had worked with Mr Derek Savage”. Well, you need to take into account the extent to which they had worked together. And you have heard the evidence from the employer and counsel for Mr Derek Savage said “Well actually, when you put it together, that was a very long time ago”. And then the opportunities to come into close contact so as to be able to identify voice or even physical features, was actually quite limited when you look at it. So you take into account all of those factors when you are considering eyewitness identification and you exercise very real care and caution before you conclude, based on that evidence, that a person has been correctly identified.
[26] Second, when summarising Mr Balme’s address to the jury, the Judge reinforced his earlier identification warning in these terms:
[82] Now dealing with the events at the address, Mr Balme acknowledged that three people have said they identify Derek Savage as being the person who came into the address and, quite rightly, he emphasised to you the fact that three people have said that does not make the proposition any more real, and I endorse that submission. If I haven’t already directed you it would I have no doubt be implicit from my earlier directions that, if one person can be mistaken so can three people, so you need to adopt the same care in relation to each of those. It is not a game of numbers. One person’s identification does not become any stronger simply because two others also say it was the same person. What you need to do is go back and look carefully at what each of the witnesses said. And in this context, Mr Balme says “You need to be pretty careful about Mr August’s evidence because it makes sense that anyone going to the address for the type of event that occurred, would be disguised and yet Mr August said that Derek Savage was not disguised”, and he says that that would be highly unusual in that situation. Other people said that the person identified as Derek was masked and so Mr August was clearly wrong on that point. If he was wrong on that point ,then you have to wonder about the balance of his identification.
[27] We are not satisfied that the admission of the Crown’s voice and visual identification evidence against Derek Savage, which was available to the jury together with the relevant circumstantial evidence,[11] led to a miscarriage of justice.
[28] Additionally or alternatively, Mr Dutch submitted that Ms Horner’s gunshot residual evidence was tendered late; and that its introduction led to an unfair trial. In a bench note made on 9 June 2014, the opening day of trial, Lang J recited defence counsel’s advice that a challenge to evidence of the gunshot expert (then a Ms Julia Patterson) was likely. However, no challenge materialised. Nor was there a request for an adjournment. This ground, and with it Derek Savage’s appeal against conviction, fails.
(b) Deuce Savage
[29] Mr Gwilliam was assigned as Deuce Savage’s counsel just before the hearing. At short notice he prepared a careful and comprehensive argument in support. We are grateful for his assistance. Without opposition from the Crown, we granted Deuce Savage’s application for an extension of time (his original notice had been filed 15 days late). Mr Gwilliam advanced a number of grounds in support of Deuce Savage’s conviction appeal.
(i) Joinder
[30] First, Mr Gwilliam submitted that the charge against Deuce Savage of demanding of menaces should not have been joined at trial with the firearms and related charges. The events occurred a month apart. Originally Deuce Savage was charged jointly with Mr Ngaheu. On 7 March 2014 Lang J dismissed the Crown’s original application to have the two sets of charges tried jointly. That was because the Crown had been unable to locate Mr Ngaheu.
[31] On 22 May 2014 Keane J allowed a renewed application by the Crown for joinder.[12] By then Mr Ngaheu had been located. Also, the victim, Mr Sattler, had made a further statement to the police to the effect that when he left Mr Sattler’s house Mr Ngaheu said he was going to Jeremy August’s house. The application was not advanced on the basis that the evidence of the two separate events was of a propensity nature.
[32] Keane J accepted the Crown’s argument that evidence of the events on 13 August 2013 was in itself evidence of linkage to identification of Deuce Savage and Mr MacDonald on the aggravated robbery charge which they faced and also to the firearms charges. He was satisfied that it was relevant and probative and did not carry unfair prejudice. He refused Deuce Savage’s application for severance but granted Mr Ngaheu’s application for severance.
[33] Mr Gwilliam challenges Keane J’s decision. However, as with the other pretrial rulings, it was not the subject of an appeal and it cannot now be revisited. While Mr Gwilliam carefully dissected Keane J’s conclusion on linkage – particularly by reference to evidence given at the trial – that only goes to the basis for the joinder order, not to whether a miscarriage occurred. The only question is whether joinder led to a miscarriage of justice.
[34] In Mr Gwilliam’s submission Deuce Savage’s defence at trial was unduly prejudiced because, while linking him to Mr MacDonald, the demanding with menaces charge also linked him to Mr Ngaheu. Even though Mr Ngaheu was not charged with the firearms offending, this fact was nevertheless mentioned in crossexamination of Mr Hohepa. However, no objection was taken at trial and we do not regard that factor as causing unfair prejudice to Deuce Savage.
