Family members who a witness says “viciously” kicked and punched a Kelly’s Tarlton’s employee at the popular Auckland aquarium have all walked away from the attack without being convicted of a crime - with a prosecution blunder playing a part in the outcome.

Initially, three family members were charged over the January 2020 attack.

But Na’Otala Tupuivao was the only one to be formally convicted when an Auckland District Court jury found her guilty in September 2022 of one charge of injuring with reckless disregard.

She had been confronted by the Sea Life Kelly Tarlton’s Aquarium employee in January 2020 when one of her young family members walked out without paying for a photo a photographer had taken of them posing at the aquarium.

In the ensuing attack, the male employee was kicked and punched to the ground under a “rain of blows”, with one alarmed witness saying to her husband: “They’re going to kill him”.

However, Tupuivao maintained she never participated in the attack.

And in a recent Court of Appeal decision, her legal team successfully overturned her 2022 conviction.

They pointed out that police had not followed proper procedure by getting the victim to do a formal visual identification of Tupuivao as an attacker soon after the attack.

That led to the 2022 district court jury being presented inadmissible evidence against Tupuivao that should not have been used, the appeal judges ruled.

That created a risk the trial’s outcome was “affected”, leading the judge to overturn Tupivao’s conviction.

The 2020 attack earlier began when one of Tupuivao’s “younger” family members walked out of the aquarium with the photo print-out.

Kelly Tarlton’s routinely has a commercial photographer onsite to photograph leaving families and give them the opportunity to buy the pictures.

The Kelly Tarlton’s employee then approached Tupuivao to talk about the missing photo.

What was said during the conversation was disputed.

But the judge and jury in the 2022 trial sided with the employee’s version of events.

That involved Tupuivao retrieving the photo and shoving it in the employee’s chest.

“Are you going to f... off now?” she asked him.

“You don’t have to speak to me like that,” the employee replied.

Tupuivao raised her fists and said: “You want me to f... you up”.

Crown prosecutors claimed Tupuivao then landed a punch on the left of the employee’s jaw.

Next, he was set upon by other family members, telling the court he could only remember covering his head under “a rain of punches.

“At one point during the attack he was punched just below the chest,” the appeal judges wrote about the 2022 case presented by prosecutors.

“That took his breath away and he went down to his knees and was kicked to the body and ended up on the ground. Thereafter he was kicked and further punched.”

It was then the witness worried aloud to her husband that Tupuivao’s family group were going to kill the employee.

The witness snapped photos of the family but said two of them - one of whom she said was Tupuivao - came up to her and intimidatingly told her to delete the pictures.

One family has made a 'vicious' attack on an aquarium employee. Photo / Dean Purcell.

Tupuivao had claimed in her defence that she didn’t punch the employee.

Instead, she claimed the employee called her a “bitch” and that led to Tuvipvao’s sister to step in and slap the employee.

The slap was claimed to be punishment for the employee using bad words in front of the family’s elderly grandmother.

The employee then struck Tupuivao’s sister twice with his radio, causing her nose to bleed.

Tupuivao’s sister pleaded guilty to slapping and assaulting the employee but later had her charge discharged without conviction.

However, her son and Tupuivao’s nephew, jumped in and attacked the employee, punching him numerous times to the head and body.

Tupuivao’s nephew admitted his guilt to police, saying he also kicked the defenceless employee while he lay on the concrete as the family group gathered round.

He said he launched the attack after seeing his mother get hit.

However, because he was a youth and he acknowledged his guilt, his assault charge was withdrawn and he instead received “police diversion”.

Subsequently the appeal judges acknowledged that the crux of Tupuivao’s 2022 trial had been whether she was an instigator in the attack on the employee by punching him or whether it was her sister that started the attack.

That meant it was important for police to have followed formal visual identification procedures of her at the time.

In addition to this, Tupuivao’s lawyers claimed the victim was sent court documents on the morning of the trial - two and a half years later.

These contained a photo of Tupuivao marked out as the “defendant”.

That meant there was a danger of “confirmation bias” when the victim was later asked to give evidence and visually identify Tupuivao during the trial, the appeal judges ruled.

The judges subsequently quashed Tupuivao’s conviction and ordered a retrial.

However, Crown prosecutors have confirmed they will not be pursuing a retrial or further charges against Tupuivao.

Ben Leahy is an Auckland-based journalist covering property. He has worked as a journalist for more than a decade in India, Australia and New Zealand.