Tangiora v R [2019] NZCA 115 (17 April 2019)

Last Updated: 1 May 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA450/2018 [2019] NZCA 115

	BETWEEN	TE AIHURANGI EDWARDS TANGIORA Appellant
	AND	THE QUEEN Respondent

Hearing:	4 April 2019
Court:	Gilbert, Wylie and Thomas JJ
Counsel:	H S Edward for Appellant J E L Carruthers for Respondent
Judgment:	17 April 2019 at 9 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

[1] Te Aihurangi Tangiora was found guilty by a jury and convicted of wounding with intent to cause grievous bodily harm to Robert Moke on 29 January 2017. The Crown case was that Mr Tangiora, then a patched member of the Mongrel Mob, and three male associates arrived at Mr Moke’s address late that night to confront him about an incident earlier in the day to which Mr Tangiora had taken exception. After a heated exchange between Mr Tangiora and Mr Moke, Mr Tangiora is said to have directed the principal offender, who was also wearing his patch, to shoot. Mr Moke was then shot in the leg.
[2] Mr Moke and his partner Diane Williams, who was standing near him at the time, independently made statements to the police soon after the incident occurred. They both stated that Mr Tangiora, who was well-known to them, was not the shooter but he gave the order to shoot.
[3] At the trial, Mr Moke and Ms Williams persistently refused to answer questions in any meaningful way and both were eventually declared hostile. Their statements were then produced in evidence through the police officers who took them. These statements formed the primary evidence for the prosecution.
[4] Mr Tangiora appeals against his conviction. His counsel, Mr Edward, contends that the statements should have been excluded under s 8 of the Evidence Act 2006 because of the unfair prejudice resulting from his inability to challenge Mr Moke and Ms Williams on their statements in crossexamination.

The statements

[5] Ms Williams spoke to Constable Watson on the night of the shooting, very soon after it occurred. Ms Williams said that she had known Mr Tangiora since he was six years old (he was aged 28 at the time of the shooting) and he is known as “Prophet”. She stated that she observed a white station wagon outside her house, half on the road and half in the driveway. She went outside to see who it was. She saw a male with his patch on back to front walking towards her. She recognised him as being Mr Tangiora. She said Mr Tangiora began swearing at her. At this point, Constable Watson was directed by his superior to obtain a full written statement at the police station. Ms Williams signed the bullet point notes Constable Watson had made in his notebook alongside an attestation confirming the truth and accuracy of the statement, acknowledging that it was to be used in court proceedings and that it is an offence to make a statement known to be false or misleading. After Ms Williams signed the notebook, she told Constable Watson that Mr Tangiora “told the other guy to shoot and he didn’t actually shoot himself”. Constable Watson made a note of this in his notebook at the time.
[6] Ms Williams confirmed her account in a formal written statement she made to Detective McKenzie the following day, adding considerable detail. She said that after her sister told her that “friends” were outside, she went out through the front door to see who it was. She saw a man wearing a Mongrel Mob patch but initially could not see who it was. A car came around the corner and with the assistance of the car lights she recognised the man as being Mr Tangiora, whom she also knew as Prophet. Ms Williams said Mr Tangiora swore at and abused her before Mr Moke came out to find out what was happening. She said Mr Tangiora then accused Mr Moke of trying to run him over and this led to an angry exchange between the two of them. Ms Williams confirmed what she had said the previous evening that Mr Tangiora gave the order to shoot, saying “blaze her”. The shooter, who Ms Williams estimated was about two car lengths away from where she and Mr Moke were standing, pointed the gun at her before turning it on Mr Moke and firing.
[7] Ms Williams initialled the statement on every page and signed it in the space provided immediately below the statement “I confirm the truth and accuracy of this statement. I make the statement with the knowledge that it is to be used in court proceedings. I am aware that it is an offence to make a statement that is known by me to be false or intended by me to mislead”. The statement was witnessed by Detective McKenzie. Ms Williams also signed the diagram she drew at the same time showing the location of the cars, the four men and the front door of the house where she and Mr Moke were standing.
[8] Mr Moke made his statement to Constable Dooley from hospital on 31 January 2017. Mr Moke said he had known Mr Tangiora since he was young and had once sold him a truck. Mr Moke confirmed that Mr Tangiora is known by the name “Prophet”. While there are inconsistencies in some of the details, Mr Moke confirmed the key aspects of Ms Williams’ account. Mr Moke said that on Sunday 29 January 2017, around 2 pm, he went for a drive in a car he had purchased that day. He drove past Mr Tangiora and two others who were standing in front of a fence wearing their patches. Mr Tangiora said he drove past them “quite fast” but he remained on the road and did not “come anywhere near them”.
[9] Later that night, around 11 pm, Mr Moke said he was alerted by his daughter that there were some men outside their house. Mr Moke said he went out through the front door and saw Mr Tangiora and three other men he did not know. Two of the men were standing out on the street next to a white Subaru that was parked across the front of the driveway. Mr Tangiora was standing beside one of two cars belonging to Mr Moke that were parked on the property between the gate and the front door. The other man was standing beside the other car. Mr Tangiora started arguing with Mr Moke claiming that he had tried to run him over. Ms Williams was standing beside him outside the front door at the time. Following a heated exchange, Mr Moke challenged Mr Tangiora to have “a one out, just him and me”. Mr Moke said he ran around to the back of the property to get a metal bar and continued arguing with Mr Tangiora when he returned with it. A short time later, Mr Tangiora said something like “blaze him”. Mr Moke said the shooter raised his sawn-off shotgun and aimed it first at Ms Williams and then at him before shooting him in the leg.
[10] Mr Moke drew a diagram showing where everyone was standing in relation to the house, the front door, the cars and the driveway. This diagram is similar to the one drawn by Ms Williams.

