WAITOKIA v R [2018] NZCA 198

WAITOKIA v R [2018] NZCA 198 [18 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA19/2018[2018] NZCA 198BETWEEN TANIELA KOTOITOGA DAVEN TIAKOWAITOKIAAppellantAND THE QUEENRespondentHearing: 23 May 2018Court: French, Ellis and Woolford JJCounsel: J-A Kincade and A Shendi for AppellantM J Lillico for RespondentJudgment: 18 June 2018 at 10 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Waitokia was convicted of murder following a jury trial in the High Court.He was sentenced by the trial judge Mander J to life imprisonment and a non-paroleperiod of 11 and a half years' imprisonment.1[2] He now appeals his conviction. The appeal was filed out of time. Althoughthe delay was considerable, there is a reasonable explanation and the Crown does notoppose an extension of time being granted. We so order.Background[3] On 1 August 2015 Mr Waitokia attacked an elderly man by the name ofHarold Richardson with a bottle. The attack took place in Mr Richardson's homewhich Mr Waitokia, who was aged 16, had visited before. Mr Waitokia struckMr Richardson 14 times with the bottle causing grievous and fatal head injuriesincluding a stab wound to his head. Before leaving the house, Mr Waitokia tookelectrical equipment and alcohol. Mr Richardson was found the following day lyingdead on the floor of his lounge.[4] At trial the defence argued Mr Waitokia was only guilty of manslaughter anddid not have the necessary intent required to be guilty of murder.[5] In support of its contention that Mr Waitokia had murderous intent, the Crownrelied on the following evidence:(a) The number and intensity of the blows inflicted.(b) The nature of the injuries suffered by Mr Richardson which it was saidwere typical of a bottle having been applied with great force to thescalp.1 R v Waitokia [2017] NZHC 178.(c) The presence of blood on the edges of the broken glass of the bottleindicating Mr Waitokia had continued to use the bottle after it hadbroken.(d) The presence of Mr Richardson's blood on Mr Waitokia's shoessuggesting he had also kicked him in addition to the assault with thebottle.2(e) Accounts given by various witnesses about Mr Waitokia's conduct bothbefore he went to Mr Richardson's house and afterwards. This includedtestimony from an acquaintance of Mr Waitokia, a Mr Stevenson.[6] Mr Stevenson gave evidence that Mr Waitokia told him that he was "going togo kill Harry, I'm going to go get him". He said Mr Waitokia also talked aboutcracking a safe he thought Mr Richardson had in his house and that he askedMr Stevenson for gloves or socks for his hands. Mr Stevenson further stated that afterreturning from Mr Richardson's house, Mr Waitokia showed him the blood on hisshoes and the stolen items.Grounds of appeal[7] Counsel for Mr Waitokia, Ms Kincade advanced two grounds of appeal.3 Thefirst was that Mander J should have given a reliability warning under s 122 of theEvidence Act 2006 regarding Mr Stevenson's evidence.4 In counsel's submission, thefailure to give a warning was an irregularity that could have led to a miscarriage.[8] The second ground of appeal was that inadmissible evidence was given bythe Crown pathologist Dr Sage.2 The evidence was that the DNA profile obtained provided "extremely strong scientific support"that the blood came from Mr Richardson.3 The appellant's written submissions contained additional grounds of appeal, but only the tworecorded in this judgment were pursued at the hearing.4 In written submissions, it was contended that a warning ought to have been given in relation toanother Crown witness as well. However, at the hearing before us, Ms Kincade confirmed thatthe argument was confined to Mr Stevenson only.Was a reliability warning required under s 122?[9] At trial Mr Waitokia was represented by Mr Eaton QC. In cross-examinationof Mr Stevenson, Mr Eaton challenged the reliability of his evidence including inparticular his account of the words spoken to him by Mr Waitokia. The challenge wasmade primarily on the basis that, like all of Mr Waitokia's associates who gaveevidence, Mr Stevenson was affected by alcohol and synthetic cannabis both at thetime of the events as well as when interviewed by the police. Further it was suggestedthat the witnesses had engaged in an after the fact reconstruction of events rather thanhaving an independent recall of them, being affected by what others were saying andwhat they now knew had happened. In closing, Mr Eaton stressed to the jury that thewitnesses were all young dishonest people whose life was crime and drugs and whoall admitted that they were wasted at the critical times. It was, he submitted, highlydangerous to take their accounts literally.[10] Before the Judge's summing-up, Mr Eaton asked him to give the jury areliability warning under s 122. The Judge declined to do so on the grounds that hedid not consider the giving of a warning was necessary.[11] Section 122 relevantly provides:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is of theopinion that any evidence given in that proceeding that is admissiblemay nevertheless be unreliable, the Judge may warn the jury of theneed for caution in deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(3) In a criminal proceeding tried with a jury, a party may request theJudge to give a warning under subsection (1) but the Judge need notcomply with that request—(a) if the Judge is of the opinion that to do so might unnecessarilyemphasise evidence; or(b) if the Judge is of the opinion that there is any other goodreason not to comply with the request.