Ahsin v R
[2014] NZSC 153
•30 October 2014
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IN THE SUPREME COURT OF NEW ZEALAND
SC 96/2012 [2014] NZSC 153
BETWEEN JAMIE NGAHUIA AHSIN
Appellant
AND
THE QUEEN Respondent
SC 73/2013
BETWEEN RAELEEN MATEWAI NOYLE RAMEKA
Appellant
ANDTHE QUEEN Respondent
Hearing: 4 July 2013 and 11 March 2014 Court:
Elias CJ, McGrath, William Young, Glazebrook and Tipping JJ
Counsel:
C W J Stevenson and E A Hall for Ahsin
R M Lithgow QC and E A Hall for Rameka
J C Pike QC (on 11 March 2014), M F Laracy and
J E Mildenhall for RespondentJudgment:
30 October 2014
JUDGMENT OF THE COURT
The appeals are allowed, the appellants’ convictions for murder are quashed and new trials are ordered.
REASONS
Para No. Elias CJ [1] McGrath, Glazebrook and Tipping JJ [45] William Young J [205]
JAMIE NGAHUIA AHSIN v R AND RAELEEN MATEWAI NOYLE RAMEKA v R [2014] NZSC 153 [30 October 2014]
ELIAS CJ
[1] The appellants were convicted after trial of the murder of Paul Kumeroa. The Crown case was that they had either aided or encouraged the principal offender, Clarke McCallum, in an assault with murderous intent or had participated with him in an unlawful common purpose (a plan to assault members of a rival gang) in which killing with murderous intent was known to be a probable consequence. On these alternatives, they were liable as parties under s 66(1)(b) or (c) and s 66(2) of the Crimes Act 1961. I agree with McGrath, Glazebrook and Tipping JJ that the appeal to this Court should be allowed because of inadequacies in the summing up of the trial Judge. On that matter, dispositive of the appeal, I state my reasons shortly because they do not differ in substance from the reasons delivered by McGrath J and because his full description of the summing up makes it unnecessary for me to set it out.
[2] In addition, I address two further grounds of appeal: whether withdrawal by a secondary party is properly treated as a defence; and the need for jury unanimity in a case put on alternative bases under the party provisions contained in s 66 of the Crimes Act. It is strictly unnecessary to determine these points because the appeal is to be allowed on another ground. Since the issues raised are ones of some difficulty, it might be thought that they are better left for a case where it is necessary to decide them. I indicate my position on each briefly because the case must be sent back for retrial where the points are likely to arise again, and because they are matters dealt with in reasons of other members of the Court with which I am not in complete agreement.
Background
[3] Clarke McCallum and Daniel Rippon are members of Black Power. Jamie Ahsin, one of the appellants, was in a relationship with Mr Rippon. The other appellant, Raeleen Rameka, was associated with Black Power and was a friend of Ms Ahsin.
[4] Mr McCallum and Ms Ahsin were involved in an incident at a supermarket in the early afternoon of the day of the fatal assault, which seems to have involved
some intimidation or provocation on the part of people thought to be associated with the Mongrel Mob. Shortly after the incident, after Mr McCallum and Ms Ahsin had left the supermarket, the police (to whom the incident had been reported) stopped a Mitsubishi Galant vehicle driven by Ms Ahsin in which Mr McCallum and Ms Rameka were passengers. On search of the vehicle, no weapons were found but the police noted the presence of a large spanner.
[5] The Crown alleged that at about 8 pm that night Ms Ahsin drove Mr McCallum, Mr Rippon and Ms Rameka to the North Mole, at the mouth of the Whanganui River, flashing the headlights of the Mitsubishi Galant at other vehicles. At the river mouth, the four were said by witnesses to have intimidated the occupants of parked cars, identifying themselves as Black Power adherents and making contemptuous reference to “dog shits” (as Mongrel Mob members are referred to by Black Power), although there is no suggestion that those at the Mole were members of the Mongrel Mob. There was evidence from three witnesses that Mr Rippon threatened violence, while waving a knife.
[6] Later, Ms Ahsin drove the others to a house in Gibbons Crescent they had been at earlier in the day where a party was underway. Ms Rameka accosted a man in a vehicle outside the house and accused him of being a member of the Mongrel Mob who had assaulted her seriously on another occasion. The occupants of the vehicle drove away, but not before Mr McCallum had thrown a spanner at the car, breaking a window. All four were later charged with intentional damage arising out of this incident, although only Mr McCallum was convicted. The jury acquitted Ms Ahsin and Ms Rameka, who had been charged as parties under s 66(2) on the basis of the same common purpose of assaulting or intimidating members of the Mongrel Mob relied on in respect of the charge of murder.
[7] After leaving the party shortly before 10 pm in the Mitsubishi Galant, Mr Kumeroa was seen walking along Cross Street. It was the Crown case that because he was wearing a red hooded sweatshirt and it was suspected that he was associated with the Mongrel Mob (although he was not), the car driven by Ms Ahsin executed a U-turn to stop beside Mr Kumeroa. Some of those in the car, including women, were said by witnesses to have then got out of the car. There was yelling.
When Mr Kumeroa, who was intoxicated, started to get into the back seat of the car, he was pulled and pushed out, including, the Crown claimed, by Ms Rameka (although none of the participants in the assault was able to be identified by witnesses). The men were said to have punched Mr Kumeroa. Witnesses described a woman yelling at the men to get in the car and leave, and words such as “that’s enough”, “let’s go”. The person or persons who shouted out were not identified. Although Mr McCallum went back to the car, the Crown case was that he returned almost immediately to Mr Kumeroa and struck him with a short-handled axe, causing the blows that proved fatal. After Mr Kumeroa fell to the ground, witnesses described the female voice continuing to urge the others to get back into the car and leave. One witness reported that she had said that the police would be coming. Ms Ahsin then was said to have driven the others away.
[8] At the trial, the Crown case was that Mr Rippon and the appellants were parties to the murder of Mr Kumeroa either by reason of their assistance and encouragement of him in the assault at Cross Street or by reason of their participation in a common purpose that evening to intimidate and assault members of the Mongrel Mob, in the carrying out of which purpose killing with murderous intent (intentional killing or an intention to inflict injury likely to cause death while being reckless as to whether death ensued) was known to be a probable consequence. They were said to have had knowledge of the likelihood of recourse to weapons, as demonstrated by the waving of the knife by Mr Rippon at the car park at the river mouth. The Crown case was that the common purpose of the group in intimidating and assaulting those linked with the Mongrel Mob was prompted by the first altercation at the supermarket and was evidenced by the behaviour at the river mouth and in the verbal and physical assault on those in the car outside the party. On the Crown case, it was because of this common purpose that Mr Kumeroa had been accosted and assaulted.
[9] Mr Rippon was said to have assisted in and encouraged the murderous assault by Mr McCallum by participating in the assault on Mr Kumeroa. The two women were also said to have assisted and provided encouragement to Mr McCallum. Ms Ahsin had driven the car to stop it beside Mr Kumeroa, when he was spotted. She was said to have yelled encouragement. Ms Ahsin had also driven the others away
after the fatal assault. Ms Rameka, too, was said to have encouraged the assault by yelling to Mr McCallum at the time of the assault on Mr Kumeroa. It was suggested that she had also assisted Mr McCallum by helping push Mr Kumeroa from the car.
[10] At the trial none of the accused gave evidence. The defence for Ms Rameka was that she was not in the car either at the river mouth (when the knife was produced), or when Mr Kumeroa was assaulted. Her counsel explained the altercation at the party, in which she was involved, as having arisen out of the earlier assault on her by the individual in the car, rather than as part of an enterprise to attack members of the Mongrel Mob more generally (as the Crown case had the common purpose). Ms Ahsin, too, put the Crown to proof of her presence in the car and any knowledge that there were weapons at hand. Her case, as put by her counsel, also entailed denial that there was any common purpose in attacking members of the Mongrel Mob. Rather, it was suggested by her counsel that the four were having a night out drinking and socialising with friends. Defence counsel for the women suggested that the actions of the woman or women who had called to the men to get back into the car indicated that whoever spoke was trying to stop matters going as far. This is the evidential foundation on which the appellants rely for the appeal point they take that the Judge should have raised with the jury the question of withdrawal, both in relation to providing assistance and in relation to any common purpose, and in respect of both women. The Crown submission in response was that the yelling indicated the women were keeping a look out and assisted in getting the group away from the scene after the assault.
[11] The structure of the Judge’s summing up to the jury, which was divided into four parts, is fully described in the reasons of McGrath J. For present purposes, it should be noted that the Judge directed the jury that whether Ms Ahsin had withdrawn her support was relevant to whether she remained a party to a common purpose under s 66(2) but failed to treat it as relevant also to her status as a party under s 66(1) (assistance in the assault with murderous intent), apparently on the basis that her assistance (which included driving up to Mr Kumeroa) could not at that stage be undone. No direction as to withdrawal was given by the Judge in relation to Ms Rameka, either under s 66(1) or (2), apparently on the basis that her counsel had not sought such direction. That may have been because withdrawal was
difficult to run consistently with the defence that the Crown had not proved she was in the car.
[12] All four accused had been charged with intentional damage, arising out of the incident where the spanner was thrown through the window of the car outside the party, as well as murder. Mr McCallum was convicted of both offences. Mr Rippon and the two appellants were acquitted of the intentional damage charge but convicted of murder.
[13] On appeal, the Court of Appeal indicated that if the case against Ms Rameka had relied only on her being a party under s 66(1), it doubted that a conviction based on encouragement at the scene of the attack could have succeeded. The evidence of the witnesses as to what had been shouted out by the woman who got out of the car was equivocal, as was the evidence that the woman in the rear of the car had pushed Mr Kumeroa out when he tried to enter the car.1 The Court considered however that there was evidence upon which the jury could have convicted Ms Rameka under s 66(2).2 As already mentioned, the defence run at trial by Ms Rameka (that she was not in the car at the time of the attack on Mr Kumeroa or at the river mouth) made it difficult to develop the case that she had withdrawn her participation in the common unlawful purpose or from assisting in the attack. Ms Rameka did not raise withdrawal as a ground of appeal before the Court of Appeal.
