Adams v The Queen
[2017] NZCA 17
•21 February 2017 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA376/2015 [2017] NZCA 17 |
| BETWEEN | JOHN PATRICK ADAMS |
| AND | THE QUEEN |
| Hearing: | 15 February 2017 |
Court: | Miller, Mallon and Peters JJ |
Counsel: | E J Forster for Appellant |
Judgment: | 21 February 2017 at 3.00 pm |
JUDGMENT OF THE COURT
AAn extension of time to appeal is granted.
BThe appeal is dismissed.
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REASONS OF THE COURT
(Given by Miller J)
John Adams appeals his conviction for the murder of Tamati Tupe on
30 September 2012. He says that he was convicted as a principal but was in fact a party and had a defence of withdrawal which was not put to the jury. For this state of affairs he blames his trial counsel.The narrative at trial was that Mr Tupe’s car had broken down at Otara, out of his neighbourhood, and he went to retrieve it. On the way, he had the misfortune to encounter Mr Adams, apparently at a bus stop on McLennan Road in Mt Wellington. Mr Adams assaulted him violently, placed him in a headlock, and treated him as a trophy, describing himself as the master and Mr Tupe as his bitch. He marched Mr Tupe to an address at Sophia Place where Mr Adams’ associates were. There Mr Tupe was again assaulted by Mr Adams and others. The homeowner ordered them to leave and they took Mr Tupe to a reserve at Hillside Road, where he was again assaulted by Mr Adams and others. This third and final series of assaults included a body slam or charge by Mr Adams that knocked Mr Tupe to the ground as he tried to flee after an acquaintance, Hohepa Adams, intervened and helped him up. Mr Adams then delivered further blows. There is no evidence that Mr Tupe got up again. Mr Adams left the scene, saying nothing to his associates, and went home.
The assaults were grievous, including kicks to Mr Tupe’s head and stomping. There was eyewitness evidence of a powerful kick to the head, and numerous punches by Mr Adams, who is an amateur boxer, at McLennan Road. By the time Mr Tupe arrived at Sophia Place he was already displaying symptoms of a subdural haemorrhage that was exacerbated by subsequent blows and killed him. He was described as dozy, with his head hanging to the side. When he tried to flee Hillside Road he had to be helped up and was having trouble controlling his body. Immediately after the final assault by Mr Adams he was seen to be lying on his back, with his hands shaking in the air, and “snorting”. He could not be roused. There was medical evidence that snoring is a sign of impending death.
Mr Adams stood trial with another person, Joel Lo, who was also found guilty of murder. The Crown’s case was that Mr Adams was a principal and Mr Lo a party or principal. The sentencing remarks of the trial Judge, Fogarty J, leave no doubt that in his opinion it was Mr Adams who killed Mr Tupe.
There was no narrative at the trial that might suggest Mr Adams was a party only, still less that he had withdrawn before fatal blows were struck. On the contrary, the evidence was that he participated until the end, then wandered off home. His defence was want of murderous intent. He did not give evidence but through counsel emphasised his youth — he was 15 at the time — and intoxication, and sought to minimise his role in the assaults while accepting that he had been at Hillside Road and “shoulder-barged” Mr Tupe there. He contended that he then left the scene, leaving Hohepa Adams and others there with Mr Tupe. Counsel sought to show that Hohepa Adams, who claimed he had intervened to save Mr Tupe and who gave evidence of the final assaults, was himself a party and was also protecting others who had also been involved. It was suggested that after the appellant left, Hohepa Adams threw Mr Tupe to the ground and there joined others in kicking him.
The two accused did not run cut-throat defences, but each minimised his own role, to some extent inevitably highlighting that of the other, and this extended in Mr Lo’s case to having one witness confirm that she had told the police she saw Mr Adams supporting Mr Tupe and punching him as they walked away from Sophia Place, with Mr Tupe “waddling like a duck”. For his part, Mr Adams suggested that Mr Lo had been involved in kicking Mr Tupe after his own departure from Hillside Road.
The appeal is advanced on the basis that Mr Adams had given his trial counsel a different account, which was not put, and did not give evidence. It is said that he ought to have been told a defence of withdrawal was available but would require that he go into the witness box. Mr Adams swore two affidavits for the appeal, and counsel, Mr Borich, swore one. Neither was cross-examined before us.
