IN THE Court of appeal OF new Zealand
	
CA446/2012
[2013] NZCA 254

BETWEEN	
TERRENCE WHETUMOANA TAHURI
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
10 June 2013	

Court:	
Randerson, Courtney and Dobson JJ	

Counsel:	
R A A Weir for Appellant
J M Jelas for Respondent 	

Judgment:	
24 June 2013 at 10:00am	

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed. 
____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)
[1]	At the conclusion of a jury trial in the High Court at Gisborne on 31 May 2012 before Rodney Hansen J, Mr Tahuri was found guilty of a charge of wounding with intent to cause grievous bodily harm.  On 20 July 2012, Mr Tahuri was sentenced on that conviction to a term of nine and a half years’ imprisonment.  Mr Tahuri appeals both his conviction and the sentence imposed. 
[2]	In February 2011, Mr Tahuri and his partner, Ms Duncan, were living together in a house in suburban Wairoa.  Mr Tahuri and other members of his family were patched members of, or at least had close links with, the Black Power gang.  The occupants of the house next door included a patched member of the Mongrel Mob gang, Mr Ruawai.  
[3]	Between 7am and 8am on 13 February 2011, Mr Ruawai returned home, accompanied by three other Mongrel Mob members, having attended a party at the Mongrel Mob headquarters in Wairoa.  The Crown case was that Messrs Tahuri and Ruawai argued from their respective sides of the fence between the properties.  It said that a vehicle owned by Ms Duncan left Mr Tahuri’s property for a short time, then returned, after which Mr Tahuri appeared in the driveway of their house carrying a shotgun.  Mr Tahuri was observed firing two shots in quick succession towards the neighbouring house, wounding one of Mr Ruawai’s associates, Mr Hubbard.  The doctor who treated him said the wound was consistent with a close-range shotgun blast. 
[4]	Mr Hubbard sustained a serious injury to his right shoulder.  Some 84 shotgun pellets were removed, and surgery, including skin grafts, was required.  The victim was left with on-going pain, it being estimated that up to 100 shotgun pellets could not be removed surgically and remain in his shoulder. 
[5]	Mr Tahuri and Ms Duncan were observed leaving the property shortly after the shooting.  The police subsequently reconstructed text messages from Ms Duncan’s phone, which suggested that the pair had taken refuge in Frasertown, a settlement a short distance from Wairoa.  The content of the text messages suggested that the pair were aware that the police were at the scene of the shooting in Wairoa.  Ms Duncan surrendered herself to the police the following day and Mr Tahuri followed suit the day thereafter.  They both admitted being at the property at the time of the shooting, but denied involvement in it.  
[6]	Ms Duncan was charged with being an accessory after the fact in relation to Mr Tahuri’s offending.  She was also found guilty at trial and has subsequently appealed both her conviction and the sentence imposed on her.  It was intended that her appeals be heard at the same time, but that course was frustrated by Ms Duncan not being available for cross-examination on an affidavit she had sworn in support of her appeal.  Her affidavit conflicted directly with an affidavit from trial counsel, Ms Verry, as to the nature of instructions to counsel.  Accordingly, Ms Duncan’s appeal was adjourned for separate subsequent argument, on the basis that none of the issues to be determined in Mr Tahuri’s appeal would influence the outcome of hers.
Appeal against conviction
[7]	Identification was the only issue at Mr Tahuri’s trial.  The essence of Mr Tahuri’s instructions to counsel was that someone else was responsible for the shooting, but that he would not provide any indication as to who it might have been.  That stance left counsel with little scope for defending the charge on the basis that the shooter was someone else.  Mr Hubbard said that he saw two other men at the back of the property where Mr Tahuri was.  They seemed to be working on a car but he did not pay them much attention.  It was not suggested that these men bore any similarity to Mr Tahuri.
[8]	The Crown case relied on two eye witnesses who identified Mr Tahuri as the shooter (witnesses A and B).  Given the gang connotations raised by the factual context, and the ongoing tensions in Wairoa between the Black Power and Mongrel Mob gangs, unsurprisingly witnesses A and B were only prepared to give evidence if they were granted anonymity.  The Crown applied for anonymity orders in relation to the evidence from both witnesses A and B, and such an order was made at a relatively early pre‑trial stage.  That occurred when counsel other than Ms Verry was acting for Mr Tahuri, and without opposition on his behalf.  
[9]	A number of criticisms of the conduct of trial counsel were raised.  However, given the focus of the grounds for the conviction appeal that were eventually argued by Mr Weir, it is unnecessary to resolve differences in the respective recollections of Mr Tahuri and Ms Verry as to the precise terms of Ms Verry’s instructions. 
[10]	The relevant criticism (implicitly assuming that an anonymity order was appropriate, irrespective of whether it had been opposed or not) was Ms Verry’s failure to pursue a pre-trial challenge to the admissibility of the identification evidence of witnesses A and B.  In particular, Ms Verry failed to challenge admissibility in circumstances where the police had not conducted any formal identification procedure to ensure that the evidence from the witnesses complied with the requirements of s 45 of the Evidence Act 2006 (the Act).  In part, s 45 provides: 
