TANGIORA v R [2019] NZCA 115

TANGIORA v R [2019] NZCA 115 [17 April 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA450/2018[2019] NZCA 115BETWEEN TE AIHURANGI EDWARDS TANGIORAAppellantAND THE QUEENRespondentHearing: 4 April 2019Court: Gilbert, Wylie and Thomas JJCounsel: H S Edward for AppellantJ E L Carruthers for RespondentJudgment: 17 April 2019 at 9 amJUDGMENT OF THE COURTThe 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 woundingwith 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 himabout an incident earlier in the day to which Mr Tangiora had taken exception. After aheated exchange between Mr Tangiora and Mr Moke, Mr Tangiora is said to havedirected the principal offender, who was also wearing his patch, to shoot. Mr Mokewas then shot in the leg.[2] Mr Moke and his partner Diane Williams, who was standing near him atthe 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 shooterbut he gave the order to shoot.[3] At the trial, Mr Moke and Ms Williams persistently refused to answerquestions in any meaningful way and both were eventually declared hostile.Their statements were then produced in evidence through the police officers who tookthem. These statements formed the primary evidence for the prosecution.[4] Mr Tangiora appeals against his conviction. His counsel, Mr Edward, contendsthat the statements should have been excluded under s 8 of the Evidence Act 2006because of the unfair prejudice resulting from his inability to challenge Mr Moke andMs Williams on their statements in cross-examination.The statements[5] Ms Williams spoke to Constable Watson on the night of the shooting, very soonafter it occurred. Ms Williams said that she had known Mr Tangiora since he wassix 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 roadand half in the driveway. She went outside to see who it was. She saw a male withhis patch on back to front walking towards her. She recognised him as beingMr 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 atthe police station. Ms Williams signed the bullet point notes Constable Watson hadmade in his notebook alongside an attestation confirming the truth and accuracy ofthe statement, acknowledging that it was to be used in court proceedings and that it isan offence to make a statement known to be false or misleading. After Ms Williamssigned the notebook, she told Constable Watson that Mr Tangiora "told the other guyto shoot and he didn't actually shoot himself". Constable Watson made a note of thisin his notebook at the time.[6] Ms Williams confirmed her account in a formal written statement she made toDetective McKenzie the following day, adding considerable detail. She said that afterher sister told her that "friends" were outside, she went out through the front door tosee who it was. She saw a man wearing a Mongrel Mob patch but initially could notsee who it was. A car came around the corner and with the assistance of the car lightsshe 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 tofind out what was happening. She said Mr Tangiora then accused Mr Moke of tryingto 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 gavethe order to shoot, saying "blaze her". The shooter, who Ms Williams estimated wasabout two car lengths away from where she and Mr Moke were standing, pointedthe 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 spaceprovided immediately below the statement "I confirm the truth and accuracy of thisstatement. I make the statement with the knowledge that it is to be used in courtproceedings. I am aware that it is an offence to make a statement that is known by meto be false or intended by me to mislead". The statement was witnessed byDetective McKenzie. Ms Williams also signed the diagram she drew at the same timeshowing the location of the cars, the four men and the front door of the house whereshe and Mr Moke were standing.[8] Mr Moke made his statement to Constable Dooley from hospital on 31 January2017. Mr Moke said he had known Mr Tangiora since he was young and had oncesold 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 confirmedthe key aspects of Ms Williams' account. Mr Moke said that on Sunday 29 January2017, around 2 pm, he went for a drive in a car he had purchased that day. He drovepast Mr Tangiora and two others who were standing in front of a fence wearing theirpatches. Mr Tangiora said he drove past them "quite fast" but he remained on the roadand did not "come anywhere near them".[9] Later that night, around 11 pm, Mr Moke said he was alerted by his daughterthat there were some men outside their house. Mr Moke said he went out throughthe front door and saw Mr Tangiora and three other men he did not know. Two ofthe men were standing out on the street next to a white Subaru that was parked acrossthe front of the driveway. Mr Tangiora was standing beside one of two cars belongingto 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 withMr Moke claiming that he had tried to run him over. Ms Williams was standing besidehim outside the front door at the time. Following a heated exchange, Mr Mokechallenged Mr Tangiora to have "a one out, just him and me". Mr Moke said he ranaround to the back of the property to get a metal bar and continued arguing withMr Tangiora when he returned with it. A short time later, Mr Tangiora saidsomething like "blaze him". Mr Moke said the shooter raised his sawn-off shotgunand 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 tothe house, the front door, the cars and