[35] Also, Mr Gwilliam submitted that:
- (a) The mere allegation that Deuce Savage offended a month before the firearms incident would have prejudiced his ability to have a fair trial on those charges, and would lead to unfair propensity reasoning. We do not accept this proposition. The Judge’s directions to the jury appropriately addressed this risk.[13]
- (b) Deuce Savage could have given evidence in his defence on the demanding with menaces charge, in particular explaining his presence and his lack of involvement in Mr Ngaheu’s threats. Joinder of this charge with a more serious charge meant that he was precluded from presenting that defence. We cannot accept this argument. Deuce Savage has not deposed that he was willing and able to give evidence answering the Crown case and, in any event, it was always open to him to give evidence in his defence;
- (c) As a result of joinder Mr Sattler’s evidence was admitted. Its prejudicial effect on the firearms charges, by casting Deuce Savage as a standover or intimidating presence, far outweighed its probative value. However, Lang J’s directions to the jury answered this point.
(ii) Unreasonable verdict
[36] Second, Mr Gwilliam submitted that the jury’s verdict on the demanding with menaces charge was unreasonable. That was because Deuce Savage was charged as a party whose presence was said to constitute the requisite degree of assistance or encouragement to Mr Ngaheu. In Mr Gwilliam’s submission the evidence was simply insufficient to reach that threshold. Evidence of some positive act on Deuce Savage’s part, whether in the nature of conduct or words, was required in order for the jury to find that he gave intentional assistance or encouragement.
[37] We reject this submission. We accept that mere presence at the scene of an offence is not of itself sufficient to constitute secondary liability.[14] However, it was open to the jury to infer Deuce Savage’s intention to assist and encourage Mr Ngaheu’s commission of the principal offence of demanding with menaces from the circumstances of his presence coupled with the facts that he was deliberately present, was witnessing the commission of an offence and took no steps to intervene.[15]
[38] The Judge correctly directed the jury on this issue. He identified it in the question trail as whether the jury was satisfied that Deuce Savage intentionally assisted and/or encouraged Mr Ngaheu to demand the sum of $200 from Mr Sattler with intent to steal that sum. He emphasised that the jury must be satisfied that Deuce Savage knew what Mr Ngaheu was doing. He referred to the Crown case that Deuce Savage’s bulk, muscle and presence, and the way that he stood in the room, provided the evidential foundation for the necessary inference. There was Mr Sattler’s uncontradicted evidence that he felt intimidated not just by Deuce Savage’s presence but by his manner, his size and the way he was standing against the wall with his arms folded, watching what was happening. The Judge also referred to the defence case that Deuce Savage’s presence, on its own, was insufficient.
[39] We are in no doubt that, when all the circumstances are taken into account, Deuce Savage’s presence provided an adequate evidential factual foundation from which the jury was entitled to draw an inference that he was there to assist and encourage Mr Ngaheu. In this respect it is significant, as Mr Downs emphasised, that Deuce Savage’s trial counsel, Mr Edward, did not apply at the end of the Crown case for Deuce Savage to be discharged on this count on the ground of insufficiency of evidence.[16]
(iii) Identification
[40] Third, Mr Gwilliam submitted that the Judge’s identification directions on the firearms charges were inadequate. In support, like Mr Dutch, he referred to deficiencies in the visual identification evidence from Messrs Hohepa and Pirini. However, we note that there was no challenge by Deuce Savage, of the type made by his father, to the admissibility of this evidence before trial. It was thus for the jury to evaluate its reliability after it was fully tested at trial.
[41] Mr Gwilliam confined his submission accordingly to the adequacy of the Judge’s identification warning set out above (at [24] and [25]). He alleged that the direction was deficient in these respects:
- (a) The Judge’s reference to a requirement that he give a special direction could be construed as distancing himself to some degree from the importance that the Judge himself must place on that particular direction. In reliance on the Supreme Court’s decision in CT (SC88/2013) v R[17] Mr Gwilliam submitted that by using the language of requirement the Judge failed to take personal responsibility for the warning. While we agree that it would have been preferable if the Judge had not used the language of obligation, when considered in the context of a long and careful summing-up the phrase he used could not possibly have conveyed the wrong impression to the jury or caused a miscarriage of justice.
- (b) The Judge’s directions to the jury to take “very real care in examining what a witness says about the identification of a particular person” which can lead to a “very grave injustice or miscarriage of justice” did not go far enough. He was required to advise the jury that mistaken identification can result in “a serious miscarriage of justice”.[18] We are in no doubt that the synonyms used by the Judge satisfied the purpose and spirit of the statutory requirement;
- (c) The Judge failed to warn the jury that, where there is more than one identification witness, it is possible that all of them may be mistaken.[19] However, at a later stage in his summing-up the Judge expressly directed the jury in these terms, as set out above (at [25]). While the direction was by reference to Derek Savage’s defence, we are satisfied that the jury would have construed its terms as a warning of universal application to all identification witnesses at trial.