[14] In the Court of Appeal, it was argued for Ms Ahsin that the Judge should have directed the jury, on the basis of the urgings to “get back in the car”, that it had to exclude withdrawal from participation under s 66(1) as well as s 66(2) (in respect of which the Judge had referred to the evidence relied on for withdrawal). The Court concluded that the evidentiary burden on the accused had not been discharged because the evidence was equivocal and was to be contrasted with Ms Ahsin’s active participation in driving the car, including by driving the other participants away from
the scene.3 It also considered that withdrawal could have been open in relation to
s 66(2) liability on the basis that the jury, to reach s 66(2), must have rejected the
1 Rameka v R [2011] NZCA 75, (2011) 26 CRNZ 1 (O’Regan P, Chambers and Arnold JJ)
at [118].
2 At [134].
3 At [72]–[74].
evidence of encouragement at the scene which would have made Ms Ahsin liable under s 66(1) and considered the common intention was formed earlier and might have been overtaken by a change of heart.4 The Court however thought it doubtful whether withdrawal should have been left to the jury under s 66(2) in any event.5
[15] The reasoning the Court of Appeal was driven to in the case of each of the appellants (which is not entirely easy to reconcile, especially in relation to the different treatment of ambiguity in what was said at Cross Street) indicates the lack of clarity around the different bases of liability and the acts relied on in respect of s 66(1) and (2), not adequately dealt with in the summing up. Where encouragement and assistance is based on the same acts relied on as evidence of participation in an unlawful common intention, so that the basis of liability under s 66(1) and s 66(2) coincides or substantially overlaps, particularity in the directions given may not matter. But where, as here, the acts relied on did not coincide or substantially overlap, greater care was necessary to ensure jury unanimity and to ensure that the issue of withdrawal was correctly addressed. These are the matters to which it is now necessary to turn.
Party liability
[16] Section 66 of the Crimes Act establishes who are parties to an offence:
66 Parties to offences
(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that
4 At [75].
5 At [76].
offence was known to be a probable consequence of the prosecution of the common purpose.
[17] Section 66(1)(b) to (d) and s 66(2) describe accessory liability (an expression that has no legal significance given the terms of s 66 but which it is convenient to use). Whereas under s 66(1), such liability depends on intention to assist in the commission of the offence charged, liability under s 66(2) depends on a common intention to prosecute and assist in any unlawful purpose in which the commission of the offence charged was known to be a probable consequence. Intention to assist, abet, or incite the commission of the offence charged is the state of mind that must be proved for guilt under s 66(1). For guilt under s 66(2), the two states of mind that must be proved are an intention in common with others to prosecute and assist in an unlawful purpose, and knowledge that the crime charged is a probable consequence (in the sense that it was known to be something that might well happen in the
prosecution of the common unlawful purpose).6 The acts giving rise to the liability
are either the forms of assistance contained in s 66(1)(b) to (d) or the acts evidencing adherence to a common unlawful purpose with knowledge that the crime charged is a probable consequence (which in effect is treated by s 66(2) as itself being assistance in the commission of the offence).
[18] “[W]here the nature of the crime charged will admit of such course”, an indictment may charge anyone who is a party (which includes the principal offender under s 66(1)(a)) with having committed the crime.7 Alternatively, a person who is a party may be charged “upon a count alleging how he became a party to it”.8
Section 330 of the Crimes Act provided, at the relevant time, that such an allegation is not objectionable if expressed in terms of the alternatives provided by the legislation, permitting an allegation in a count to cover the alternative provided by
s 66(2) as well as the alternatives within s 66(1).9
6 R v Gush [1980] 2 NZLR 92 (CA) at 94 per Richmond P; and R v Piri [1987] 1 NZLR 66 (CA) at 78–79 per Cooke J.
7 Crimes Act 1961, s 343, which was the applicable section at the relevant time. Section 343 was repealed as of 1 July 2013 by s 6 of the Crimes Amendment Act (No 4) 2011. The procedure for,
and contents of, charging documents is now dictated by Part 2 of the Criminal Procedure Act
2011.
8 Crimes Act, s 343.
9 Crimes Act, s 330. Section 330 was, like s 343, repealed as of 1 July 2013 by s 6 of the Crimes
Amendment Act (No 4) and is now covered by Part 2 of the Criminal Procedure Act.
[19] The indictment in the present case did not take the alternative route of alleging how the accused became parties to it. It simply charged that “Clarke James McCallum, Daniel Craig Rippon, Jamie Ngahuia Ahsin and Raeleen Matewai Noyle Rameka on or about 25 September 2008 at Wanganui did murder Paul Shane Kumeroa”, referring to “[s]ections 167, 172 and 66” of the Crimes Act. I have some doubts whether the nature of the crime charged “admitted of such course” and consider, in any event, that the conduct of the case would have been assisted if the indictment had identified how each of the accused became parties to the offence, in the alternative if necessary, as s 330 permits. Such a course might have given better focus for counsel and the Judge.
[20] I am unable to agree with the view of the majority in this Court that an offence by an accessory party is complete when assistance is given. I consider that the assistance or encouragement must continue at the time of the commission of the offence. Whether earlier-provided assistance or encouragement continues to operate at the time the offence is committed is intensely fact-specific and depends in particular on the nature of the particular assistance or encouragement. Proof of its existence at the time the offence is committed is an element of any offence based on assistance or encouragement and is not dependent on the defence raising an evidential foundation for its consideration.
[21] I doubt that there is room for the “practical view”, suggested in the reasons given by McGrath J at [120], that there must be “evidence of withdrawal” before the jury is asked to consider whether the principal is encouraged or assisted by the accessory party at the time of the commission of the offence. That view depends on treating party liability as complete at the time of the actions relied upon as constituting encouragement or assistance, a position adopted by the majority but which I think to be contrary to the scheme of accessory liability provided for in the Crimes Act. Since the Crown must prove at the time the offence was committed that the party assisted or encouraged the crime, the Crown must exclude the view that any steps taken to remove encouragement or assistance mean that such encouragement or assistance no longer operated at the time the offence was committed. It seems to me wrong to adopt the view that the offence of a party is
complete once some assistance or encouragement is provided, even though liability remains inchoate pending commission of the offence charged.
[22] A party under s 66(1)(b) to (d) or under s 66(2) must know the facts on which the crime is based. Thus, if they were to be parties under s 66(1)(b) or (c) to the murder here alleged, the Crown had to prove that the appellants each assisted or encouraged the assault on Mr Kumeroa in the knowledge that Mr McCallum or Mr Rippon either intended to kill Mr Kumeroa or meant to cause him bodily injury likely to cause death and were reckless as to whether death would ensue. If they were to be parties under s 66(2), it was necessary that the appellants had formed the common purpose relied on by the Crown – to assault and intimidate rival gang members – in the prosecution of which common purpose it was a probable consequence that one of the other members of the group would assault someone with intent to kill or would mean to cause bodily injury likely to cause death, being reckless as to whether death ensued. The question of probable consequence is not one for objective assessment after the event but depends on the actual knowledge of each accused when prosecuting the common intention.
(a) Application of s 66 to the facts
[23] It is impossible not to regard this case with anxiety both because of the generality with which the common intention was identified on the Crown case and because of the general background of association between the accused which opened up a real risk of reasoning to guilt by presence or association if questions of intent and evidence of participation were not carefully considered.
[24] The common intention relied on for liability of the appellants under s 66(2) was very generally drawn as being one to intimidate and assault suspected Mongrel Mob members. It rested on four altercations during the course of a single afternoon and evening. The first altercation at the supermarket was relied on by the Crown as offering a reason for what later happened. There seems to have been some intimidation of Mr McCallum and Ms Ahsin by members of the Mongrel Mob. There was no evidence that either Ms Rameka or Mr Rippon was involved. The Crown case was that the common intention to intimidate and attack members of the
Mongrel Mob was formed after the first incident and in response to it. That means that the evidence of common intention to carry out an unlawful purpose of assaulting members of the Mongrel Mob had to be drawn from the actions of the accused subsequent to the formation of the intent following the first altercation at the supermarket. There were three such episodes only.
[25] The first was much later in the day, around 8 pm, and entailed the intimidation of people on the drive to the North Mole and those in cars parked at the river mouth when Mr Rippon produced a knife. This event was important to the Crown case because it was knowledge of the presence of at least one weapon (although not the weapon used in the fatal assault). The incident was also relied on by the Crown as evidence of the common intention to intimidate or assault on the basis of gang affiliations relied on in the assault on Mr Kumeroa, because those in the car had shouted threats about “dog shits”, although the evidence does not suggest that those intimidated at the river mouth were themselves associated with rival gangs.
[26] The second incident relied upon as evidence of a common purpose to assault members of the Mongrel Mob occurred outside the party attended by all four accused. There Ms Rameka abused someone she identified as a member of the Mongrel Mob who had previously assaulted her. Mr McCallum had thrown a spanner through the window of the vehicle in which the man was sitting as it drove away. That incident was important to the Crown case as indicating preparedness to use violence and as evidence of actions in furtherance of what was said to be the common intention to assault members of the Mongrel Mob. The two appellants and Mr Rippon were acquitted of the charge of intentional damage arising out of this incident, although their alleged liability was based on their adherence to the same unlawful purpose under s 66(2) as was relied on in respect of the charge of murder.
[27] The final incident was the fatal encounter with Mr Kumeroa. That he was accosted as part of the common intention is said to be shown by the fact that the car executed a U-turn to intercept him, apparently on the sole basis that he was wearing red, the colour associated with the Mongrel Mob. Since on the Crown case Ms Ahsin had been driving the car throughout the day and the jury was invited to
conclude that she was driving it at the time of the execution of the U-turn, the targeting of Mr Kumeroa in this way was important evidence on the Crown case of her participation in the unlawful common intention.