Evidence at trial

[11] The trial commenced on 9 May 2018 in the District Court at Hamilton with Judge K B F Saunders presiding. Mr Moke was the first witness called by the prosecution. He gave his evidence by CCTV from the nearby police station. After taking the oath, Mr Moke answered a few preliminary questions about himself and his family. However, as soon as he was asked about the events of 29 January 2017, he made it clear that he would not answer:

Q Mr Moke you’re here because of something that happened to you on the 29^th of January last year and I’m just going to ask you some questions about that. Back in January, the end of January last year, did your partner Diane live at an address [...] in Hamilton?

A Ah, no comment. Don’t even want to be here, I don’t want to say anything right from the beginning.

Q I need you to answer my questions please, Mr Moke. Can you tell us?

A Can you arrest me?

Q Can you tell us whether Diane lived at a house at [...] last year?

A Chuck me in a cell, whatever. I’m not even gonna talk, not even gonna answer any of your questions. I can’t even talk properly, I haven’t got any teeth.

[12] Further questioning yielded similarly uncooperative responses. Following discussions with counsel in the absence of the jury, the Judge endeavoured, without success, to secure Mr Moke’s cooperation, including by warning him that his conduct could amount to contempt of court. After further discussion with counsel in the absence of the jury, the Judge granted the Crown’s application to declare Mr Moke hostile and permit cross-examination on his statement.^[1]
[13] Mr Moke’s statement was then placed before him. The prosecutor took him through the statement line-by-line, however Mr Moke answered every question “no comment”. At the conclusion of evidence-in-chief, the prosecutor asked:

Q Why don’t you want to give evidence Mr Moke?

A I don’t have to.

Q Are you going to tell me why you don’t want to give evidence?

A Nah. Still alive today, am I? No comment. Times 100 million.

[14] Mr Edward fared no better when he attempted to cross-examine. After explaining that he was acting for Mr Tangiora, Mr Edward asked Mr Moke whether he had written the statement or whether someone else had done so. Mr Moke responded:

A I choose not to answer questions, um, I just said no comment eh.

Q Do you, do you say that the things that you’ve said, “No comment” to, are you prepared to say that they are lies or not?

A Nah, no comment.