[42] In a general sense, and relying on the Supreme Court’s decision in Fukofuka v R,[20] Mr Gwilliam concluded with a submission that the Judge had failed to inject into his summing-up the appropriate and statutorily required level of scepticism of identification evidence, particularly when the relative weaknesses of the Crown’s identification evidence are taken into account.
[43] We do not accept that submission. The Judge’s identification warnings were clear, concise and correct. Apart from those recited in this judgment (at [24] and [25]) he had earlier warned the jury in emphatic terms about the reliability of identification evidence in circumstances where the offending occurred in a three minute time span and in traumatic circumstances.[21] He left the jury in no doubt that, to use his words, it was to approach such evidence “with very real care and caution”.[22] He gave an example of Mr Hohepa’s contradictory accounts. He emphasised that a failure to exercise “very real care” could lead to a “very grave injustice or miscarriage of justice”, and in that “the wrong person could be found guilty based on a mistaken identification”.[23]
(iv) Aggravated robbery
[44] Fourth, in written submissions Mr Gwilliam challenged the grounds for Deuce Savage’s conviction on the aggravated robbery charge. In argument, however, he advised that he did not intend to advance this argument further. We are satisfied that Mr Gwilliam’s approach was correct. We are not satisfied that there was any realistic basis for Deuce Savage to challenge his conviction on this charge.
Sentence
(a) Starting point
[45] All three appeals against sentence are directed primarily to the Judge’s adoption of a starting point of 12 and a half years imprisonment on the most serious counts of discharging firearms with intent to cause grievous bodily harm to Messrs August and Pirini. It was, as Mr Downs emphasised, common ground in the High Court that the offending fell within what is known as band 3 of the Taueki[24] guidelines. The appropriate starting point range was one of nine to 14 years imprisonment. Among the obviously aggravating factors the Judge identified extreme violence, premeditation, (very serious and near fatal) permanent injury, use of lethal weapons, multiple attackers, home invasion and gang violence. The Judge acknowledged the devastating effect on both victims; they suffer enormous pain, have been required to spend lengthy periods in hospital undergoing and recovering from numerous observations; they have lost their means of employment; and they have also suffered significant psychological trauma.
[46] Mr Downs is right to emphasise (a) that the maximum penalty for this offence was 14 years imprisonment; and (b) the statutory requirement[25] to impose a penalty near to the prescribed maximum if the offending is near to the most serious of cases for which the penalty is prescribed. It is difficult to envisage more serious offending of its type for one victim, let alone two. All appellants are fortunate that their victims survived, if only because it spared them the inevitability of murder convictions and of sentences of life imprisonment with minimum terms of at least 17 years.
[47] Nevertheless, on Mr MacDonald’s behalf, Mr Nabney submitted that the starting point was too high. He relied on the inability of witnesses to identify which of the three assailants fired the shots causing the serious injuries to the victims. He accepted that Mr MacDonald was present and must have been armed. But he said that the Judge erred in effectively treating each of the three attackers as a principal offender whose culpability must be assessed accordingly. He submitted that Mr MacDonald should have the benefit of the doubt and be treated as a secondary party who encouraged and assisted the principal offender whoever he was.
[48] We reject this submission. In a joint enterprise like this, where all three assailants are armed, it is artificial to expect a sentencing Judge to speculate in favour of one or more of the three offenders about whether he in fact fired the shots. Taken to its logical conclusion, Mr Nabney’s argument would mean, because nobody can identify which of the three men fired the two shots, all should be treated as secondary parties entitled to the benefit of discounted starting points. That would make a nonsense of sentencing principles. What matters is that each of the three men were armed in accordance with a pre-meditated plan, and that one or more of them discharged his firearm at point blank range at two unarmed victims. Mr MacDonald’s appeal against this element of his sentence must fail.
[49] In support of Derek Savage’s appeal, Mr Dutch adopted Mr Nabney’s submissions and suggested that a starting point of 11 years imprisonment was appropriate. Derek Savage’s appeal against the starting point must fail also. In this respect we record that both men appealed against a minimum period of imprisonment of six years and four months but only if their appeals against their primary sentences were successful.
[50] Mr Gwilliam submitted that Deuce Savage’s culpability was less by virtue of the fact that he was then 21 years of age and under the influence of his father who handed him the firearm. Derek Savage was the instigator and leader. According to Mr Gwilliam, Deuce Savage denies firing any shots and was there to talk with Mr August rather than with any aggressive intent. While a starting point in the range of nine to 14 years would normally be appropriate, it should be reduced to eight years for Deuce Savage.
[51] We do not accept that Deuce Savage’s culpability was reduced by his age and there is no evidence that he acted under his father’s directions. It is significant, as the Judge recorded when sentencing all three men, that while Mr MacDonald first roused Deuce Savage after he was struck by Mr August, it was Deuce Savage who then roused his father from a house nearby and then joined the other two men in Pinepine Savage’s vehicle which was used to drive to Mr August’s house. Deuce Savage was in every sense an equal participant with his father and Mr MacDonald.