[28] A spur of the moment opportunistic attack could have been based on a common intention to commit an assault in which death was a probable consequence formed when Mr Kumeroa was seen walking on the street. (In that respect, I agree with other members of the Court that the decision of the Court of Appeal in Bouavong v R10 was incorrect to suggest that a common purpose to commit the offence charged is not open under s 66(2)). But that is not the basis on which the Crown in the present case relied on s 66(2). And such common purpose would have
substantially overlapped with intentional assistance under s 66(1) and depended on evidence of the actions of the parties at the time of the assault, in respect of which the Court of Appeal indicated that the evidence was such that Ms Rameka could not safely have been convicted. The Crown case under s 66(2) was based on a more developed purpose, evidenced by the earlier incidents. Whether there was a common intention that night to attack Mongrel Mob members in circumstances where death was a probable consequence to the knowledge of the two appellants, was put by the Crown on the background of general gang animosity and the two earlier incidents. Neither was comparable to the assault on Mr Kumeroa. And the second, more violent, incident was potentially explained by personal animosity towards a particular individual, rather than the general purpose in seeking out members of the Mongrel Mob, which was the Crown theory.
[29] Although there was evidence that Mr Kumeroa was accosted (as appears from the evidence that the car executed a U-turn to draw up alongside him, while, on the Crown case, the women shouted abuse at him or encouragement to the men in the car), neither woman otherwise participated in the assault. The events were brief, violent, and confused. The actions of the woman in the back seat (Ms Rameka on the Crown case) in pushing Mr Kumeroa out of the car when he tried to get in were not part of the fatal assault and were consistent with her simply trying to get rid of him after he got in the car. The initial assault by the men did not entail the use of a
weapon, which was obtained after Mr McCallum initially returned to the car. That,
10 Bouavong v R [2013] NZCA 484, [2014] 2 NZLR 23.
according to witnesses, was after the shouts from a woman or women to get back into the car and that what had already taken place was “enough”. While presence may be sufficient to amount to assistance or participation, it may be unsafe to infer assistance or participation from presence in a sudden incident in the absence of a pre-existing understanding. Presence at the time of the crime may be equivocal as to whether it is pursuant to continuing adherence to any previously adopted common purpose in the circumstances.
[30] Although it is suggested in the reasons of the majority that Ms Ahsin’s driving of the car was such critical and immediately proximate assistance that she could not effectively undo it, I wonder how realistic that assessment of the choice available to her is. The characterisation of the evidence of withdrawal as potentially raising a defence, rather than as bearing on liability, is determinative on the approach taken by the majority in respect of Ms Ahsin. It is held that she was unable to discharge the evidential burden necessary to raise the defence because she had put it out of her power to undo the harm she had unleashed by delivering the men to Mr Kumeroa. On the other hand, the majority would hold that the evidential burden of raising a defence of withdrawal is discharged by Ms Rameka because her earlier encouragement had been much more limited than Ms Ahsin’s actions in driving the car.
[31] The appellants were two young women, one in a relationship with a member of Black Power and the other associated with her and the two men. Their evening had been fuelled by alcohol and had contained two incidents (that at the river mouth and that outside the party) in which the men had reacted with a degree of violence, although well short of the murderous attack on Mr Kumeroa. How the circumstances of these young women gang associates, the one said to be driving, the other said to be a back-seat passenger, were properly to be assessed and what inferences as to their adherence to a common intention or the assistance they intended in the murderous assault were properly to be drawn is in my view a matter for the jury in determining liability, not a threshold question for the judge in considering whether to leave a defence to the jury.
(b) The summing up was inadequate
[32] In considering the evidence, the jury should have been carefully instructed in relation to the legal elements necessary for liability. It was critical that the Judge explain the path to the liability of each accused as parties. Under s 66(1), that explanation entailed the necessity of intention to assist in the assault with murderous intent. Under s 66(2), it entailed the necessity of common intention to assault or intimidate with knowledge that it was a probable consequence of the common intention that one of the other members of the group would assault with intent to kill or would mean to cause bodily injury likely to cause death, being reckless as to whether death ensued. It was critical, too, to explain the possible effect of the evidence, if it were accepted by the jury, that one or both of the women had shouted to the men before the fatal assault with the axe, to get back in the car. This evidence was relevant not only to adherence to the common intention under s 66(2), but also to assistance in the assault under s 66(1)(b). And yet the Judge treated the evidence as relevant to participation only in respect of the alleged common intention.
[33] I agree with the criticisms made by McGrath J in his reasons of the summing up and in particular the failure of the Judge to link his directions as to the law and the evidence in a way that was helpful to the jury. In the circumstances of a complex case of party liability, in which liability under s 66(1)(b) and s 66(2) was based on some overlap in the facts but did not entirely coincide, there was a real risk of confusion. There was room too for concern that without careful directions as to the specific basis of liability there is a risk, in a case where the parties are members of a gang, of guilt by association rather than on objective assessment of their individual actions and intentions.
[34] In explaining the application of s 66(2) to the jury, the deficiencies in linking the law and the evidence were compounded by the fact that the Judge failed to direct the jury that it must be satisfied that each accused knew that killing with murderous intent was a probable consequence. This undoubted error was not adequately corrected by the written question trail supplied to the jury by the Judge (which directed consideration of whether each accused knew that “killing” was a probable consequence). Indeed, the reference to a “killing”, without reference to the intent
required for murder contained in the written question trail was itself a deficiency. In any event, I do not think it can be accepted that an error in direction as to a critical element of the offence should be treated as corrected by the question trail.
Direction as to jury unanimity
[35] Where the prosecutor is not able to say whether the person charged acted as a principal or secondary party (as is not uncommon, for example when more than one participates in an assault), the count may be framed on the basis that the accused was either a principal or, at least, a secondary party. The jury in such cases must be unanimous that if the accused was not the principal he was at least a party, but need not be directed it must be unanimous as to the basis of party liability.11
Representative counts, where properly laid,12 fall within a similar latitude.
[36] This approach, in which the basis of liability “is a matter of legal indifference”,13 is not however available where there is a “relevant or material difference in relation to the issues between these alternatives”,14 or where the Crown “nail their colours to a particular mast” (when “their case will, generally, have to be established in the terms in which it is put”).15 When “there is a relevant or material difference as to the issues and therefore the basis on which the jury might convict”,16 as this Court held to be the case in Mason v R17 (where the single charge was based on distinct acts), then the judge must direct the jury that it must be unanimous as to
“the actual issues which are prerequisites to a guilty verdict in the particular
circumstances of the individual case”.18 The reasons for such direction were
11 R v Giannetto [1997] 1 Cr App R 1 (CA); R v Tirnaveanu [2007] EWCA Crim 1239, [2007]
1 WLR 3029; and R v Thatcher [1987] 1 SCR 652.
12 As they are not where material distinctive circumstances apply. See Gamble v R [2012] NZCA
91 at [32]; and R v Qui [2007] NZSC 51, [2008] 1 NZLR 1 at [8].
13 R v Thatcher [1987] 1 SCR 652 at [85] per Dickson CJ.
14 R v Tirnaveanu [2007] EWCA Crim 1239, [2007] 1 WLR 3029 at [46]–[49] per Thomas LJ
giving the judgment of the Court of Appeal.
15 R v Giannetto [1997] 1 Cr App R 1 (CA) at 8–9 per Kennedy LJ giving the judgment of the
Court of Appeal.
16 R v Tirnaveanu [2007] EWCA Crim 1239, [2007] 1 WLR 3029 at [48].
17 Mason v R [2010] NZSC 129, [2011] 1 NZLR 296.
18 R v Leivers [1999] 1 QR 649 (CA) at 662 per Fitzgerald P and Moynihan J.
explained in R v Brown,19 and discussed in the New Zealand Court of Appeal cases of R v Chignell,20 R v Mead,21 Carlos v R22 and King v R.23
[37] In R v Shaw,24 the Court of Appeal, by majority, held that a unanimity direction was required where the Crown proceeded on the basis that the charge of arson was committed by the accused either as principal or at the least as a secondary party based on his incitement of others to commit the crime charged. The Judges in the majority distinguished Giannetto and the other authorities which have held that there is no need for a Brown direction in such cases (because the basis of liability is immaterial in law), on the ground that the incitement relied on in the alternative was
remote in time and place from the commission of the arson.25 I share the tentative
view expressed by other members of this Court that Shaw may have been wrongly decided. But I do not share the view that the approach taken in Giannetto is applicable in the circumstances of this case to the different bases of liability relied on by the Crown here under s 66(1)(b) and s 66(2).
[38] In many cases, the facts giving rise to liability may apply equally to liability under s 66(1)(b) and s 66(2). That will be particularly so in cases where the common purpose relied upon for liability under s 66(2) is commission of the actual offence charged (as, in disagreement with the view taken by the Court in Bouavong and as discussed at para [28], I consider is open). It may also be the case where, in substance, the evidence relied upon as showing assistance with intention to commit the offence charged, on the one hand, and as showing adherence to a common purpose and knowledge of the likelihood that the offence charged will be committed in carrying the purpose out, on the other, is similar enough so that “the alternate
bases of criminal liability do not involve materially different issues or
19 R v Brown (1984) 79 Cr App R 115 (CA).
20 R v Chignell [1991] 2 NZLR 257 (CA).
21 R v Mead [2002] 1 NZLR 594 (CA).
22 Carlos v R [2010] NZCA 248. See also Fermanis v Western Australia [2007] WASCA 84, (2007) 33 WAR 434.
23 King v R [2011] NZCA 664.
24 R v Shaw [2009] NZCA 232, (2009) 24 CRNZ 501.
25 At [94]–[95] and [98] per Heath J and [139]–[141] per Fogarty J. See R v Giannetto [1997]
1 Cr App R 1 (CA) and the other authorities cited in n 11 above.
consequences”.26 The Queensland Court of Appeal in Leivers suggested such similarity might justify departure from the approach taken in Brown.
[39] That might have been the case here had the Crown relied on the evidence of adherence to the suggested common purpose as itself evidence of assistance in the attack with murderous intent on Mr Kumeroa. So, in Leivers, the majority judgment of the Queensland Court of Appeal treated the alternative bases of party liability as immaterial. They were “unpersuaded that on the evidence, there might have been findings which would satisfy the prosecution’s case based on s 7(1)(c) [of the Criminal Code (Qld), equivalent to s 66(1)(b)] but fail to satisfy its case based on s 8
[equivalent to s 66(2)]”.27 That is not however the way the Crown case was put here.