the driveway. This diagram is similar to the onedrawn by Ms Williams.Evidence at trial[11] The trial commenced on 9 May 2018 in the District Court at Hamilton withJudge K B F Saunders presiding. Mr Moke was the first witness called bythe prosecution. He gave his evidence by CCTV from the nearby police station.After taking the oath, Mr Moke answered a few preliminary questions about himselfand his family. However, as soon as he was asked about the events of 29 January2017, he made it clear that he would not answer:Q Mr Moke you're here because of something that happened to you onthe 29th of January last year and I'm just going to ask you somequestions 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 sayanything 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 evengonna answer any of your questions. I can't even talk properly, Ihaven't got any teeth.[12] Further questioning yielded similarly uncooperative responses. Followingdiscussions with counsel in the absence of the jury, the Judge endeavoured, withoutsuccess, to secure Mr Moke's cooperation, including by warning him that his conductcould amount to contempt of court. After further discussion with counsel inthe absence of the jury, the Judge granted the Crown's application to declare Mr Mokehostile and permit cross-examination on his statement.1[13] Mr Moke's statement was then placed before him. The prosecutor took himthrough 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 Mokewhether he had written the statement or whether someone else had done so. Mr Mokeresponded: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.1 R v Tangiora [2018] NZDC 9193.[15] Ms Williams was called next, also via CCTV. She was initially cooperativeand answered preliminary questions. However, she said she could not rememberanything 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 bylooking at the statement she made to the police. She answered "maybe". After herstatement was shown to her, she confirmed that she had made the statement and signedit on each page. She was then asked to read the statement to herself. Ms Williamsdeclined 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 wannabe 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'vegotta tell to say that, "I don't wanna say anything. I don't wanna saynothing," and I don't fuckin have to.[18] After further discussions with counsel in the absence of the jury, Ms Williamswas again asked to read her statement to herself, which she did. The prosecutor thenasked whether it refreshed her memory. Ms Williams answered, "no comment".All subsequent questions received the same answer. The jury was again invited toretire. The Judge then granted the Crown's application to declare Ms Williamshostile.2 The prosecutor then took Ms Williams through her statement line-by-line butall questions were answered "no comment". The Judge asked her whether there wasany 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 herinitials appeared on the diagram but when asked whether she drew it, she responded"no comment". Ms Williams confirmed a few basic details shown in photographstaken by the police including that they showed her house, the car that Mr Moke hadpurchased that day and where she and Mr Moke had been standing at the time ofthe incident. However, when she was asked about where Mr Tangiora had beenstanding, she reverted to answering, "no comment". She gave this same answer to allother 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 questionsMr Edward asked were met with the answer "no comment".[20] It is common ground that the Crown had no advanced warning that Mr Mokeor Ms Williams would be hostile witnesses. After conducting a voir dire, the Judgegranted the Crown's application to admit the statements these witnesses had made tothe police.3 In ruling these statements admissible, the Judge was satisfied that2 R v Tangiora [2018] NZDC 9197.3 R v Tangiora [2018] NZDC 9413.the probative value of the evidence was not outweighed by the risk that the evidencewould have an unfairly prejudicial effect on the proceeding.4[21] Constable Dooley produced the statement he took from Mr Moke andthe diagram he prepared. Detective McKenzie produced Ms Williams' statement anddiagram. Constable Watson gave evidence about the statements Ms Williams made tohim on the night of the shooting, summarised at [5] above and recorded in his notebookat the time.[22] Various text messages sent by or to Mr Tangiora's cell phone before and afterthe incident were produced. Mr Tangiora referred to himself as "Prophet" in thesetexts, some of which indicated he was performing an enforcement role inthe Mongrel Mob at the time. For example, on 26 January 2017, Mr Tangiora sent atext 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 amon 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 bkfrom smashn da dudes" and then two minutes later sent another text to the samerecipient 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 trysnif owt ths otha mut[24] These messages were sent prior to the driving incident that seemed to haveprompted Mr Tangiora's visit to Ms Williams' address later that night. At 9.42 pm onthe 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 alsoproduced by the prosecution. At 1.52 am on 30 January 2017, less than three hours4 At [17].after the shooting, Mr Tangiora sent a text in response to an associate's offer of a liftsaying "yah pls I will jump in.boot". Five minutes later, Mr Tangiora sent another