45	Admissibility of visual identification evidence 
(1)	If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2)	If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
[...]
[11]	Thereafter, s 45(3) prescribes the elements required for a formal procedure under the section, and s 45(4) enumerates a non-exhaustive list of good reasons for not following a formal procedure.  
[12]	Ms Verry took the view that the police had good reason under s 45(4)(e) for not following a formal procedure because witnesses A and B had identified the shooter to the police soon afterwards.  
[13]	For the purposes of the appeal, the Crown conceded that Ms Verry was mistaken in her analysis of the application of s 45(4)(e) since the witnesses had simply provided statements to the police identifying Mr Tahuri as the shooter.  They had not actually pointed Mr Tahuri out to the police.  However, Ms Jelas for the Crown submitted that there were other grounds for concluding there was good reason not to conduct a formal procedure.  
[14]	Given that Crown concession, the issue on appeal is whether the evidence of witnesses A and B was admissible and, if not, whether the introduction of that evidence gave rise to a miscarriage of justice. 
[15]	The anonymity orders made in relation to the evidence of witnesses A and B justified reasonable constraints on the cross-examination that could be undertaken in relation to how the witnesses knew Mr Tahuri, and the point from which they observed him at the time of the shooting.  At trial, the Judge resolved with counsel the extent of constraints on cross-examination that were required to protect their anonymity.  The most immediate detail that was not able to be challenged was the precise location from which each witness observed the shooting.  It can also be assumed that, in the context of a voir dire, the Judge would consistently have disallowed any detailed questioning of the context in which those witnesses knew Mr Tahuri, so that cross-examination on that point could not go beyond generalised questions as to the length of time the witness had known the accused.  
[16]	Consistently with that level of protection of the witnesses’ anonymity, defence counsel were provided with redacted versions of the witnesses’ statements, which excluded details relevant to the extent and context of their familiarity with Mr Tahuri.  Mr Weir acknowledged that this justifiable constraint on his access to the full circumstances inhibited his argument on the admissibility of their identification evidence.  
[17]	The trial Judge had unredacted versions of the witness statements of witnesses A and B, and so did we.  In both cases, those witnesses had a thoroughly well-founded basis for recognising Mr Tahuri.  In terms of matching who they observed at the time of the shooting to the person previously known to them as Mr Tahuri, both were unequivocal that they had more than ample opportunity to observe him during the shooting.  
[18]	Because Mr Weir did not have access to the details of how witnesses A and B knew Mr Tahuri, he was not able to compare the present case with the leading decisions on admissibility under s 45 of visual identification evidence that relies on recognition based on prior familiarity with the offender.  The cases he cited were Harney v Police and R v Edmonds.  Nonetheless, Mr Weir submitted that any challenge to admissibility of the identification evidence would inevitably have been dealt with consistently with the approach suggested by the Supreme Court in Harney:
The sufficiency of the familiarity of the witness with the defendant’s appearance and the utility of a formal procedure need to be gauged in the individual case.  In determining the issue of utility of a formal procedure the judge who is ruling on admissibility needs to consider the particular circumstances in which the witness has previously seen the defendant and how, and with what degree of cogency, those prior circumstances demonstrate that the witness had the capacity to identify the defendant with accuracy.  Where there has been extensive past association, that is likely to provide a powerful argument against a formal procedure.  On the other hand, if the prior acquaintance with the defendant’s appearance is slight only, such a procedure will usually have value; the potential weight of the witness’s opinion may not be much greater than that offered by a complete stranger.  There can be, however, no formulaic requirement, such as that the defendant must have been “well” known to the witness.  The degree of prior contact or knowledge of appearance, and its sufficiency, must be assessed in each case taking account of all the circumstances.
[19]	Earlier in its judgment, the Supreme Court approved the approach the Court of Appeal had taken in Edmonds:
We are satisfied that where the visual identification evidence takes the form of a recognition by the eyewitness of someone already known to the witness (whether through personal contact or from photograph or film and whether or not the person is known by name to the witness), that can constitute a further good reason for not following a formal procedure.  That was the position, rightly in our view, taken by the Court of Appeal in R v Edmonds.  As the Court said in that case, endorsing a submission from the Crown, the formal identification procedures in subs (3) are primarily directed towards identification of strangers and the risk factors differ with identifications of persons previously known to the witness.  The Court referred with approval to the Crown’s submission that a formal identification procedure in these circumstances would reduce the real force of the witness’s identification, which derived from its spontaneity, and it would not identify any error in the witness’s recognition.