The evidence of assistance relied on for the purposes of s 66(1)(b) liability was limited to the assistance provided when Mr Kumeroa was confronted.
[40] The facts relied on for the Crown case differed according to whether liability was under s 66(1)(b) or s 66(2). It was perfectly possible on the Crown case that the jury might not have been unanimous on the issue of assistance with intention in the murderous attack and might not have been unanimous on the alternative basis of adherence to a common purpose with knowledge that murder was a probable consequence.
[41] The Court of Appeal itself thought that the evidence against Ms Rameka was insufficient to justify conviction under s 66(1)(b) on the basis advanced by the Crown. The evidence it treated as “equivocal” in the case of Ms Rameka was equally equivocal in the case of Ms Ahsin. There was very little direct evidence of the role played by either woman in the attack. The principal difference was that Ms Ahsin was alleged to have driven the car. Even if the jury accepted that Ms Ahsin drove the car, some members of the jury might well have taken the view that it did not amount to intentional assistance with the murderous assault.
[42] It was equally possible for members of the jury to have declined to accept that the appellants had joined a common purpose to intimidate or attack Mongrel
26 R v Leivers [1999] 1 QR 649 (CA) at 662.
27 At 663.
Mob members that night. Its rejection of the charge of intentional damage against both women could well have been on that basis. The evidence of such a common purpose – providing an extended liability with lower mens rea (knowledge of risk rather than intention to assist in a murderous attack) – was based on two earlier episodes which could be explained without acceptance of a wider undertaking within the scope of which the attack on Mr Kumeroa could be brought. Even if of the view that there was a general purpose to attack members of the Mongrel Mob, to which the appellants adhered, the jury may not have been unanimous in the view that they participated with knowledge that an assault with murderous intent was a probable consequence.
[43] This was not a case such as those described in para [35] where the accused were at least guilty on one basis. Each basis depended on different facts which meant that the legal basis of liability under s 66 was not a matter of indifference. In the circumstances of the case presented by the Crown, I am of the view that the Judge should have directed the jury that it had to be unanimous either that the appellants intended to assist in the murderous assault in Cross Street or that they were part of a common purpose to assault and intimidate members of the Mongrel Mob in which the crime of murder was known to be a probable consequence.
Result
[44] In accordance with the opinions delivered the appeals are allowed unanimously in the case of Ms Rameka and by majority in the case of Ms Ahsin. The convictions are quashed and a new trial ordered.
McGRATH, GLAZEBROOK AND TIPPING JJ
(Given by McGrath J)
Table of Contents
Para No Introduction [45] Background [50] The trial [60] The Court of Appeal judgment [69] Section 66(1) of the Crimes Act
The elements of s 66(1)
The trial Judge’s explanation of s 66(1)
Section 66(2) of the Crimes Act
Section 66(2) applies to intended offences
“Known to be a probable consequence” in s 66(2)
The elements of s 66(2)
The trial Judge’s explanation of s 66(2)Withdrawal
[81]
[82] [84] [89] [90] [98] [102] [103] [106]
The trial Judge’s summing up on withdrawal
The parties’ submissions
[107]
[110]
Opportunity for withdrawal [113] Withdrawal within the statutory elements of party liability?
Rationales underlying the withdrawal defence
[114]
[122]
The scope of the withdrawal defence [124] Summary of the withdrawal defence
Ms Ahsin’s appeal on withdrawal
[139]
[143]
Ms Rameka’s appeal on withdrawal [152] Failure to link the law and the evidence
The structure of the trial Judge’s summing up
More connection between the law and facts was required
[160]
[161] [162]
Jury unanimity [170] The parties’ submissions
The requirement of jury unanimity
The legal basis for the verdict The factual basis for the verdict The present case
[171]
[173] [175] [181] [190]
The prosecutor’s closing address [197] Miscarriage of justice [199] Conclusion [204]
Introduction
[45] The appellants, Ms Ahsin and Ms Rameka, along with two other defendants, were convicted by a jury in the High Court of the murder of Paul Kumeroa on
23 September 2008. The Crown case was that Clarke McCallum had assaulted and killed Mr Kumeroa while the appellants and another defendant, Daniel Rippon, were
parties to the offence. They were parties under either s 66(1) of the Crimes Act 1961, having acted for the purpose of aiding or encouraging Mr McCallum to commit murder, or under s 66(2), having formed a common intention to intimidate and assault members or associates of the Mongrel Mob, a murder being a known and probable consequence of prosecuting that common purpose.
[46] The Court of Appeal dismissed the appeals against conviction by the appellants and their co-offenders.28
[47] This Court granted Ms Ahsin leave to appeal on the question of whether the trial judge should have directed the jury on withdrawal, in relation to whether she was a party to murder under s 66(1)(b) of the Crimes Act.29 Her appeal was heard on
4 July 2013. Subsequently, Ms Rameka applied for leave to appeal. The lateness of her application was not her fault. She was granted leave on the question of whether the Court of Appeal was correct to dismiss her appeal.30 Although leave was granted in general terms, the Court indicated it was primarily interested in the following issues:31
(a) Whether the Judge was required to give a unanimity direction in respect of liability under [s] 66(1) and (2) [of the Crimes Act].
(b) Whether the Court of Appeal was correct to conclude that there was insufficient evidence to go to the jury under s 66(1).
(c) If the Court of Appeal was correct in this respect, did a miscarriage of justice result because liability under s 66(1) was left to the jury?
(d) Were the jury given sufficient and adequate directions on withdrawal?
(e) Whether the Judge's direction as to party liability sufficiently differentiated between liability under [s] 66(1) and (2) and as between the two female defendants.
[48] Ms Rameka’s appeal was heard on 11 March 2014 at which time counsel for
Ms Ahsin also appeared and made further submissions. As a result, we have
28 Rameka v R [2011] NZCA 75, (2011) 26 CRNZ 1 (O’Regan P, Chambers and Arnold JJ) [Court
of Appeal judgment].
29 Ahsin v R [2013] NZSC 13.
30 Rameka v R [2013] NZSC 121.
31 At [1].
considered as further grounds in Ms Ahsin’s appeal those on which Ms Rameka was
granted leave to appeal.
[49] In this judgment, after setting out the relevant factual and procedural background, we accordingly consider the following issues in relation to both Ms Ahsin’s and Ms Rameka’s appeals:
(a) the legal elements of party liability under s 66(1) and (2) and the trial
Judge’s discussion of these elements in directing the jury;
(b)the adequacy and sufficiency of the trial Judge’s directions on withdrawal;
(c) the particularity with which the Judge’s directions identified the case
against each appellant and differentiated between s 66(1) and (2); and
(d) the requirement of jury unanimity.
Background
[50] Mr McCallum and Mr Rippon are patched members of the Black Power gang. The appellants are associates of the gang.
[51] Earlier on the day that Mr Kumeroa was fatally injured, the four persons charged were, according to the Crown case, involved in a sequence of events in Whanganui that culminated in the fatal assault. First, shortly before 2 pm, Mr McCallum became involved in an altercation with a member of the Mongrel Mob gang at a local supermarket. Ms Ahsin was with him at the time.32 The police were called but both had left the supermarket by the time the officers arrived.
[52] A short time later, police officers spoke with Mr McCallum and the other occupants of the Mitsubishi Galant car in which he was travelling. They included Ms Ahsin and Ms Rameka. Ms Ahsin told an officer that Mongrel Mob members
had wanted a fight with those in her group at the supermarket. The police searched
32 As to whether Ms Rameka was also present, see below at [197]–[198].
the car, observing a large spanner but no weapons. Later that afternoon, the group visited a house in Gibbons Crescent. By then, they had been joined by Mr Rippon. The appellants and Mr Rippon were seen wearing black items of clothing said by the Crown to mark their allegiance to Black Power.
[53] Secondly, between 8 pm and 9.30 pm that evening, the four defendants were in the Mitsubishi Galant, while it was being driven by Ms Ahsin to the “North Mole”, at the mouth of the Whanganui River. During this journey, the car’s lights were being flashed on and off high beam at a vehicle they were following. At the North Mole, the Mitsubishi Galant was stopped near parked cars. The occupants of the Mitsubishi Galant were heard yelling Black Power slogans. As well, evidence was given that Mr Rippon made threats of violence, while brandishing a knife.
[54] Thirdly, the four persons, still travelling in the Mitsubishi Galant, returned to the house in Gibbons Crescent that they had visited earlier, where a number of people had by this time gathered. There, Ms Rameka had an argument with a person sitting in another car. She accused him of being a Mongrel Mob member who had broken her jaw in a previous incident. As the other vehicle was being driven away with its passengers, Mr McCallum threw a spanner at it, breaking the rear window. The appellants, along with the other defendants, were charged with intentional damage in respect of this incident.
[55] Finally, the group, including both appellants, left the party at about 9.45pm. Ms Ahsin drove the car to Castlecliff, an area of Whanganui considered by Black Power to be its territory. They saw Mr Kumeroa walking along the other side of Cross Street, down which they were travelling. He was wearing a red hooded sweatshirt (hoodie). Red is a colour with which Mongrel Mob members are associated, although Mr Kumeroa had no association with the gang. Ms Ahsin completed a U-turn and stopped the vehicle near Mr Kumeroa. Witnesses heard yelling as the car entered Cross Street and came to a stop; the Crown argued that the voices could be attributed to Ms Ahsin and Ms Rameka. Some of the passengers got out. Mr Kumeroa then tried to get into the back of the car. He was pulled from the vehicle by Mr McCallum, allegedly assisted by Ms Rameka pushing Mr Kumeroa. Mr McCallum, along with Mr Rippon, started punching Mr Kumeroa.