textto the same person "I cn feel the feds getn close my bro". At 8.15 pm, Mr Tangiorasent a text to another person about making contact with "somebody who can find outif the dudes done a verse about made,to thefeds" ("Made" is another nameMr 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 notworried about them at all,but another thing about this position,is tht thier getnshutdown,and thts real shit,we aint.allowed to accept any signs of disrespect,ifthey refuse thn we'll move forward and engage until they do,so frowz will havto get at me if he wants to knw anything,but the end of the day,we're MMM.weaint 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 personaround 10.50 pm on 30 January 2017, the day after the shooting:this is all about respect,treason,and making examples brutha.nothingmore,nothing less.fukn waniak stood on my toes and I aint letting thatslide.outlawz got a good history of letting treasonous acts slide.not me,im a fukn mobsta.whoam I if I let slide,2nd thing is,I went bk to reup and noides zooms pastme n the dogs while we was walkn and lookd like he wanted to stunt,now uknw all he does is drive bys being tuff but doesn't actually get out and stunt,soI decided,fuk that,and made a decision to take it to the zone,I told him cme outand be real,get down,one outs like gangstaz are meant to,he sacks it andHim n his bitch start running thier mouth callin me dog#&quot:&nark,fake kunt n evry other dsrespectful word there is!!now take intoconsideration tht iv got a real reptible patch member with me and he dont talk or play games,nextthing 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, weaint kids anymore,shits real.because the pack down wairoa ways heard thtnoidsn them snitched to the feds,theres a hitsquad ready to silence theperpetrators,and because of the position tht imin now,I hold the last say,sothier waitng brutha.yous have to stand down.realshit.il just say that much.iv got heapsof love for you my bro, I truely dothis aint about a bitch or hating,its about respect,treason,and makingexamples.I aint a pezant,im a real mutha fucka,I let shit slide with the lawz fortoo 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 andbitches.ur probably the onli one left whos kept it real.as far as I know,Ivouchedfor u when I seen u stay hard during our operation.all the rest are fake andcowards, [27] After Mr Tangiora was arrested, Detective McKenzie spoke to him atthe Hamilton Police Station. Detective McKenzie said Mr Tangiora told him that heonly gained his patch three months earlier and he was not able to order the shooter todo 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 Williamsgave to the police given that this evidence could not be tested:[13] Because of the position that Mr Moke and Ms Williams took at thistrial, the account they gave to the police in those statements has not beentested. It has not been tested by cross-examination and that is a factor that youneed to have regard to when you come to assess what is said in the statementsand what weight you give to it. It is entirely a matter for you whether youaccept what Mr Moke said to the police is credible and reliable and in the samevein whether you accept what Ms Williams has said. But it is important thatyou have not been placed in a position where you yourselves have seen theiraccount tested and their responses to it and Mr Edward has suggested thatthe statements are unreliable and you should treat what is said with cautionbecause of that very fact. He also said to you that they are not consistentaccounts in any event and you will recall he said that Mr Moke referred togetting the steel bar but nothing said about that by Ms Williams. But, mostimportantly, no chance for the defence to challenge it so the credibility has notbeen tested. Ms Guthrie of course said well do not be perturbed by the factthat they are not entirely consistent accounts because that is what is expectedwhen you have two people who are giving a description from their ownpersonal perspectives.[14] The Crown also says that you can rely on the statements as credibleand reliable because to a large extent the other evidence points to the reliabilityand consistency of them, that is the text messages, the fact that Mr Tangiorawent into hiding, the positions that Ms Williams pointed out the respectiveplayers 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 carefulconsideration to in the context of Mr Moke and Ms Williams refusing to giveyou any assistance in terms of giving evidence in Court. In the context thatMr Moke refused to acknowledge making his statement you must howevertake an initial step. You must first be satisfied that he did in fact make thatstatement 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 partof it should not trouble you. If you are satisfied that Mr Moke and/orMs Williams did make the earlier statements it is a matter for you whether youaccept the statements are reliable because of the position taken by thewitnesses not to comment or to provide a reason why they now took that stanceand of course I do need to tell you that you cannot speculate or guess why theytook that position. If you accept what they said to the police is correct, eitherMr Moke or Ms Williams or both of the, there is evidence that you can use inyour deliberations and you need to consider how far that takes you indetermining the verdict. Finally, even if you are satisfied that both of themmade the earlier statements because the earlier statements