[20]	The quite different factual contexts in which identifications arose in Harney and in Edmonds illustrate the justification for different outcomes.  In Harney, the identifying witness was a police constable who twice in the space of an hour observed the driver of a motor vehicle passing him.  On the first occasion, the driver was travelling in the opposite direction from the constable.  On the second occasion, the constable was stationary beside an intersection and the driver of the same vehicle made a turn in front of the constable, apparently slowing to possibly 10 or 15 kilometres per hour, giving the constable initially a front-on, and then a side-on, view of the driver “as he rolled around the corner in front of me”.
[21]	The constable recognised the driver on the second occasion as Mr Harney, on the basis of dealings with him on two previous occasions.  The constable’s description of those was:
The first time was possibly seven years ago when there was an incident in Waimate.  The second time was possibly I’m guessing a couple of years later, if not a year, two years later in a hotel.  
[22]	The Supreme Court considered those circumstances of prior observations of the offender by the constable did not establish a good reason for dispensing with a formal procedure.  A more rigorous approach to the evidence was called for, and without it the identification evidence was inadmissible.
[23]	In contrast, in Edmonds, the identifying witness had known Mr Edmonds through relatively regular contact over a number of years, although that was some years before the offending.  The witness also knew Mr Edmonds’ co-offender, Mr Keil, although not so well, and acknowledged a greater familiarity with other members of Mr Keil’s family.  On the night of the offending, the witness had introduced Mr Edmonds to the witness’s wife and there had been discussion between them.  He observed both the offenders after the offending and had a short discussion with Mr Keil after the offending occurred.  
[24]	In those circumstances, the Court of Appeal treated the extent of prior familiarity as sufficient to provide an assurance of reliability of the identification evidence and found that it was a situation in which there was good reason for not conducting a formal procedure. 
[25]	The circumstances and extent of prior contacts between witnesses A and B and Mr Tahuri are much closer to the extent of contact between the witness and the offenders in Edmonds, than the circumstances described in Harney.  
[26]	Had the admissibility of witnesses A and B’s identification evidence been challenged pre‑trial, we are satisfied that no tenable argument could have been raised that the police did not have a good reason for dispensing with the formal procedure under s 45(1).  Greater testing in cross-examination during a voir dire of the bases for recognising Mr Tahuri than was prudently undertaken in their evidence at trial would not have assisted the argument on behalf of Mr Tahuri.
Voice identification evidence
[27]	Mr Weir also criticised the trial Judge for the way in which he dealt with what Mr Weir characterised as voice identification evidence.  In describing the circumstances leading up to the shooting, witness A gave evidence of hearing an argument between persons in the two neighbouring properties.  Witness A was not then observing what was going on.  The witness recognised Mr Ruawai’s voice.  In evidence-in-chief, witness A’s evidence continued:
Q.	Did you hear anyone else’s voice that you recognised?
A.	I thought I heard Terrence’s [Mr Tahuri] voice. 
Q.	What made you think that?
A.	Because of what was said, or what I thought I had heard him say.  And he’s got a distinctive voice, ah, Terrence, when he’s in an angry situation. 
Q.	How would you describe his voice then?
A.	It was quite loud. 
Q.	What did you think you heard, by anyone?
A.	I thought I heard him say come here. 
Q.	Who did you think said that?
A.	Terrence. 
[28]	Mr Weir characterised this as voice identification evidence, which he argued required a discrete warning from the Judge to the jury about the risks of unreliability.  Section 46 of the Act has a specific constraint on admissibility of such evidence, requiring the prosecution to prove on the balance of probabilities that the circumstances in which the voice identification was made have produced “a reliable identification”.  
[29]	On Mr Weir’s analysis, the status of the evidence as voice identification ought to have led the Judge to appreciate the need for a separate warning under s 126 of the Act as to the potential for mistaken identification.  
[30]	The Crown response was that the passage from A’s evidence dealing with this point was not in the nature of voice identification evidence at all.  Rather, the passage was a part of the narrative preceding what was quite independent visual identification evidence that relied on A’s ability to recognise Mr Tahuri from A’s previous familiarity with him.  
[31]	We are satisfied that the Crown’s characterisation of the limited relevance of this particular evidence is correct.  The Crown case did not seek to bolster the quality of the visual identification evidence, by referring to the preceding narrative about witness A’s perception that it was Mr Tahuri’s voice he heard in the initial argument.  It follows that the Judge was not obliged to provide a warning about voice identification evidence under s 126 of the Act.  
