‘Unlawful’ police photo linking robber’s Asics shoes to CCTV footage of his crime to be looked at by Supreme Court

An “unlawful” police photo which linked a robber to his crime and put him in prison because of the Asics shoes he was wearing will be looked at by New Zealand’s highest court.

The Supreme Court says it will hear an appeal in the name of Mahia Tamiefuna, who was convicted after a court was shown a photograph police took for no lawful reason when he was not committing a crime.

The Court of Appeal has already found the photographic evidence used in his case was “improperly obtained”, but said it was admissible anyway in his judge-alone trial for aggravated robbery.

The Supreme Court, in a decision issued this week, now says it will revisit both the way the photo was obtained and whether it was admissible under the Evidence Act.

Its examination of the case will be restricted to these factors – Tamiefuna has already had partial success in appealing against his sentence in the lower court.

Tamiefuna was sent to prison for four years and 11 months for an aggravated robbery in West Auckland in November 2019.

He was initially jailed without the possibility of parole because of the Three Strikes legislation in force at the time, but that requirement to serve the full sentence was later set aside by the Court of Appeal.

During the robbery, Tamiefuna and an associate entered the house of an elderly man early one morning, threatened him and made off with his $47,000 Hyundai vehicle.

In pursuing the criminals, police relied on CCTV footage of the robbery taken from a neighbouring property and from a petrol station some hours later.

Both sets of footage showed two offenders and a blue Ford Falcon car.

Three days later, police stopped the Ford, driven by an unlicensed driver with “suspicious” property inside.

Tamiefuna was in the passenger seat, and the other occupants all had convictions for property offending.

The car was impounded and police took photographs of Tamiefuna as the occupants were gathering their belongings on the roadside.

The Court of Appeal found that when doing so, police were not in the process of gathering evidence for the offending by Tamiefuna, and there was no lawful reason to take his photograph.

Police were, however, able to cross-reference Tamiefuna’s roadside photograph with footage taken during the robbery and at the petrol station to support their claim he was involved in the crime.

The Court of Appeal was told that in the roadside photo, Tamiefuna was wearing black-and-white Asics shoes which matched those seen on a man in the service station video.

The Supreme Court hearing will focus on Section 30 of the Evidence Act, which deals with evidence that has been “improperly obtained”.

It allows the judge to admit such evidence only after weighing it against other factors, including the seriousness of the charge and whether there were other investigation techniques available that did not breach an accused’s rights.

At the time of his latest sentencing, Tamiefuna had 24 previous convictions, including three for previous aggravated robberies. He first went to prison at the age of 18.

Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of front-line experience as a probation officer.