are the only directevidence against the defendant you do need I suggest to be cautious bearingin mind the position that they took in finding the charge proven beyondreasonable 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'ssubmissions in his closing address that Mr Tangiora was in no position to orderthe third man to shoot Mr Moke, and this was consistent with both the text messagesand Mr Tangiora's statement to Detective McKenzie following his arrest. The Judgeconcluded 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'shouse that night, no dispute Mr Moke was shot in the knee. The issue for youis whether Mr Tangiora ordered the shooting, was he a party, was he in aposition to do that, did he encourage and incite the shooter.Submissions[30] Mr Edward submits that the prior statements of Mr Moke and Ms Williamsshould have been excluded under s 8 of the Evidence Act because the probative valueof this evidence was outweighed by the unfair prejudice to the defence in not beingable to cross-examine. Mr Edward argues that Mr Tangiora had no opportunity oftesting the reliability of the statements and was therefore denied his rights to offer aneffective defence and examine witnesses called by the prosecution assured by s 25 ofthe New Zealand Bill of Rights Act 1990.[31] Mr Carruthers, for the Crown, submits that the Judge was correct to admitthe statements. The witnesses were plainly hostile. The circumstances in which theirstatements 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 beinferred from his contemporaneous text messages that he was an enforcer for the gangat the time and went into hiding after the incident. Mr Carruthers notes thatthe inability to cross-examine the maker of a statement cannot, of itself, renderthe statement inadmissible. He observes that hearsay statements are sometimes reliedupon as the primary evidence against a defendant, as this Court's decisions inK (CA332/2014) v R and Reid v R show.5 Mr Carruthers points out that Mr Edwardwas able to highlight the inconsistencies between the statements and make forcefulsubmissions to the jury about the need for caution before placing significant weighton these untested statements. Any risk of unfair prejudice was also mitigated bythe 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 ahostile witness, which includes a witness who refuses to answer questions or adoptthe 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 makesuch statements admissible should not be undermined by too ready exclusionunder s 8.7[33] For the reasons set out below, we consider the Judge was correct to admitthe prior statements of Mr Moke and Ms Williams into evidence. The statements hadhigh probative value which was not outweighed by the risk of unfair prejudice arisingout of the inability to cross-examine. In the circumstances, the inability to promote orcontest 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 thatcould properly be placed to the evidence and was properly dealt with by judicialdirection, not by way of exclusion.[34] We agree with the Judge's assessment that the circumstances relating to thestatements provided reasonable assurance as to their reliability. Mr Moke and5 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].Ms Williams gave their statements to the police independently. In both cases, this wasvery 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 andMs Williams evidently understood when signing their statements that they could beused as evidence in court and it was an offence to knowingly make a false ormisleading statement. Their respective accounts were materially the same in all keyrespects and were supported by other evidence including Mr Tangiora's statement tothe police and his contemporaneous text messages, particularly those sent shortly afterthe shooting. According to both accounts, it was Mr Tangiora who engaged them in athreatening manner arising out of the driving incident earlier in the day. Mr Moke andMs 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 Williamsboth 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 expectedto be hostile for the purposes of adducing unreliable evidence of little probative valuebut considerable prejudicial effect.8 As noted, it is accepted the prosecutor had noprior warning that Mr Moke and Ms Williams would refuse to cooperate by answeringquestions in a meaningful way.[36] The stance adopted by Mr Moke and Ms Williams at trial meant that they couldnot be questioned in any meaningful way by the Crown or the defence. Mr Edwardhighlighted the discrepancies between the statements and emphasised the risk ofplacing any significant weight on these statements given they had not been testedbefore the jury. It is highly speculative to suggest that the witnesses would have beenprepared to depart from the clear and consistent contemporaneous accounts they gavethat Mr Tangiora directed the shooting.[37] In summary, we consider the Judge was correct not to exclude the statementsunder s 8 of the Evidence Act. We consider the Judge's direction to the jury cautioning8 R v Vagaia [2008] 2 NZLR 516 (HC) at [15].them about the reliability of Mr Moke's and Ms Williams' statements was adequate inthe circumstances of this case. There is no indication that a miscarriage of justice hasoccurred. The appeal must accordingly be dismissed.Result[38] The appeal against conviction is dismissed.Solicitors:Harry Edward Law, Rotorua for AppellantCrown Law Office, Wellington for Respondent