[56] Witnesses at the trial said that they saw women getting in and out of the car at various times. They also gave evidence that they had heard a woman’s voice shouting out to the others, giving different accounts of her words. They included that she had yelled “that’s enough”, “get in the car”, “the police are coming” and “come on, let’s go”. It is not clear from the transcript of evidence whether it was Ms Ahsin or Ms Rameka who was shouting. For the purposes of these appeals we are unable to resolve this question and assume in considering their respective appeals that each of the appellants might have said the words.
[57] Mr McCallum then went back to the car, before returning to the scene of the assault where he pulled from his clothing a short axe and struck Mr Kumeroa twice with it. Mr Kumeroa fell to the ground. Witnesses said the female voice continued to yell out, saying, “get in the car”, “come on, let’s go”, “let’s go, the police are coming” and, “we should go now ’cos the police might come”.
[58] The car was then driven closer to where Mr Kumeroa was. The other defendants got into it, leaving Mr Kumeroa lying on the ground. Mr Kumeroa died from his injuries at Wanganui Hospital on 25 September.
[59] The key events alleged to have taken place on 23 September can be summarised as follows:33
Time Location Participants Events 1.45 pm Countdown supermarket
Victoria Avenue
Mr McCallum
Ms Ahsin
Altercation with member of the Mongrel Mob 2.20 pm Victoria Avenue Mr McCallum
Ms Ahsin
Ms Rameka
Police search the
Mitsubishi Galant
Between
8 pm and
9.30 pm
The “North Mole” Mr McCallum
Mr Rippon Ms Ahsin Ms Rameka
The Mitsubishi Galant is driven with lights on high beam, and the inhabitants of other parked cars are threatened
33 Times are approximate.
Between
8.30 pm and 9.30 pm
Gibbons Crescent Mr McCallum
Mr Rippon Ms Ahsin Ms Rameka
Mr McCallum throws a spanner at another vehicle 9.40 pm Gibbons Crescent and
Cross Street
Mr McCallum
Mr Rippon Ms Ahsin Ms Rameka
The group leaves the party at Gibbons Crescent and drives to Cross Street where the assault on
Mr Kumeroa occurs
The trial
[60] The Crown’s case at the trial was that Mr McCallum was the principal offender with Mr Rippon and the appellants being liable for his murder as parties under s 66 of the Crimes Act. Section 66 states:
66 Parties to offences
(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[61] The Crown’s case in relation to s 66(2) was that the first incident at the supermarket had led to the four defendants forming a common intention with the purpose of intimidating and assaulting people who they believed to be Mongrel Mob members or their associates. This purpose was evidenced by their behaviour while in the car driving to the North Mole and while they were there. The altercation at the party, followed by Mr McCallum throwing a spanner at the departing car, were also indicative of the common intention. These events had culminated with the attack on Mr Kumeroa, who was targeted because his red hoodie indicated to the defendants that he had an association with the Mongrel Mob. The appellants were acting in concert with the other defendants in prosecuting the shared unlawful purpose. The
appellants were aware that the two male defendants had weapons and that killing of a person assaulted was a probable consequence of the prosecution of the common purpose. This made both appellants a party to the murder under s 66(2).
[62] In relation to s 66(1), the Crown alleged that Ms Ahsin had provided assistance and encouragement to Mr McCallum as the driver throughout the day and evening and, in particular, at the time of the attack on Mr Kumeroa. Her assistance at that point included her encouragement of the attack by yelling out while she was driving, completing the U-turn, parking the vehicle near Mr Kumeroa and later moving the car closer to Mr Kumeroa while the attack continued, to facilitate the perpetrators getting away.
[63] The Crown’s case against Ms Rameka in relation to s 66(1) was that she, too, had provided encouragement and assistance to Mr McCallum. In particular, she had encouraged him at the time of the attack by yelling out as the car entered Cross Street and stopped near Mr Kumeroa, and had provided assistance in helping to push Mr Kumeroa back out of the car.
[64] None of the defendants gave evidence at the trial. Each, through their counsel, disputed the evidence identifying them as being present at the attack on the deceased. Ms Rameka’s defence was very much focused on contesting her identification as one of the occupants of the car at the North Mole and later at Cross Street. While she was present at the time when Mr McCallum threw the spanner through the car window, it was argued that this incident was not a manifestation of a common purpose but merely a response on recognising a person she had previously had an altercation with.
[65] Ms Ahsin’s alternative defence, if the jury concluded she was part of the group, was that the events of 23 September were not motivated by gang antipathy. The group’s purpose was not to attack Mongrel Mob associates; rather, it was to spend the day drinking with people they knew. She had no knowledge of weapons carried by others. Ms Ahsin’s actions at the time of the attack - telling people to get back in the car - demonstrated that she did not want to be part of what was
happening nor did she want matters to go further. The words indicated that she had withdrawn from any common purpose to undertake violent activity.
[66] On the Crown case, the shouted words did not indicate withdrawal, but rather constituted actual continuing assistance by Ms Ahsin as a lookout and a person concerned with helping the group to avoid detection and arrest.
[67] In the first part of his summing up to the jury, Dobson J discussed the relevant law, describing the elements of murder, manslaughter and intentional damage, and the law on secondary liability. In the second part of his address, the Judge described the question trail that he later gave to the jury, setting out the matters on which they had to be satisfied beyond reasonable doubt before they could convict the defendants. The third part of the summing up reviewed the Crown and defence cases in relation to each defendant in the following order: Mr McCallum, Mr Rippon, Ms Ahsin and Ms Rameka. The fourth section of the Judge’s summing up directed the jury as to the approach they should take to the evidence and covered matters such as the onus and standard of proof, and warnings in respect of certain evidence, including identification evidence. The final part explained the decision-making process to be followed by the jury.
[68] The jury convicted all four defendants of murder. Mr McCallum was also convicted of the intentional damage charge, on which Mr Rippon and the appellants were acquitted. All appealed to the Court of Appeal against their convictions for murder.
The Court of Appeal judgment
[69] The primary basis of Ms Rameka’s appeal to the Court of Appeal was that the guilty verdict was unreasonable having regard to the evidence.
[70] The Court of Appeal dismissed Ms Rameka’s appeal against conviction. The
Court was satisfied that the evidence that Ms Rameka was in the car at certain times
during the day was an adequate basis for the jury to conclude that she was present when the attack happened.34
[71] In relation to s 66(1), the Court identified the differences in the witnesses’ accounts of Ms Rameka’s conduct at Cross Street.35 None of the witnesses was able to comment on what the yelling female voices were saying other than that there was swearing and, at some point, shouts to get back in the car:36 the evidence was too equivocal to provide a basis for a finding that Ms Rameka was encouraging the others.37 The Court said that, if the case against Ms Rameka had relied entirely on s 66(1), it “would have had real misgivings about a conviction based only on the alleged act of incitement or encouragement at the murder scene”.38 Nor did the Court of Appeal think it was sufficiently clear that it was Ms Rameka who pushed Mr Kumeroa from the car.39 The Court was, however, satisfied that there was sufficient evidence for the jury to convict Ms Rameka under s 66(2).40
[72] Ms Rameka and Ms Ahsin also submitted that the Crown prosecutor had wrongly said in closing that Ms Rameka and Ms Ahsin could be seen in the CCTV footage of the altercation at Countdown. The expert witness on this point had not identified either appellant in his testimony. The Court of Appeal decided that the prosecutor had been wrong to “embellish the Crown case by reference to her own observations” but, given the forceful comments by defence counsel in closing and two directions from the Judge on this point, this did not give rise to any miscarriage
of justice.41
[73] Ms Ahsin appealed on the ground that the Judge should have addressed the jury on whether she had withdrawn from her participation under s 66(1). The Judge had only put to the jury the issue of whether or not the appellants had withdrawn
from the offending in relation to s 66(2).
34 Court of Appeal judgment, above n 28, at [94].
35 At [98]–[115].
36 At [115].
37 At [118].
38 At [118].
39 At [118].
40 At [134].
41 At [42] and [135].
[74] Counsel for Ms Ahsin, who had been her trial counsel, acknowledged that he had not himself advanced that defence, explaining that at the time he had thought that if the jury decided Ms Ahsin had given assistance to the killer by driving the car, doing a U-turn, and pulling up alongside Mr Kumeroa, such assistance could not be withdrawn. On appeal, counsel argued that he was mistaken in this view and that on the evidence Ms Ahsin had been entitled to have the Judge put to the jury whether
she had withdrawn her assistance before the murder took place.42
[75] Counsel for Ms Ahsin also argued that her acquittal on the intentional damage charge indicated that the jury had accepted his submission that there was no common purpose in which she participated so that she must have been convicted as being a party to murder under s 66(1). The absence of a direction on withdrawal from
participation under that provision was accordingly a matter of importance.43
[76] In its judgment, the Court of Appeal did not accept that the acquittal of Ms Ahsin on the intentional damage charge necessarily indicated that the jury had found that she was not part of a common purpose to intimidate and assault persons associated with the Mongrel Mob.44 The jury had probably seen the throwing of the spanner by Mr McCallum as an impulsive act outside of the common purpose.45
[77] The Court accepted that participation in a crime could be withdrawn as long as the act of withdrawal took place before the offence making the party liable occurred. The Court pointed out that a defendant raising withdrawal as a defence to a charge of being a party has an evidentiary burden to put withdrawal in issue.46
Once that burden has been discharged, the Crown has to disprove that withdrawal
had occurred.
[78] In this case, the Court decided that Ms Ahsin had not discharged the evidentiary burden.47 Applying principles stated in R v Pink,48 the Court concluded
42 See [61].
43 See [62].
44 At [63].
45 At [63].
46 At [68].
47 At [72].
48 R v Pink [2001] 2 NZLR 860 (HC). The Pink formulation of the requirements for withdrawal is set out below at [124].
that the shouted exhortation to return to the car did not meet the requirement that unequivocal withdrawal of assistance had been given.49 The Court said:50
This was not a case where the only basis for party liability was verbal encouragement. Given the significant action already taken in driving the car to the scene and manoeuvring it to a position from which the attack could be launched, it required more than the equivocal statement about returning to the car to provide a proper evidential foundation for the issue of withdrawal to be left to the jury. It should be noted that Ms Ahsin also drove the car away after the attack, with the offenders in it. Thus on the argument now put forward she withdrew for the few moments in which the killing occurred, then resumed her assistance immediately thereafter.
Nor had Ms Ahsin taken all steps she could to undo her previous action in driving the car and positioning it to facilitate the attack. Ms Ahsin had also later acted as the getaway driver.51
[79] In holding that the evidentiary burden was not discharged, the Court of Appeal recognised that the Judge had put withdrawal to the jury under s 66(2), based on the same evidence and actions that the Court of Appeal had just found inadequate for the purpose of s 66(1). The Court did not, however, consider this to be
anomalous.52 The Judge may have reasoned that the jury would only be considering
s 66(2) if they had earlier found that the appellant’s acts of assistance and encouragement of a nature required to be a party under s 66(1) had not been proved. On that line of reasoning, the Judge recognised that the jury might conclude that the requisite common intention had been formed some time before the killing took place, but Ms Ahsin had second thoughts prior to the assault and had withdrawn from the common intention. If the jury had decided that her acts of assistance had not been proved, that could give support to such a conclusion. On this reasoning, a direction on withdrawal was therefore necessary under s 66(2) although not on s 66(1). Alternatively, it may have been that the Judge should not have left withdrawal to the
jury in relation to either s 66(1) or (2).
49 Court of Appeal judgment, above n 28, at [72].
50 At [72].
51 At [73].
52 At [75].
[80] The Court of Appeal concluded that, on either view, the Judge was right not to leave withdrawal to the jury under s 66(1).53 The Court also rejected the submission that the guilty verdict for Ms Ahsin was unreasonable on the evidence.54
For these reasons, Ms Ahsin’s appeal against conviction was dismissed. She had been sentenced in the High Court to life imprisonment and had also appealed against imposition of a minimum term of imprisonment of 10 years 6 months. That minimum term was reduced to 10 years by the Court of Appeal, being the statutory minimum. Ms Rameka’s sentence was reduced in the same way.
Section 66(1) of the Crimes Act
[81] Section 66 of the Crimes Act, which provides for party liability, has already been set out above at para [60].
The elements of s 66(1)
[82] For the conviction of a person as a party to an offence under s 66(1)(b), proof is required of an action by that person that aids another to commit the offence. Such action must be deliberately taken, with the intention that the conduct will aid the principal offender in his or her criminal actions, the essential aspects of which must be known to the assisting person. What is essential includes both physical and mental aspects of that person’s conduct, that is, the actions to be taken and the intention with which they are to be done. Section 66(1)(c) and (d) have the same requirements, but with reference to abetting or inciting, and counselling or procuring, rather than to aiding. A particular feature of s 66(1) is that it concerns conduct providing assistance or encouragement that may be complete prior to commission of the crime for which it is provided.
[83] A full explanation of the legal elements of s 66(1)(b) would set out that the
Crown must prove beyond reasonable doubt that:
(a) the offence to which the defendant is alleged to be a party was committed by a principal offender; and
53 At [76].
54 See [137]–[158].
(b)the person alleged to be a party assisted the principal offender in the commission of the crime, by words or conduct or both;55 and
(c) the person alleged to be a party in fact intended to assist the principal offender to commit that particular offence; and
(d)the person alleged to be a party knew both the physical and mental elements of the essential facts of the offence to be committed by the principal offender.
The trial Judge’s explanation of s 66(1)
[84] The role of the trial judge is to inform the jury as to the law that is to be applied, so that the jury is able to apply its findings of fact to the legal requirements for criminal liability and thereby reach its verdict. In this case, the first part of the Judge’s summing up explained to the jury the legal elements of criminal liability under s 66(1). The Judge provided the jury with a question trail which supplemented what he said in the second part of his address.
[85] The first two of the legal elements of s 66(1)(b) set out in para [83] above were outlined fully in both the summing up and in the question trail. The remaining two, however, were not so thoroughly addressed.
[86] The legal requirement that a person act with the intention of assisting or encouraging the principal offender was discussed in summing up but omitted by the Judge from the question trail. This was unfortunate because the jury were entitled to think that by working through the written material provided to them they would have considered all the matters that they were required to decide. If a written question trail is given to the jury they are likely to focus on it in their deliberations rather than on the judge’s oral directions. It is therefore important that the question trail be both accurate and appropriately comprehensive.
[87] In relation to the requirement of knowledge of the essential facts under s 66(1), the Judge’s oral explanation referred only to physical aspects of the
55 See Larkins v Police [1987] 2 NZLR 282 (HC).
offending. He referred to knowledge that there would be an attack on someone associated with the Mongrel Mob using weapons of a type that could inflict the injuries that were ultimately incurred. No direction was given of the requirement of knowledge of the essential mental aspects of the principal offender’s conduct, in particular, his intention or recklessness in carrying out the assault. In his question trail, however, the Judge directed the jury to consider whether those accused as parties knew Mr McCallum intended to kill Mr Kumeroa or to inflict injury likely to cause death, and was reckless as to whether death ensued. The jury, however, would have approached this question without further elaboration.
[88] Overall, we conclude that as a result of these deficiencies, the jury was not given adequate assistance as to the meaning and necessity of the legal elements of party liability under s 66(1).
Section 66(2) of the Crimes Act
[89] Under s 66(2), proof is first required that the defendant formed a common intention with one or more others to prosecute an unlawful purpose and to assist the other(s) in doing that. Each participant in such a common purpose will become liable as a party if one of the others commits an offence while prosecuting the common purpose, whether or not that offence was an intended outcome, as long as that offence was known by the participant to be a probable consequence of the prosecution of that purpose.
Section 66(2) applies to intended offences
[90] An issue that arose in this Court was whether s 66(2) applies where the offence that occurs is an intended offence, such as one which was the very object of the common purpose, or only to offences that were not intended by the party but that were known to be a probable consequence of the joint enterprise. We are satisfied that s 66(2) applies in either context.
[91] In reaching this view, we have considered the Court of Appeal’s recent judgment in Bouavong v R,56 where the Court held that a participant in a common purpose was not liable as a party under s 66(2) where the offence which was committed by another participant, while prosecuting the common purpose, was the intended offence.57
[92] The Court of Appeal found support in the description of joint enterprise liability in the judgment of the Privy Council delivered by Sir Robin Cooke in Chan Wing-Siu v The Queen.58 In that case, the Privy Council explained the
principle of party liability encapsulated in s 66(2) in the following way: 59
… a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert. … The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.
In Bouavong, the Court of Appeal said that it did not see any suggestion in the case law that the “extended form of liability” discussed in Chan Wing-Siu “could apply to the very crime intended to be committed”.60
[93] The Court’s reasoning, however, does not recognise the significance of the inclusion of “necessarily” in the passage from Chan Wing-Siu quoted above (despite using the same word in its own reasoning).61 Common purpose liability is a “wider principle” that is not confined to cases where the intended offence is committed. Nor are intended offences to be excluded from its ambit.
[94] The offence that was intended by the participants falls naturally within the scope of the words in s 66(2): “every offence committed by any one of them … that
… was known to be a probable consequence”. Although there is perhaps some
infelicity in the language, Parliament cannot have contemplated that s 66(2) was
56 Bouavong v R [2013] NZCA 484, [2014] 2 NZLR 23.
57 At [104].
58 Chan Wing-Siu v The Queen [1985] 1 AC 168 (PC) .
59 At 175 (emphasis added).
60 Bouavong, above n 56, at [111].
61 At [81].
confined to offences other than those intended at the time of entry into the common purpose. If that were so, there would be circumstances where participants in a common purpose resulting in the exact crime intended could not be charged under s 66 at all, because assistance or encouragement could not be attributed with certainty to any individual.62 Such participants are at least as culpable as those
involved in a common purpose that results in an unintended but foreseen offence.63
[95] Moreover, as the Court of Appeal in Bouavong acknowledged, its decision was contrary to a longstanding judgment of the Court in The Queen v Currie in which North P said:64
Now, what s 66(2) does is this: if the facts show that two or more persons have formed a common intention to prosecute an unlawful purpose and to assist each other therein, then, in those circumstances, the group of persons so involved may be liable not merely for the crime which was in their immediate contemplation but for other crimes as well, provided the jury is satisfied that the commission of the other offences was a probable consequence of the prosecution of the common purpose. We reject the argument of counsel that the words “to every offence committed by any one of them” exclude the offence which was the immediate object of the formation of the common intention.
[96] For completeness, we add that we do not accept that the passage cited by the Court of Appeal from the judgment of Lord Lane CJ in R v Hyde65 provides any support for the conclusion reached in Bouavong. If anything, the formulation in Hyde is contrary to that conclusion.
[97] For these reasons, with which Elias CJ agrees,66 as well as further reasons given in his judgment by William Young J,67 we do not consider Bouavong correctly states New Zealand law on s 66(2) and prefer the statement set out above from
Currie.
62 Where a person agrees with another to pursue commission of an offence and that very offence is the one committed, a charge of conspiracy will be available. But the penalty for conspiracy may not be adequate in such a situation where the person’s agreement and involvement amounts to formation of and participation in a common purpose. Hence there is practical force in the construction of s 66(2) that we adopt.
63 See Chan Wing-Siu v The Queen, above n 58, at 175: the criminal culpability lies in participating in a criminal venture with foresight that the offence may be committed. There must certainly be
such foresight where the commission of the offence is the very purpose of the venture.
64 The Queen v Currie [1969] NZLR 193 (CA) at 209 per North P.
65 R v Hyde (1991) 92 Cr App R 131 (CA).
66 See the reasons of Elias CJ above at [1] and [28].
67 See the reasons of William Young J below at [239]–[240].
“Known to be a probable consequence” in s 66(2)
[98] In the course of his submissions for Ms Rameka, Mr Lithgow QC was critical of the Judge’s description of the requirement under s 66(2) that the commission of the offence was known by a person said to be a party to be a “probable consequence” of prosecuting the common purpose. In the first part of his summing up, the Judge described this as meaning that commission of the offence “could well happen in the sense that there was a real or substantial risk that it would happen”. Although the question trail used the language of “could well happen”, in explaining the questions to the jury, the trial Judge repeated orally that “could well happen” was intended to be the same standard as “real or substantial risk”.
[99] While accepting that the Judge’s direction on “probable consequence” was an orthodox one, Mr Lithgow argued that it could operate unfairly in the context of general purpose gang associations. He submitted that it would be better for Judges to give directions on s 66(2) using the words of the statute “probable consequence”, only providing elaboration if requested by the jury.
[100] Counsel’s criticism is directed at established law on the requirements of s 66(2). In R v Gush, the Court of Appeal, construing the words “probable consequence” in the provision purposively and in their context, held that they meant an event that could well happen rather than one which is more probable than not.68
In R v Piri, Cooke P reiterated that “the words do not require proof that the accused
thought that the result which in fact eventuated was more likely than not”.69 He added that while no single formula is “preferable or adequate”, the degree of foresight required to be proved may be referred to as “a real risk, a substantial risk, [or] something that might well happen”.70
[101] These decisions have been consistently followed since in New Zealand.71
The Judge’s direction in this case is entirely in accordance with them and the present
case does not require reconsideration of this aspect of the law.
68 R v Gush [1980] 2 NZLR 92 (CA) at 94 per Richmond P.
69 R v Piri [1987] 1 NZLR 66 (CA) at 78.
70 At 79.
71 See, for example, R v Hagen, CA162/02, 4 December 2002; R v Te Pou CA 37/04, 24 August
2004; R v Vaihu [2009] NZCA 111; and Reddy v R [2011] NZCA 184, [2011] 3 NZLR 22.
The elements of s 66(2)
[102] To summarise, in order to establish party liability under s 66(2), the Crown must prove beyond reasonable doubt that:
(a) the offence to which the defendant is alleged to be a party was committed by a principal offender; and
(b)there was a shared understanding or agreement to carry out something that was unlawful; and
(c) the person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal; and
(d)the offence was committed by the principal in the course of pursuing the common purpose; and
(e) the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.
The trial Judge’s explanation of s 66(2)
[103] Both the Judge’s summing up and question trail adequately covered elements (b), (c) and (d) of party liability under s 66(2) as set out above. One deficiency, in treatment of element (e), was that, in explaining the law in the first part of his summing up, the Judge did not refer orally, other than very briefly in passing, to the need for knowledge that the offence was a probable consequence. Rather, the Judge explained that the offence committed must have been a probable consequence, which implies a more objective standard. The question trail, however, directed the jury to consider whether each defendant knew the killing was a probable consequence. But, because there was no oral explanation of this legal requirement,
if or when members of the jury reached and considered this issue in their deliberations, they did so without any assistance as to its meaning or importance.
[104] The Judge’s direction to the jury in relation to element (e) was also deficient in that the summing up and the question trail identified only that it was necessary, in order to be liable for murder as a party under s 66(2), for a defendant to be aware that a “killing” was a probable consequence. This did not specifically identify that what needed to be foreseen (or intended) included both the physical and mental
essential facts of the offence, including murderous intent.72
[105] We therefore conclude that, in relation to s 66(2) too, the jury was not given adequate assistance as to the meaning and necessity of the legal elements of party liability.
Withdrawal
[106] We turn next to the issue of whether the Judge gave the jury sufficient and adequate directions on withdrawal by each appellant.
[263] In short, if an authentic defence of withdrawal had been envisaged, I consider that it would have appeared in pt 4 of the Crimes Act which deals with parties to the commission of offences and includes s 66. Such a defence would not have been a natural fit for pt 3 as all the defences provided for in that part are quite different in character from the proposed withdrawal defence (as already explained).
New Zealand cases as to common law defences specific to particular offences
[264] From time to time New Zealand courts have been confronted with the argument that what is said to be a common law defence specific to particular offences applies, via s 20, to the corresponding statutory offence in the Crimes Act. There are three cases to which I will refer.
[265] The first case concerned the common law principle that a husband and wife could not be found guilty of conspiring with each other and its inconsistency with the definition of conspiracy under s 219 the Crimes Act 1908 which applied to “[e]very one … who conspires with any other person”. In The King v McKechie, Stout CJ saw the application of the common law principle as derogating
unacceptably from the terms of s 219.203 The Chief Justice was in a minority in that
case,204 but his position was ultimately to prevail with the enactment of s 67 of the
Crimes Act 1961.
[266] The second case concerned the question whether absence of gross negligence was a defence to manslaughter for a death resulting from a breach of the duty of care
specified in s 171 of the Crimes Act 1908. In The King v Storey, the Court of Appeal
203 The King v McKechie [1926] NZLR 1 (CA) at 9.
204 The majority consisted of Sim, Reed and Adams JJ. Ostler J also dissented.
held that s 40 of the 1908 Act, corresponding to s 20 of the 1961 Act, could not be relied on, so as to import the common law defence of absence of gross negligence into the statutory offence of manslaughter.205 Myers CJ explained why:206
Section 40 is contained in Part III of the Act, under the title of “Matters of Justification or Excuse.” Section 171 is not in Part III, but in a later Part of the Act, under the title “Duties tending to the Preservation of Life.” Assuming the common law to be as [counsel for the appellant] contends, his argument is answered by s. 171, which supersedes the common law.
[267] The third case is R v Cargill, in which the Court of Appeal concluded that s 20 did not permit a claim of right defence in respect of the statutory offence of extortion.207 The offence was defined in a way which did not provide for such a
defence.
[268] The common law arguments which were relied on in the three New Zealand cases just discussed all involved the contention that the statutory provisions imposing liability should be supplemented by common law principles. Thus in McKechie, the successful argument was that the definition of the offence of conspiracy should be varied so as to exclude agreements solely between husband and wife. In Storey, the argument was that the sections in the Crimes Act imposing duties (or perhaps the definition of manslaughter) should be varied so as to make conviction for manslaughter possible only where there was gross negligence. And in Cargill, the substance of the appellant’s argument was that the definition of the offence of extortion should be supplemented by a requirement to prove that the defendant acted without claim of right (at least where the point was properly raised). That these were simply arguments as to the definition of the relevant offences is perfectly obvious in respect of the first two examples and is at least true in substance
in respect of the third.208
[269] It seems to me that where the Crimes Act defines the circumstances that attract a particular form of culpability, supplementation of that definition by
205 The King v Storey [1931] NZLR 417 (CA).
206 At 436.
207 R v Cargill [1995] 3 NZLR 263 (CA).
208 The defence relied on by Cargill might arguably have been authentic in the sense that perhaps it was for the defendant to raise it. But it is more plausible to treat the defendant’s argument as coming down to the proposition that just as absence of claim of right is an element of the offence of theft, so too should it be in respect of extortion.
reference to a defence which is specific to that form of liability is inconsistent with the concluding words of s 20, which preclude resort to common law principles if “they are altered by or are inconsistent with this Act or any other enactment”.
The authorities as to withdrawal
[270] There are a great many cases which could be discussed but in the interests of proportionality I will confine myself to those relied on or cited by the majority.
[271] In R v Pink, Hammond J reviewed the authorities as to withdrawal.209 In his application of the law to the facts he did not distinguish between s 66(1) and s 66(2) and he expressly did not attempt “to resolve the jurisprudential debate as to the basis of [the] ‘defence’”.210 I therefore see his judgment as inconclusive as to the nature of the defence.
[272] Most of the relevant cases involved common purpose liability under s 66(2). Rex v Whitehouse, a Canadian case referred to by the majority and which is often cited in this context, was a common purpose case.211 There is nothing in the judgment of Sloan JA to suggest that he saw withdrawal as an authentic defence. Indeed, it is perfectly clear that he did not consider that there might be a different elements of the offence defence sitting alongside the defence which he was prepared to recognise.212 The dissenting judgment of Wilson J in R v Kirkness, also relied on by the majority, is to a similar effect because she saw the elements of the defence of withdrawal as restricting what might otherwise have been the ability of a s 66(2) party to deny that the substantive offence was committed in the prosecution of a still current common purpose.213 Broadly similar is R v Becerra, also cited by the
majority.214
209 R v Pink [2001] 2 NZLR 860 (HC) at [14]–[22].
210 At [21].
211 Rex v Whitehouse [1941] 1 DLR 683 (BCCA) at 685.
212 The question arose in an unusual way. In issue was whether two Crown witnesses should have been treated as accomplices for the purposes of the requirement for a corroboration warning. They had embarked on a robbery with the defendant but had not participated directly in the
resulting murder. The trial Judge took the view that they had withdrawn and were thus no longer
parties to the unlawful common purpose at the time of the murder. The defence of withdrawal recognised by Sloan JA was more limited and, on the basis of it, they were parties to the principal’s offending and there should thus have been a corroboration warning.
213 R v Kirkness [1990] 3 SCR 74.
214 R v Becerra (1975) 62 Cr App R 212 (CA).
[273] Read in context, these (and other like) judgments must proceed on the basis that the restrictive approach which they adopt to withdrawal in the context of common purpose liability reflects the substantive law as to when a particular offence will be held to have been committed in the prosecution of an extant common purpose. They are thus best analysed as supporting my elements of the offence approach.
[274] What makes the common purpose cases a little difficult to analyse is that the judges were not explicit as to the basis of their decisions. I should note, however, that there are a number of common purposes cases where courts have referred to the view that in a common purpose case, a defence of withdrawal may simply be a denial that the elements of party liability have been made out. Thus in R v O’Flaherty, a case cited by the majority, it was suggested that the issue of withdrawal “may be no more than a consideration of the scope of the joint
enterprise”.215
[275] I turn now to look at the authorities which are more referable to s 66(1)(b). [276] R v Whitefield might, at first sight, be thought to provide some support for the
majority’s approach.216 Whitefield had told an associate, Gallagher, that the flat next door to him was unoccupied. Whitefield and Gallagher formed a plan to use Whitefield’s flat to facilitate the burglary of the other flat. Whitefield subsequently told Gallagher that he did not want to be involved but, despite this, Gallagher and another person went ahead and burgled the flat anyway. Whitefield knew that the burglary was going to take place on a particular night and heard it happen that night but did nothing to stop it. The trial Judge said that withdrawal was not a defence. The Court of Appeal disagreed and allowed the appeal.
