Two cousins who denied their involvement in an execution-style gang shooting that left a woman with a bullet lodged in her brain and her husband dead have had their appeals heard.
On Thursday, Mesui Tufui appealed his conviction and Fisilau Tapaevalu appealed his sentence of life imprisonment with a minimum of 17 years.
The pair were found guilty by a jury at trial over the murder of Abraham Tu’uheava and the attempted murder of his wife Yolanda.
Tapaevalu appeared via a video link from prison at the Court of Appeal on Thursday in front of Justice Patricia Courtney, Justice Edwin Wylie and Justice Matthew Muir.
The judges reserved their decisions.
In April 2018, Abraham Tu’uheava was lured to Greenwood Rd in Māngere, south Auckland for a potential drug deal.
There, he was shot at least seven times and died within minutes. It was a “miracle” his wife survived after she was shot multiple times in the head, the court heard at trial.
The pairs’ cousin Villiami Tekimasisu Taani, 26, was identified as the shooter and was sentenced to life imprisonment with a minimum of 17 and a half years.
At trial, the Crown’s case was Tufui played a significant part in the shooting and was present before, during and after the incident, armed with a shotgun.
Tufui denied being at Greenwood Rd on the night of the shooting, despite Yolanda Tu’uheava later identifying him in a photo board from her hospital bed.
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On appeal, Tufui’s lawyer Paul Borich QC said the judges should grant his client’s appeal against conviction.
“To overturn a murder conviction would be a big call, but this case requires a big call… Mesui Tufui was not given a fair trial.”
He said the issue was whether the man Yolanda Tu’uheava identified as the “younger guy” was either Tufui or Tapaevalu.
The jury accepted it was Tufui, however Borich said it was Tapaevalu and Yolanda Tu’uheava’s evidence was unreliable as she had misidentified multiple people.
Borich maintained Tufui wasn’t there and was unable to properly mount his defence at trial.
“What we don’t do is stop someone from running their defence,” Borich said.
Borich said a defendant who is implicated by identification evidence should be able to answer it as fully as he’s able to.
Crown prosecutor James Carruthers said Tufui was able to mount his defence properly at trial.
At trial, Tapaevalu’s case was he acted as the driver and the guns were hidden in his shed.
On appeal, Julie-Anne Kincade QC said the minimum period of imprisonment of 17 years imposed on Tapaevalu was manifestly unjust.
She accepted her client was convicted of murder and life imprisonment was the only option, however 17 years was too high.
“He was not a principal, he was not a ring-leader, there was no premeditation and at all significant times he remained in the car,” Kincade said.
”The lack of premeditation in this case is significant.”
In the sentencing, no mention was made of any mitigating factors in relation to Tapaevalu, Kincade said.
“There is the regrettable and far too common history of drug use, alcohol use and socio-economic deprivation and early traumatic events led him to a life with gang members.”
However, Carruthers said there was a sense of urgency here to track down the victims and the driving pursuit added to that.
He said Tapaevalu did play an active role in the offending.
At trial, the court heard the Comanchero Motorcycle Club had given the “green light” for Taani to conduct the shooting after bad blood had formed between the gang and Tu’uheava, a patched member of the Nomads gang.
However at sentencing, Justice Lang made a factual finding that the Crown had not proven beyond reasonable doubt the shooting was planned.
“Unfortunately firearms and serious drug dealing go hand in hand,” Justice Lang said.
Justice Lang said Tufui went to the incident armed with a shotgun and used it to keep the victims under control, knowing Taani was going to execute Tu’uheava.
At the sentencing, Yolanda Tu’uheava said she still thought about the shooting every day. She suffered from PTSD and the physical effects of the bullet still lodged in her brain.
She was in constant pain, attended medical appointments four times a week and could not work because of her injury.