[52] We see no basis upon which Deuce Savage’s culpability might be treated less seriously than his companions. Moreover, as the Judge noted, in 2011, despite his age, he had been sentenced to a term of imprisonment on firearms related charges. Even though it would have been open to him to do so, the Judge declined to uplift the starting point for this previous offending.[26] His approach in offsetting Deuce Savage’s relative youth against this aggravating factor cannot be faulted.
(b) Mr MacDonald’s cumulative sentence
[53] Mr MacDonald also challenged the Judge’s imposition of a cumulative sentence of 18 months imprisonment on the charge of aggravated robbery. Mr Nabney did not take issue with the Judge’s adoption of a starting point of three years for this discrete offence. However, he submitted that a reduction to 18 months imprisonment for totality when imposing a cumulative sentence was inadequate.
[54] We see no justification whatsoever for any further reduction or for interfering with the Judge’s imposition of an end sentence of 14 and a half years imprisonment – comprised of 12 and a half years starting point for the firearms offences, an uplift of six months for previous convictions, and a further 18 months cumulative for the charge of aggravated robbery.
(c) Deuce Savage’s additional sentences
[55] Mr Gwilliam submitted that the Judge made a significant arithmetical error in imposing sentence. After sentencing each defendant to 12 and a half years imprisonment on the firearms charges, he said this:
[46] Mr Deuce Savage on the charge of demanding with menaces and on the charges of demanding with menaces and aggravated robbery you are sentenced to concurrent terms of two years three months imprisonment.
[56] Later, after reconvening the Court, and referring to the firearms sentences, the Judge noted:
[52] The other two sentences imposed on Mr Deuce Savage are concurrent with each other, but cumulative on the sentence imposed on [the firearms charge].
[57] On this basis, the Judge imposed an end sentence of 14 years and nine months imprisonment on Deuce Savage – 12 years and six months on the firearms charges cumulative upon concurrent sentences of two years and three months on the armed robbery and demanding with menaces charges. Mr Gwilliam, however, drew attention to earlier passages in the Judge’s sentencing remarks which might indicate that he intended to impose a cumulative sentence of 18 months imprisonment for the aggravated robbery and demanding with menaces charges, making a total of 14 years imprisonment. He submitted that the sentence eventually imposed did not reflect the Judge’s intention.
[58] We are not satisfied that the Judge erred. The terms of his orders, set out above, leave no doubt about his intention to impose an end sentence of 14 years and nine months imprisonment on Deuce Savage. We are not satisfied that it was excessive or wrong in principle.
Result
[59] Mr MacDonald’s appeal against sentence is dismissed.
[60] Messrs Derek Savage and Deuce Savage’s appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
Tony Balme Law, Tauranga for
Appellant (CA475/2014)
Main Street Legal Ltd, Upper Hutt for Appellant
(CA611/2014)
[1] R v Savage [2014] NZHC 1802.
[2] At [15].
[3] R v Savage [2014] NZHC 652.
[4] Evidence Act 2006, ss 45(1) and 46.
[5] See R v Fraser [2009] NZCA 520.
[6] Evidence Act, s 46.
[7] R v Edmonds [2010] NZCA 303, [2010] 1 NZLR 762 at [102]–[108].
[8] CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [5].
[9] See for example Wang v R [2014] NZCA 252 at [16]–[18]; Kupa v R [2015] NZCA 135 at [12]–[14] and [16]; and Edmonds v R [2015] NZCA 152 at [19]–[21] and [32]–[33].
[10] R v Savage HC Tauranga CRI-2013-087-1479, 19 June 2014 [summing-up].
[11] See at [13] and [14] above.
[12] R v MacDonald [2014] NZHC 1112.
[13] Summing-up, above n 10, at [13] and [14].
[14] See Charnley v R [2013] NZCA 226, (2013) 26 CRNZ 264 at [45]; Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [82]–[83] per McGrath, Glazebrook and Tipping JJ, at [23] per Elias CJ (but cf at [29]), and at [246] per William Young J (but cf at [297]).
[15] R v Duncan [2008] NZCA 365; R v Inoke [2008] NZCA 403; Charnley, above n 14, at [45]–[46].
[16] Henwood v R [2014] NZCA 111 at [20].
[17] CT (SC88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465 at [55].
[18] Evidence Act, s 126(2)(a).
[19] Evidence Act, s 126(2)(c).
[20] Fukofuka v R [2013] NZSC 77, [2014] 1 NZLR 1.
[21] At [8].
[22] At [18].
[23] At [18].
[24] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [34](c).
[25] Sentencing Act 2002, s 8(d).
[26] At [36].
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