Police v Ruaporo [1985] CKHC 1 (1 December 1985)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

POLICE

v

RUAPORO

Counsel: Mitchell for Police
Preed for Defendant

JUDGMENT OF ROPER J.

The accused is charged with the aggravated robbery on the 4^th April 1985 of a Mr MacQuarrie, an 87 year old. It is not disputed that someone robbed Mr MacQuarrie of $650 and beat him savagely in the process with the result that he was admitted to hospital in Rarotonga and subsequently transferred to Auckland Hospital. His condition is such that he was not called as a witness but his deposition was admitted by consent. All he could say as to his first attacker, for it seems he was attacked inside and outside the house, was that he could not identify him but that he was of similar build to a Senior Sergeant Haupini who was one of the crown witnesses. Two men have already been convicted and sentenced for their part in this affair. One Teuira Ngaau was convicted of aggravated robbery after a defended hearing before Dillon J and sentenced to 4 years imprisonment. Teio Pirangi was charged with burglary only and pleaded guilty. He has been sentenced. Neither has anything like the build of Senior Sergeant Haupini while the accused certainly has.

It was not until after he had been convicted and sentenced in October that Ngaau implicated the accused in this affair. The accused was interviewed on the 20^th October when he denied any involvement and claimed that on the night of the 3^rd/4^th April he had stayed at the home of his de facto wife who with her mother and brothers could confirm that he had not left the home. Teio Pirangi is one of his de facto wife's brothers.

The case against the Accused really stands or falls on the evidence of Ngaau. Teio Pirangi was not called as a witness. The Accused, his de facto wife Ruta Pirangi, and her mother Neti Pirangi gave evidence of alibi to the effect that on the night in question, the 3^rd April, the Accused was at home and did not leave the home. Their recollection of the events of a night which one presumes they would not have had to call to mind until the Accused came under suspicion some five months later was rather remarkable.

Ngaau's evidence was that the Accused and Pirangi came to his home about 9.30 p.m. on the 3^rd April when all three repaired to the Betela Meeting house which is on the opposite side of the road to MacQuarrie's driveway. He said that between 11 and 12 p.m. they went to MacQuarrie's house where he and the Accused removed louvers from a window. Ngaau's fingerprints were found on a louver but there were no identifiable prints. He said that Pirangi entered through the window and opened a door for the Accused to enter while he and Ngaau remained outside. Pirangi then came out leaving the Accused in the house. Ngaau said that lights in the house went on and he then heard what he had described as "chairs and noisy" and he and Pirangi left the scene.

The only other prosecution evidence of any real value is that of Miri Miri. He said that between 1 and 2 a.m. on the 4^th April he saw the Accused walking quickly away from the direction of the MacQuarrie driveway but on the other side of the street. He described him as wearing a red tee shirt and black shorts. Mr MacQuarrie was apparently unable to describe his first attackers clothing but Ngaau claimed that on the night in question the Accused had been wearing a red singlet and black shorts.

Both Ngaau and Miri Miri present problems as witnesses. Ngaau is obviously an accomplice and Miri Miri's identification is such that I am required to direct myself in accordance with the case of R v Turnbull because the Accused was not known to Miri Miri before that night and his opportunity to identify was necessarily brief. Miri claimed that he observed the Accused for 10 minutes but if as he said the Accused was walking quickly that timing cannot be right.

As for Ngaau I must warn myself that it is dangerous to convict on his evidence unless it is corroborated by some independent testimony. If it is uncorroborated then it is competent for the Court to convict but only if the testimony is wholly convincing. If one regards the case as one of uncorroborated evidence of an accomplice I would not be prepared to accept Ngaau's evidence as "wholly convincing".

It was not until months after the event that he involved the Accused and an appeal against his conviction and sentence is pending. It cannot be said that he has nothing to gain by now implicating another. Furthermore, his testimony is at odds with that given by Mr MacQuarrie in his deposition. On Mr MacQuarrie's version Ngaau's story that there was a noise in the house and the lights came on while he and Pirangi waited outside cannot be right. MacQuarrie said that he was struck in the house and his attacker fled through the front door. He suffered no serious harm in that assault. He then found that the lights had been turned off at the main switchboard outside the house. He left the house, got a ladder from the garage and switched on the main - returned to the house, switched lights on and went outside again. It seems that it was at that point that the really serious attack occurred although MacQuarrie had no memory of it.

What we are left with is evidence of an unconvincing witness on whose testimony it is dangerous to convict, corroborated, if at all, but at best to a very limited extent, by a witness whose testimony must be treated with caution. That does not add up to proof beyond reasonable doubt that it was the Accused who robbed and caused grievous bodily harm. I find the Accused not guilty and he is discharged.

ROPER J