Mr Edward asked three more questions all of which were met with the response “no comment”. Mr Moke was then excused.

[15] Ms Williams was called next, also via CCTV. She was initially cooperative and answered preliminary questions. However, she said she could not remember anything about the afternoon or evening of 29 January 2017:

A Can’t remember nothing. Pardon?

Q You can’t remember nothing?

A Nah. It’s a blur.

[16] Ms Williams was then asked whether her memory might be refreshed by looking at the statement she made to the police. She answered “maybe”. After her statement was shown to her, she confirmed that she had made the statement and signed it on each page. She was then asked to read the statement to herself. Ms Williams declined to do so:

A I can’t read it, I don’t want to read it.

...

A I can read but I, I can’t bring myself to read it.

Q Why can’t you bring yourself to read it, Ms Williams?

A I don’t want to.

Q Why don’t you want to read it?

A Because it’s emotionally affecting me. I don’t want to, I don’t wanna be here, I’m here because I have to be here, I don’t want to be here.

Q Can you tell us why it’s?

A I don’t want to speak about it or nothing.

Q Why don’t you want?

A Because I don’t.

Q Can you tell us?

A I don’t want to.

Q Why you don’t want to speak?

A ‘Cos I have nothing to say. I have nothing to say.

[17] The Judge intervened but was unable to make progress:

Q All right, well let’s —

A I’m sorry, got nothing to say and I don’t know how many people I’ve gotta tell to say that, “I don’t wanna say anything. I don’t wanna say nothing,” and I don’t fuckin have to.

[18] After further discussions with counsel in the absence of the jury, Ms Williams was again asked to read her statement to herself, which she did. The prosecutor then asked whether it refreshed her memory. Ms Williams answered, “no comment”. All subsequent questions received the same answer. The jury was again invited to retire. The Judge then granted the Crown’s application to declare Ms Williams hostile.^[2] The prosecutor then took Ms Williams through her statement line-by-line but all questions were answered “no comment”. The Judge asked her whether there was any reason why she was not answering the questions. Ms Williams responded:

A No reason. I’ve got no reason that, I’ve just got nothing to say.

[19] Ms Williams was shown the diagram she prepared. She confirmed that her initials appeared on the diagram but when asked whether she drew it, she responded “no comment”. Ms Williams confirmed a few basic details shown in photographs taken by the police including that they showed her house, the car that Mr Moke had purchased that day and where she and Mr Moke had been standing at the time of the incident. However, when she was asked about where Mr Tangiora had been standing, she reverted to answering, “no comment”. She gave this same answer to all other questions about the incident. Mr Edward also got nowhere with Ms Williams. He commenced his cross-examination by stating that he was Mr Tangiora’s lawyer. Ms Williams confirmed that she understood this. However, the other questions Mr Edward asked were met with the answer “no comment”.
[20] It is common ground that the Crown had no advanced warning that Mr Moke or Ms Williams would be hostile witnesses. After conducting a voir dire, the Judge granted the Crown’s application to admit the statements these witnesses had made to the police.^[3] In ruling these statements admissible, the Judge was satisfied that the probative value of the evidence was not outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding.^[4]
[21] Constable Dooley produced the statement he took from Mr Moke and the diagram he prepared. Detective McKenzie produced Ms Williams’ statement and diagram. Constable Watson gave evidence about the statements Ms Williams made to him on the night of the shooting, summarised at [5] above and recorded in his notebook at the time.
[22] Various text messages sent by or to Mr Tangiora’s cell phone before and after the incident were produced. Mr Tangiora referred to himself as “Prophet” in these texts, some of which indicated he was performing an enforcement role in the Mongrel Mob at the time. For example, on 26 January 2017, Mr Tangiora sent a text to an unknown recipient referring to a “pezant dog” and stating that he was “quite fortunate that i never got the prospect to poke some holes in him”. At 2.13 am on the day of the shooting, Mr Tangiora sent a text to another unknown recipient:

u mutha fukaz are dead kunt. blow sme holes in ur fukn legz wn i catch youz. and i will catch u mutha fukaz. SFH.MMM.AT.NATION.youz are all over