(4) It is not necessary for a Judge to use a particular form of words ingiving the warning.[12] On appeal, Ms Kincade emphasised that Mr Stevenson's evidence was ofcritical importance. She acknowledged that under s 122 the Judge had a discretion,but submitted that this was a case where the discretion should have been exercised infavour of giving a warning. In support of that contention, she relied on the decisionof this Court in Bruce v R where an inadequate warning led to the conviction beingquashed and a retrial ordered.5[13] Each case must of course turn on its facts and in our view Bruce isdistinguishable. Concerns about the content of the warning in that case were in thevery different context of the trial Judge having refused to admit expert evidence aboutmemory and a complainant who was so intoxicated she could not remember60 per cent of what happened.6[14] In this case, matters which impacted on Mr Stevenson's reliability — such ashis age, his consumption of alcohol and drugs, his vagueness on some detail, variousinconsistencies and assumptions as well as the risk of his recall being contaminatedby what others told him — were all self-evident and highlighted by Mr Eaton both ina strong cross-examination and closing.[15] Even more importantly they were the subject of detailed comment by Mander Jin his summing up. The Judge devoted some 13 paragraphs to Mr Stevenson'sevidence and the criticisms that had been made of it quoting large extractspredominantly from Mr Eaton's cross-examination. The Judge referred to the disputebetween Crown and defence about how accurate and specific Mr Stevenson'srecollection was regarding the words spoken by Mr Waitokia and told the jury thatthey would "need to take care in [their] approach to that evidence because we knowthose witnesses were affected by alcohol and synthetic cannabis". He repeated this ina later passage, directing the jury to "be very mindful, particularly in the context ofwitnesses who are drinking and taking drugs at the time, of how reliable they can be5 Bruce v R [2015] NZCA 332, (2015) 28 CRNZ 150.6 At [24]–[25].as witnesses to accurately recount what was said to them". Later again, the Judgerepeated the points regarding Mr Stevenson's evidence that had been made byMr Eaton in his closing.[16] We are satisfied that in all those circumstances it was not incumbent on theJudge to give a formal warning. This ground of appeal therefore fails.Inadmissible evidence[17] It was part of the defence case that the bottle used was an empty bottle.This was put by Mr Eaton to the Crown pathologist Dr Sage in cross-examination.The notes of evidence record the following exchange.A. So the bottle has to be whole in order to be a viable weapon tocause these blunt force wounds.Q. And do you think an empty bottle could do that?A. It works a lot better if it's full because you've got the extra, you know,700 grams of fluid inside it. If you hit someone hard enough with anempty bottle, yes you can, I've see it done before.Q. But we don't have any evidence of —A. No.Q. — the contents of the liquor being found?A. I mean that, that same question has occurred to me. It means, I thinkthe inference is that if the bottle is empty it has to be applied with alot more vigour than if it is full.Q. But not enough vigour to break immediately?A. A bottle's quite robust. We have done tests in the past and they'requite hard to break.[18] It was common ground on appeal that Dr Sage's evidence about tests beingconducted was inadmissible although for different reasons. Ms Kincade said it wasinadmissible because it was outside Dr Sage's expertise. He is a pathologist not anexpert on glass. Mr Lillico contended the evidence was inadmissible because it wasso generalised as to be "pointless" and hence irrelevant, certainly not substantiallyhelpful.[19] Ms Kincade conceded that no objection was taken at the time by Mr Eaton.However, as she pointed out the absence of an objection does not render inadmissibleevidence admissible. In her submission, it was impossible to judge the weight the jurymay have given the evidence but it was undeniably prejudicial. Further, it wasmentioned in the Crown's closing address but the Judge never told the jury to disregardit.[20] In our view, this ground of appeal also lacks merit. As Mr Lillico submitted,the evidence given by Dr Sage about more force being needed if the bottle was emptywas basic physics. And it was that aspect of his evidence, not tests about therobustness of glass, that was relied upon by the prosecutor in closing. The Crown didnot close on the robustness of bottles and no mention was made of the evidence abouttests. In our view had the Judge raised it in his summing up that would have servedonly to highlight it, to the possible disadvantage of the defence. As it was, the evidencewas of no consequence and nothing was made of it.[21] We are satisfied neither ground of appeal whether viewed individually orcollectively warrants appellate intervention.Outcome[22] The application for an extension of time is granted.[23] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent