Waa v R

• Jurisdiction: New Zealand
• Judge: Collins J
• Judgment Date: 10 May 2021
• Neutral Citation: [2021] NZCA 172
• Court: Court of Appeal
• Docket Number: CA587/2018
• Date: 10 May 2021

Between

Wuti Wellington Waa

Applicant

and

The Queen

Respondent

[2021] NZCA 172

Court:

Collins, Ellis and Muir JJ

CA587/2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal — application for leave to appeal a conviction for murder entered 31 years ago — whether leave was required to appeal — credibility of evidence given by prison informant — incentives to give false evidence — corroboration of informant evidence — Crimes Act 1961

Counsel:

G H Vear and C A Hardy for Applicant

C A Brook for Respondent

The application for leave to appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Collins J)

Introduction

1 On the evening of 19 December 1988 two men, each armed with a shotgun and wearing balaclavas, entered the owner's premises of the Northcote Motel. Inside the lounge of those premises were the owners Mr and Mrs Bell, and their 23-year-old daughter Ms Bell. The first intruder demanded money from Mr Bell. Ms Bell then attempted to escape but was caught in a corridor by the second of the intruders. At that moment, the first intruder fired a shot in the lounge at Mr Bell. He died soon afterwards. When Mrs Bell approached the first intruder, she was struck on her head with the butt of the gun. The intruders then ransacked through the property and made good their escape, taking a small amount of money, jewellery and a glasses case that belonged to Ms Bell.

2 Mr Cullen and Mr Waa were jointly charged with murdering Mr Bell, causing grievous bodily harm to Mrs Bell and aggravated robbery. They were convicted on all charges in 1990. Now, 31 years later, Mr Waa seeks leave to challenge his conviction for murder.

3 At the time he was charged, the evidence against Mr Cullen comprised the following:

• (a) Mr Cullen made an admission to his partner, Ms Corbett, on 20 December 1989, in which he said that he and Mr Waa had gone to the motel and that while he was out of the room, a shot was fired when Mr Bell “grabbed for the gun” held by Mr Waa.

• (b) The glasses case owned by Ms Bell was found at the property where Mr Cullen was living.

• (c) Mr Cullen made a written statement to the police on 27 January 1989, in which he said he went with a “mate” to the North Shore looking for a place to rob. He said he and his mate took loaded shotguns into the motel and that when he was restraining Ms Bell, he heard a shot discharged in the lounge.

4 By the time of the trial, Mr Cullen's brother, “Doc” Cullen, had also become a witness for the Crown. Doc Cullen said his brother made admissions to him concerning the roles of Mr Cullen and Mr Waa in the attack at the motel.

5 The principal evidence against Mr Waa at the time he was charged comprised the following:

• (a) There was evidence of Mr Waa's association with Mr Cullen and his general opportunity to have been involved in the crimes. He was seen with Mr Cullen at a funeral around midday on 19 December 1988 and they were seen arriving together at a function at Te Papapa about two hours after the attack at the motel.

• (b) A shoe print, formed in blood, was found on a piece of paper in the motel premises. The print was compared with a pair of shoes taken from Mr Waa. The forensic evidence was that the print in the motel must have been made by the right shoe taken from Mr Waa.

• (c) Mr Waa made admissions to the police. On 27 January 1989, police interrogated Mr Waa and obtained admissions from him to the effect that he had shot Mr Bell during a tussle when Mr Bell tried to take Mr Waa's gun.

6 Mr Waa applied to be tried separately from Mr Cullen. That application was dismissed by Thorp J on 12 October 1989. 1

7 In a second pre-trial decision issued on 12 March 1990, Thorp J ruled inadmissible the admissions made by Mr Waa to the police, when he was interrogated on 27 January 1989. 2 Those admissions were held to have been extracted by the police committing multiple breaches of the Judges' Rules and the rights of a suspect in police custody. The police were found to have lied to and misled Mr Waa about the evidence against him, and the consequences which would flow if Mr Waa only admitted to having accidentally shot Mr Bell. The police also prevented Mr Waa from consulting with his lawyer and they refused to honour Mr Waa's right to silence.

8 By the time the trial commenced on 12 March 1990, the Crown had obtained evidence from Witness A, a prisoner who was in Mount Eden Prison during the time Mr Waa was on remand in that prison. The essence of Witness A's evidence was that Mr Waa had admitted to Witness A that he had shot Mr Bell.

9 Witness A had been sentenced to 12 years' imprisonment on 27 October 1989 for importing heroin. His appeal against sentence was initially to be heard before the trial of Mr Cullen and Mr Waa. Witness A's appeal was, however, adjourned to a date after he gave evidence in the trial.