[23] At 11.47 am that day, Mr Tangiora sent a text saying that he had “jus cme bk from smashn da dudes” and then two minutes later sent another text to the same recipient saying “2 more kuntz to correct and thtz me for the day”. At 11.54 am, Mr Tangiora sent a text to an unknown person advising that he had:

smashd ths kunt ova dog.gna guk to sefton n sukit to ths other kunt too;thn try snif owt ths otha mut

[24] These messages were sent prior to the driving incident that seemed to have prompted Mr Tangiora’s visit to Ms Williams’ address later that night. At 9.42 pm on the night of the shooting, Mr Tangiora sent a text asking for the use of a vehicle “to gain access to da fireworks”.
[25] Text messages sent by Mr Tangiora on the day after the shooting were also produced by the prosecution. At 1.52 am on 30 January 2017, less than three hours after the shooting, Mr Tangiora sent a text in response to an associate’s offer of a lift saying “yah pls I will jump in.boot”. Five minutes later, Mr Tangiora sent another text to the same person “I cn feel the feds getn close my bro”. At 8.15 pm, Mr Tangiora sent a text to another person about making contact with “somebody who can find out if the dudes done a verse about made,to thefeds” (“Made” is another name Mr Tangiora goes by). Mr Tangiora sent a further text at 8.47 pm that day:

im sarge now so the retaliation call is on me,i’ve gta give tht final call,im not worried about them at all,but another thing about this position,is tht thier getn shutdown,and thts real shit,we aint.allowed to accept any signs of disrespect,if they refuse thn we’ll move forward and engage until they do,so frowz will hav to get at me if he wants to knw anything,but the end of the day,we’re MMM.we aint waikato or anything.we engage in all bad things.so il p

[26] A series of revealing texts were sent by Mr Tangiora to an unknown person around 10.50 pm on 30 January 2017, the day after the shooting:

this is all about respect,treason,and making examples brutha.nothing more,nothing less.fukn waniak stood on my toes and I aint letting that slide.outlawz go

t a good history of letting treasonous acts slide.not me,im a fukn mobsta.who am I if I let slide,2^nd thing is,I went bk to reup and noides zooms past

me n the dogs while we was walkn and lookd like he wanted to stunt,now u knw all he does is drive bys being tuff but doesn’t actually get out and stunt,so

I decided,fuk that,and made a decision to take it to the zone,I told him cme out and be real,get down,one outs like gangstaz are meant to,he sacks it and

Him n his bitch start running thier mouth callin me dog#&quot:& nark,fake kunt n evry other dsrespectful word there is!!now take into consideration tht iv g

ot a real reptible patch member with me and he dont talk or play games,next thing u knw,guy fawkes display.hes already getn his for that brother.no doubt,

he aint htown so he has to ansa for that.but we are the fukn mob my bro, we aint kids anymore,shits real.because the pack down wairoa ways heard tht noids

n them snitched to the feds,theres a hitsquad ready to silence the perpetrators,and because of the position tht imin now,I hold the last say,so thier w

aitng brutha.yous have to stand down.realshit.il just say that much.iv got heaps of love for you my bro, I truely do

...

this aint about a bitch or hating,its about respect,treason,and making examples.I aint a pezant,im a real mutha fucka,I let shit slide with the lawz for

too long.I might aswell be a nobody if I let shit slide with my chrome on.

and u already knw that half that team aint even real.snakes,snitches and bitches.ur probably the onli one left whos kept it real.as far as I know,I vouched

for u when I seen u stay hard during our operation.all the rest are fake and cowards, ...

[27] After Mr Tangiora was arrested, Detective McKenzie spoke to him at the Hamilton Police Station. Detective McKenzie said Mr Tangiora told him that he only gained his patch three months earlier and he was not able to order the shooter to do anything. Mr Tangiora said he was going to hand in his patch after this.