[32]	We add that the Judge gave the jury a warning about the risks inherent in visual identification evidence.  This was expressed in conventional terms and is not challenged. 
Other grounds
[33]	The written submissions in support of the conviction appeal also foreshadowed reliance on two additional grounds.  The first was that trial counsel had failed to effectively cross-examine witnesses A and B about the identity of the shooter, and the other was that trial counsel failed to adhere to Mr Tahuri’s instructions to challenge the Crown case that he was a patched member of the Black Power gang.  The written submissions did not amplify the bases for these grounds, indicating that they would be dealt with orally.  Mr Weir acknowledged at the outset of his oral submissions that they were not being pursued.  We are satisfied that that was a responsible course to take.  
Conclusion on conviction appeal 
[34]	We are accordingly satisfied that there is no tenable prospect of a miscarriage of justice having occurred either by virtue of defence counsel’s failure to pursue a challenge to the admissibility of the identification evidence, or because of any inadequacy in dealing with evidence of witness A in relation to what that witness heard in the initial argument. 
[35]	The evidence against Mr Tahuri was strong.  Apart from the clear evidence of witnesses A and B identifying Mr Tahuri as the shooter, there was other circumstantial evidence that bolstered the Crown case.  After the shooting, he and Ms Duncan left the property and went to ground for a time to avoid the police.  After the shooting, in the absence of Mr Tahuri and Ms Duncan, the police conducted a search of their property.  Among the items observed at the time was a cell phone that had been left charging.  The police established that, by the morning after the shooting, the cell phone had been retrieved from the property and was being used again.  The phone had received a series of abusive texts, one of which was addressed to “Terrence”, accusing “Terrence” of having shot the uncle of the person sending the messages.  A further message referred to the intended recipient as being “on the run”.  Later, someone responding to those messages on the cell phone that had been left at the property replied:
ha ha ha I shoot you too.  Ha ha ha scum scum mutt die dog-shit. 
[36]	In the context of the series of messages to the phone left at the property, the Crown invited the inference that this reply had been sent by Mr Tahuri, implicitly acknowledging that the messages received on that phone were intended for him.  The terms were consistent with the sender accepting responsibility for the shooting.  The Judge’s summing up commented that, on the Crown case, it would not make any sense for anyone else to reply to a text which accused him by name of shooting the uncle of the sender of the texts.
[37]	The jury would have been entitled to treat those text messages as circumstantial evidence that substantially bolstered the Crown case against Mr Tahuri.  
[38]	We accordingly dismiss the appeal against conviction.  
Sentence appeal 
[39]	In sentencing Mr Tahuri, Rodney Hansen J treated the offending as falling within band three of R v Taueki, for which a range of nine to 15 years’ imprisonment is provided.  Assessing the aggravating features of the offending, the Judge settled on a starting point of 11 years’ imprisonment.  On the sentence appeal, Mr Weir did not challenge that starting point and we concur that it was appropriate. 
[40]	Mr Tahuri had relatively minor previous convictions that did not justify any increase in the starting point.  The Judge made a number of observations about his relative youth (21 years old at the time of sentencing) and allowed a reduction of 18 months on account of youth and the importance of promoting rehabilitation in younger offenders. 
[41]	Mr Weir submitted that the Judge erred in not allowing a greater discount on account of youth and Mr Tahuri’s previous good character.  
[42]	The discount of 18 months from a starting point of 132 months is some 13.6 per cent.  The Judge’s observations on Mr Tahuri’s circumstances as the offender demonstrate a degree of compassion for his predicament and appropriately acknowledge the importance of promoting rehabilitation.  Those aspects might, in some circumstances, justify a somewhat larger discount than 13.5 per cent.  
[43]	However, any credit for youth and previous good character cannot be assessed in a vacuum.  This was serious offending involving the use of a lethal weapon at close range.  There were overtones of gang tensions and Mr Tahuri had, at the very least, an association with the Black Power gang.  The pre-sentence report indicated that Mr Tahuri denied that he was guilty of the offence, and expressed no remorse for the injuries suffered by the victim.  He took no responsibility for the offending and was assessed as being a high risk of re‑offending.  In addition to that advice to the Court, the sentencing Judge had the opportunity of observing Mr Tahuri throughout his trial and a degree of deference is appropriate for his greater appreciation of the context of the offending and Mr Tahuri’s response to it as gleaned from the trial.  
[44]	Whilst the extent of the discount for youth with any addition for previous good character may be at the low end of an appropriate range, it is by no means out of the range and we are not persuaded that the sentence was manifestly excessive.  
[45]	Accordingly, the appeal against sentence is also dismissed. 

Solicitors: 
Crown Law Office, Wellington for Respondent