10 In a pre-trial hearing on 8 March 1990, Witness A gave evidence and was briefly cross-examined by Mr Waa's trial counsel, Mr Bungay QC. Thereafter, counsel for both defendants informed Thorp J that there would be no further challenge to the admissibility of Witness A's evidence, but that counsel would submit that little to no weight should be placed upon the incriminatory evidence given by Witness A.

11 At the trial, Witness A said that during the time he and Mr Waa were in Mount Eden Prison, Mr Waa spoke about the events on the night Mr Bell was shot. According to Witness A, Mr Cullen and Mr Waa had planned to abduct Mr Bell to find out where some krugerands (a type of gold coin from South Africa) were supposedly located. Witness A said Mr Waa told him that when he was in the lounge of the motel, Mr Bell moved towards him and that he, Mr Waa, “blew him away”.

12 Witness A was cross-examined during the trial by Mr Bungay about his extensive criminal history, the arrangements concerning the adjournment of his appeal and the occasions he had assisted authorities by providing information supplied to him by defendants. Witness A was questioned by Mr Bungay about the likelihood that he would be giving evidence against another prisoner, Mr Tamihere, in relation to what the latter had told Witness A concerning the murder of Heidi Paakkonen and Sven Hoglin, two Swedish tourists who were thought to have been murdered in the Coromandel area in April 1989. Mr Bungay also asked Witness A if Mr Waa had said he was responsible for the murder of Mr Bush at the Red Fox Tavern, a case that bore some similarity to the murder of Mr Bell, but for which no one had been charged. Witness A said Mr Waa had indeed told him he was responsible for the Red Fox Tavern murder.

13 Mr Waa and Mr Cullen were convicted on 19 March 1990 and sentenced to life imprisonment for the murder of Mr Bell. On 10 April 1990 they were respectively sentenced to concurrent terms of six and a half and five years' imprisonment for aggravated robbery and the attack on Mrs Bell.

14 On 25 October 1990, Mr Waa sought leave to appeal to this Court pursuant to the procedure provided for in s 383 of the Crimes Act 1961. We explain that procedure at [20] to [31]. The notice of appeal/application for leave to appeal was prepared by a barrister and identified two grounds of appeal:

• (a) The trial Judge erred in law by not granting Mr Waa's severance application.

• (b) New unspecified information obtained under the Official Information Act 1982 may have undermined the credibility of Witness A if it had been disclosed before trial.

15 Mr Waa's application was filed about six months out of time and, following what was referred to at the time as an “ex parte procedure”, Mr Waa's appeal/application for leave to appeal was dismissed by this Court on 27 June 1991. 3 No reasons were recorded for this decision.

16 Mr Waa was granted parole in 2002, and in 2003 he became involved in serious offending. Mr Waa was convicted in the Masterton District Court on seven charges of burglary and unlawfully taking a motor vehicle. 4 He was also convicted of possession of a shotgun and ammunition, reckless driving, using a crowbar as a weapon, theft of a vehicle and using a vehicle to assault a police officer. 5 He was recalled to prison and sentenced to four years and 11 months' imprisonment for his 2003 offending. Aside from the brief interlude in 2002 and 2003, Mr Waa has been in custody since his arrest on 27 January 1989 for the murder of Mr Bell.

17 On 26 September 2018, Mr Waa filed an application for leave to appeal against his conviction for the murder of Mr Bell. His notice of appeal contended that:

Three further grounds of appeal have been added since September 2018:

• (a) Witness A's evidence was unreliable and ought not to have been admitted.

• (b) His trial should have been heard separately from that of Mr Cullen.

• (c) The trial Judge's directions concerning Witness A were deficient.

• (d) The trial Judge's directions on joint trials were also deficient.

• (e) The references to the Red Fox Tavern murder were highly prejudicial and inadmissible.

18 In Waa v R, 6 this Court held that it has inherent jurisdiction to revisit its 1991 decision dismissing Mr Waa's application for leave to appeal and directed that the leave application be determined separately from any substantive appeal that might be authorised. That decision was based upon R v Smith, 7 which held this Court's inherent jurisdiction enabled it to revisit decisions that had resulted in appeals being dismissed following the ex parte procedure; a process which had been ruled unlawful by the Privy Council in R v Taito. 8

19 In assessing Mr Waa's leave application, we shall first explain the jurisdiction for appeals under ss 383 and 385 of the Crimes Act, and then examine the grounds of...