Judge’s summing-up

[28] The Judge cautioned the jury about the accounts Mr Moke and Ms Williams gave to the police given that this evidence could not be tested:

[13] Because of the position that Mr Moke and Ms Williams took at this trial, the account they gave to the police in those statements has not been tested. It has not been tested by cross-examination and that is a factor that you need to have regard to when you come to assess what is said in the statements and what weight you give to it. It is entirely a matter for you whether you accept what Mr Moke said to the police is credible and reliable and in the same vein whether you accept what Ms Williams has said. But it is important that you have not been placed in a position where you yourselves have seen their account tested and their responses to it and Mr Edward has suggested that the statements are unreliable and you should treat what is said with caution because of that very fact. He also said to you that they are not consistent accounts in any event and you will recall he said that Mr Moke referred to getting the steel bar but nothing said about that by Ms Williams. But, most importantly, no chance for the defence to challenge it so the credibility has not been tested. Ms Guthrie of course said well do not be perturbed by the fact that they are not entirely consistent accounts because that is what is expected when you have two people who are giving a description from their own personal perspectives.

[14] The Crown also says that you can rely on the statements as credible and reliable because to a large extent the other evidence points to the reliability and consistency of them, that is the text messages, the fact that Mr Tangiora went into hiding, the positions that Ms Williams pointed out the respective players had that evening that are in the photographs and so on.

[15] So these are all matters that you are going to have to give careful consideration to in the context of Mr Moke and Ms Williams refusing to give you any assistance in terms of giving evidence in Court. In the context that Mr Moke refused to acknowledge making his statement you must however take an initial step. You must first be satisfied that he did in fact make that statement and sign it as true and correct before you can consider it at all but, as I have said, Ms Williams has accepted she made the statements so that part of it should not trouble you. If you are satisfied that Mr Moke and/or Ms Williams did make the earlier statements it is a matter for you whether you accept the statements are reliable because of the position taken by the witnesses not to comment or to provide a reason why they now took that stance and of course I do need to tell you that you cannot speculate or guess why they took that position. If you accept what they said to the police is correct, either Mr Moke or Ms Williams or both of the, there is evidence that you can use in your deliberations and you need to consider how far that takes you in determining the verdict. Finally, even if you are satisfied that both of them made the earlier statements because the earlier statements are the only direct evidence against the defendant you do need I suggest to be cautious bearing in mind the position that they took in finding the charge proven beyond reasonable doubt without considering the totality of the evidence before you.

[29] Near the end of her summing-up, the Judge reminded the jury of Mr Edward’s submissions in his closing address that Mr Tangiora was in no position to order the third man to shoot Mr Moke, and this was consistent with both the text messages and Mr Tangiora’s statement to Detective McKenzie following his arrest. The Judge concluded by focusing the jury on the key issue in the case:

[37] So to sum it all up there is no dispute Mr Tangiora was at Mr Moke’s house that night, no dispute Mr Moke was shot in the knee. The issue for you is whether Mr Tangiora ordered the shooting, was he a party, was he in a position to do that, did he encourage and incite the shooter.

Submissions

[30] Mr Edward submits that the prior statements of Mr Moke and Ms Williams should have been excluded under s 8 of the Evidence Act because the probative value of this evidence was outweighed by the unfair prejudice to the defence in not being able to cross-examine. Mr Edward argues that Mr Tangiora had no opportunity of testing the reliability of the statements and was therefore denied his rights to offer an effective defence and examine witnesses called by the prosecution assured by s 25 of the New Zealand Bill of Rights Act 1990.
[31] Mr Carruthers, for the Crown, submits that the Judge was correct to admit the statements. The witnesses were plainly hostile. The circumstances in which their statements were obtained did not give rise to any concerns as to their reliability. Other evidence provided independent support for the statements. For example, Mr Tangiora admitted to the police that he was present at the shooting and it could be inferred from his contemporaneous text messages that he was an enforcer for the gang at the time and went into hiding after the incident. Mr Carruthers notes that the inability to crossexamine the maker of a statement cannot, of itself, render the statement inadmissible. He observes that hearsay statements are sometimes relied upon as the primary evidence against a defendant, as this Court’s decisions in K (CA332/2014) v R and Reid v R show.^[5] Mr Carruthers points out that Mr Edward was able to highlight the inconsistencies between the statements and make forceful submissions to the jury about the need for caution before placing significant weight on these untested statements. Any risk of unfair prejudice was also mitigated by the directions the Judge gave in her summing up, including those set out above.

Our assessment

[32] The Supreme Court confirmed in Morgan v R that a previous statement of a hostile witness, which includes a witness who refuses to answer questions or adopt the statement, can be admitted as proof of its contents.^[6] The majority (Blanchard, Tipping, McGrath and Wilson JJ) cautioned that Parliament’s policy decision to make such statements admissible should not be undermined by too ready exclusion under s 8.^[7]
[33] For the reasons set out below, we consider the Judge was correct to admit the prior statements of Mr Moke and Ms Williams into evidence. The statements had high probative value which was not outweighed by the risk of unfair prejudice arising out of the inability to crossexamine. In the circumstances, the inability to promote or contest the accuracy of Mr Moke’s and Ms Williams’ statements through questioning (which affected both the Crown and the defence) was a matter going to the weight that could properly be placed to the evidence and was properly dealt with by judicial direction, not by way of exclusion.
[34] We agree with the Judge’s assessment that the circumstances relating to the statements provided reasonable assurance as to their reliability. Mr Moke and Ms Williams gave their statements to the police independently. In both cases, this was very soon after the events occurred and to which they had both paid close attention. The written statements were signed and initialled on each page. Mr Moke and Ms Williams evidently understood when signing their statements that they could be used as evidence in court and it was an offence to knowingly make a false or misleading statement. Their respective accounts were materially the same in all key respects and were supported by other evidence including Mr Tangiora’s statement to the police and his contemporaneous text messages, particularly those sent shortly after the shooting. According to both accounts, it was Mr Tangiora who engaged them in a threatening manner arising out of the driving incident earlier in the day. Mr Moke and Ms Williams both knew Mr Tangiora well, having known him since he was young. They were both clear that of the four men who had arrived at their house that night, Mr Tangiora was the one doing the talking. Mr Moke and Ms Williams both specifically recalled Mr Tangiora giving the instruction to shoot, using the words “blaze him” or “blaze her”.
[35] This is far removed from a case of the prosecution calling a witness expected to be hostile for the purposes of adducing unreliable evidence of little probative value but considerable prejudicial effect.^[8] As noted, it is accepted the prosecutor had no prior warning that Mr Moke and Ms Williams would refuse to cooperate by answering questions in a meaningful way.
[36] The stance adopted by Mr Moke and Ms Williams at trial meant that they could not be questioned in any meaningful way by the Crown or the defence. Mr Edward highlighted the discrepancies between the statements and emphasised the risk of placing any significant weight on these statements given they had not been tested before the jury. It is highly speculative to suggest that the witnesses would have been prepared to depart from the clear and consistent contemporaneous accounts they gave that Mr Tangiora directed the shooting.
[37] In summary, we consider the Judge was correct not to exclude the statements under s 8 of the Evidence Act. We consider the Judge’s direction to the jury cautioning them about the reliability of Mr Moke’s and Ms Williams’ statements was adequate in the circumstances of this case. There is no indication that a miscarriage of justice has occurred. The appeal must accordingly be dismissed.

Result

[38] The appeal against conviction is dismissed.

Solicitors:
Harry Edward Law, Rotorua for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Tangiora [2018] NZDC 9193.

^[2] R v Tangiora [2018] NZDC 9197.

^[3] R v Tangiora [2018] NZDC 9413.

^[4] At [17].

^[5] K (CA332/2014) v R [2014] NZCA 393; and Reid v R [2015] NZCA 175.

^[6] Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508.

^[7] At [41].

^[8] R v Vagaia [2008] NZHC 2681; [2008] 2 NZLR 516 (HC) at [15].