Mr Adams deposes that Mr Tupe had lost consciousness before the body slam at Hillside Road, which he admits, but he says Mr Tupe could still walk and talk until then and got back on his feet after the body slam. He says he left the scene because he realised he was doing wrong so “chose to walk away”. He attributes Mr Tupe’s death to assaults by others after he left.
Mr Adams exhibits a written account that he gave Mr Borich for the trial. It was taken with the assistance of an experienced youth advocate who served as Mr Borich’s junior. It minimised Mr Adams’ role, and counsel made use of it for that purpose, exploiting as he went the reluctance to give evidence of some of the Crown witnesses. In the statement Mr Adams recounts that he “left the scene” at Hillside Road after Mr Tupe, who was “lurching like he was intoxicated”, tried to run and Mr Adams “shoulder barged” him “quite hard” so that he went “flying backwards” and landed on his back.
Mr Adams was still young at trial and we will assume in his favour, the record being silent, that he followed counsel’s advice when making his election. Mr Borich accepts that he did not tell Mr Adams that a defence of withdrawal was available; in his opinion there was no narrative for it. The appeal then rests on three propositions.
The first proposition is that the operative and substantial cause of death was assaults that occurred after Mr Adams left the scene, making him a party only. As noted, the Crown treated Mr Adams strictly as a principal. The Judge summed up accordingly, so the jury must have been satisfied that before leaving the scene Mr Adams struck blows that were a substantial and operative cause of death.
However, there is very little that could be described as new in Mr Adams’ evidence before us and our attention was drawn to nothing that casts doubt on either the conduct of counsel or the jury’s verdict in this regard. Mr Adams does depose that Mr Tupe was unhurt by the body slam and got up afterward, and of course the jury did not hear his evidence about that. But this claim must be set against the other evidence, which indicates that Mr Tupe was in a bad way when he left Sophia Place, and perhaps more importantly, Mr Adams’ own account is inconsistent with the proposition he wants the Court to accept:
(a)he admits delivering a number of punches before arriving at Hillside Road, where he hit Mr Tupe, causing him to drop;
(b)he says that Mr Lo then hit Mr Tupe, who began to snore;
(c)he admits that he then then knocked Mr Tupe down twice, including the body slam, and kicked and punched him;
(d)he admits that Hohepa Adams helped Mr Tupe up and told him to run, that Mr Tupe was “lurching like he was intoxicated”, and that he then shoulder barged Mr Tupe;
(e)he says he then left but his associates remained.
Even if the jury were to accept that others then continued to attack Mr Tupe, there is no credible narrative to show that blows they struck were the cause of his death; put another way, that nothing Mr Adams had already done was a substantial and operative cause. On the contrary, Mr Adams’ account tends strongly to confirm both that injuries likely to have been fatal absent urgent medical intervention had already been inflicted and that, as other witnesses deposed, Mr Adams himself inflicted some of those injuries. It follows that even if departure was an attempt at withdrawal it came too late.[1]
[1]Kumar v R [2016] NZCA 329 at [74].
The second proposition is that after all he had done, Mr Adams might in law withdraw merely by leaving the scene. That is not so. We will assume in his favour that a jury might think that departure sufficiently signalled his withdrawal to his associates, but he also needed to do something “reasonable and sufficient”[2] to undo the effect of his participation which, it will be recalled, included the body slam deployed to stop Mr Tupe’s flight and thereby expose him to the very attack that Mr Adams characterises as fatal. In such circumstances departure alone could not possibly suffice.
[2]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [135].
The third proposition is that Mr Adams was in fact withdrawing when he left the scene. He says he was, but we do not find the claim credible. Nothing in the written account given to counsel supports it. The written account is consistent rather with Mr Borich’s evidence that at no time did Mr Adams claim it was because he wanted to discourage others that he left the scene. He had simply had his fill.
For these reasons we are satisfied that there was no counsel error and no miscarriage of justice. Nothing in the material we have seen made withdrawal a reasonable possibility or suggests that the Crown might have failed to negative it had Mr Adams given evidence.[3] On the contrary, his own account would likely have convicted him.
[3]At [118]–[120].
The appeal is long out of time.[4] There is force in the Crown’s resistance to an extension, but Mr Adams is still young, he deposes that he has moved prison a number of times, and he is socially disadvantaged. We extend time accordingly, but we dismiss the appeal on the merits. We observe that Mr Adams did not appeal the minimum period of 14 years attached to his sentence of life imprisonment.
[4]Time expired on 20 June 2014, and the appeal was not filed until 7 July 2015.
Solicitors:
Crown Law Office, Wellington for Respondent
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