[277] In my view, Whitefield had provided assistance to Gallagher with a view to facilitating the burglary when he told him that the flat was unoccupied and was thus ripe for burgling. So I consider that he would have been liable under s 66(1)(b). On
that basis, the case might be thought to suggest that withdrawal can amount to an
215 R v O’Flaherty [2004] EWCA Crim 526, [2004] 2 Cr App R 20 at [63].
216 R v Whitefield (1984) 79 Cr App R 36 (CA).
authentic defence. That, however, is not the basis upon which the Court of Appeal decided the case. The possibility that Whitefield was an aider, and thus liable under s 66(1)(b), was overlooked. Rather the Court considered that Whitefield’s potential liability as a party was based upon him having counselled Gallagher to commit the burglary, a counselling which he could withdraw by notice to the effect that if
Gallagher went ahead it would be without his aid or assistance.217
[278] In White v Ridley, the defendant had sent cannabis to himself from overseas.218 On his arrival in Australia, the customs authorities expressed some interest in the consignment note, which he had in his possession. He then tried to have the shipment cancelled but was unsuccessful. The package arrived in Australia and was opened by customs and he was later found guilty of importing cannabis. There were five different judgments in the case. Although the case turned on offending by an innocent agent (being the airline which carried the package), party
liability principles were seen as being relevant by analogy. I accept that the judgment of Gibbs J provides some support for the view that withdrawal operates as an authentic defence, albeit that again this was on a restrictive basis. In other words, the defence recognised by Gibbs J was narrower than the simple elements of the
offence on which the appellant relied.219 On the other hand, the judgments of
Stephen, Aickin and Jacobs JJ simply looked at the case in terms of the elements of the offence and therefore focused on causation (in the case of Stephen and Aickin JJ) and mens rea (in the case of Jacobs J). The fifth judge, Murphy J, based his judgment on deficiencies in the case stated. What is significant about the case from my point of view is that a majority of the judges proceeded on bases which are closely akin to my elements of the offence approach.
[279] Also mentioned by the majority is the Queensland case, R v Menniti in which a majority of the Court of Criminal Appeal, after referring to White v Ridley, also
took an elements of the offence approach.220
217 See 39–40.
218 White v Ridley [1978] 140 CLR 342.
219 Effectively that because he tried to stop the importation he had not relevantly imported the drugs and that in any event there was no mens rea at the time of the importation.
220 R v Menniti [1985] 1 QR 520 (CA).
[280] I am aware of only one case which proceeds expressly on the basis of withdrawal as an authentic defence and which may be relied on despite the elements of liability for aiding and abetting having been established. This is the 2013 judgment of the Supreme Court of Canada in R v Gauthier.221 As the Court recognised, withdrawal had not previously been explicitly recognised as providing a defence to liability as an aider and abettor. It is fair to say, however, that the Court’s
basis for concluding that withdrawal was an authentic defence (albeit in limited circumstances) seems to have been primarily on the basis that it considered that this had previously been implicitly accepted222 and most of the associated discussion is devoted to why the defence should only be recognised in limited circumstances.
Policy
[281] In their reasons, the majority explains the policy underlying the proposed defence of withdrawal in this way:
[122] The main reason for allowing the defence is the potential beneficial effect of withdrawal by a party in preventing the commission of the crime and thus avoiding the harm it will cause. Withdrawal by one party may dissuade or frustrate a principal from committing the offence.
[282] I confess to seeing this policy consideration as unrealistic. This is for two reasons:
(a) Those who have incurred potential liability as a party and are contemplating withdrawal may appreciate at a very general level that the more quickly and decisively they withdraw and the more effectively they negate their earlier actions (particularly if they stop the offence occurring) the better off they are likely to be later. But it is not very plausible to assume that people in that situation have sufficient knowledge of the criminal law (or are in the frame of mind) such that their actions will be affected by whether the Court
adopts the majority’s approach or my approach.
221 R v Gauthier 2013 SCC 32, [2013] 2 SCR 403.
222 At [41].
(b)In any event, my approach provides a stronger incentive for a party to stop the offending because on the majority’s approach ineffective attempts to do so are more likely to provide a defence.
[283] Leaving aside the practical problems just mentioned, the primary significance of the authentic defence approach is that a defendant who intentionally assisted the principal offender to offend may, in some circumstances, rely on a defence of withdrawal even though the assistance provided (a) was not negated, and (b) materially facilitated the commission of the offence. There is obviously scope for debate whether the more appropriate outcome for such a defendant is an acquittal or simply an argument by way of mitigation of penalty. For myself, however, I see that debate as having been resolved by the legislature and by the text of s 66.
Why I would allow Ms Rameka’s appeal and dismiss Ms Ahsin’s appeal
A preliminary comment
[284] As I will explain, I think that the resolution of the two appeals is relatively straight-forward, albeit that the reason why I would allow Ms Rameka’s appeal differs from that of the majority and, in respectful disagreement with the majority, I would dismiss Ms Ahsin’s appeal.
[285] The majority has rejected a number of the arguments advanced by the appellants and, in respect of those arguments, I am content to adopt the reasons of the majority.223 In this section of my judgment, I will therefore confine myself to some general comments on the Judge’s summing up, discussion of the withdrawal defences in respect of both appellants and the particular reasons why I would allow Ms Rameka’s appeal and dismiss that of Ms Ahsin.
The Judge’s summing up
[286] I should acknowledge at the outset that the task of the Judge was made unnecessarily difficult. This is because the case against both Ms Ahsin and
Ms Rameka was advanced under both s 66(1)(b) and (c) and s 66(2). In her closing
223 See the reasons of the majority above at [98]–[101] and [197]–[198].
address, counsel for the Crown had not sought to differentiate between the two subsections but had asserted both active participation (including encouragement) in the attack on the deceased and, as well, common purpose liability.
[287] There were some difficulties with the way the Judge summed up. The Judge did not identify in simple and concrete language – and on a defendant-by-defendant and count-by-count basis – what the Crown had to establish to secure verdicts of guilty. There are some particular issues in the summing which, on my approach, are primarily material to the case against Ms Ahsin and I will deal with them in that context.
Withdrawal – Ms Ahsin
[288] The words of alleged withdrawal relied on were shouts of “that’s enough”, “get in the car”, “the police are coming” and “come on, let’s go”. It is unclear whether these shouts came from Ms Rameka or Ms Ahsin or perhaps both. For this reason, I will assume that it is reasonably possible they could have come from either of them.
[289] On my approach to withdrawal, nothing that Ms Ahsin may have said could be a defence in respect of s 66(1)(b). On the Crown case she had deliberately stopped the car near the deceased with the intention of facilitating what she knew would be a murderous attack. The only way she could avoid liability for murder was to prevent McCallum killing the deceased.
[290] To find Ms Ahsin guilty under s 66(2), the jury had to be satisfied that the murder occurred in the course of the implementation of a common purpose and thus that Ms Ahsin was still a party to that common purpose at the time of the murder. The question whether this was so was thus one which the jury had to address and therefore had to be left to the jury, as it was. That said, I do not see much substance in the contention that the shouted words served to remove Ms Ahsin from the common purpose.
[291] Ms Ahsin’s principal role in the offending was as the driver of the car. She
had driven up to and stopped beside the deceased. It is clear that it was envisaged by
all concerned that she would wait in the car while McCallum and Rippon assaulted the deceased and then drive them away when they had finished. This is exactly what she did. Her shouts to McCallum were consistent with her role, in that she was inviting McCallum to return to the car so that she could drive him away. I accept that the shouts could be seen as a late indication that Ms Ahsin did not wish McCallum to murder the deceased. It is, however, perfectly clear that, despite such apparent reservations, she remained and continued to play her part in the implementation of the underlying common purpose by waiting until McCallum had finished and then driving him away. To me, the evidence supports not withdrawal from the common purpose but rather a continuing participation in its implementation.
Withdrawal – Ms Rameka
[292] At trial, Ms Rameka did not suggest that the shouts had originated with her and was content to allow them to be attributed to Ms Ahsin. The proposition that they may have originated with her was advanced for the first time in this Court. If the outcome of her appeal turned on this point, I would have required some convincing – and perhaps sworn evidence – before being prepared to entertain this proposition and particularly any criticism of the summing up based on complaints that the Judge did not adequately deal with a line of argument which, as a result of what must have been a tactical decision made by Ms Rameka and her counsel, was not raised at trial. For the purposes of the present discussion, however, I will put this point to one side.
[293] Unless the jury was sure that Ms Rameka encouraged McCallum’s murderous assault on the deceased, it could not convict her under s 66(1)(c). If the jury thought it is possible that she had made the remarks in question, it may have been left in doubt whether any encouragement she had earlier given was current at the time of the fatal assault. If so, the jury would have found her not guilty on the basis that the elements of the offence had not been made out. As is apparent from what I have already said, on my approach to what the Crown had to show to establish liability under s 66(1)(c), the defence of withdrawal which the majority regards as tenable in respect of this aspect of the case serves no useful purpose. This
is because a jury which accepted the defence (in the sense of seeing it as reasonably possible) would have already concluded that encouragement had not been established.
[294] In respect of s 66(2), Ms Rameka faces problems which are similar to, but not as acute as, those already discussed in respect of Ms Ahsin. In her favour is the fact that her role in the implementation of that purpose was less tangible than that of Ms Ahsin. Since that role came down to encouragement, a clear cessation of such encouragement and disapprobation of McCallum’s actions could represent a withdrawal by her from the common purpose. Arguably the shouted words were sufficient. But, as with Ms Ahsin, the expression of a wish that McCallum not kill the deceased does not necessarily represent a withdrawal from the common purpose. So I think it would be legitimate for a jury to conclude that, despite the shouted words, she remained a party to the common purpose in that she stayed at or by the car and at the conclusion of the assault left the scene with McCallum.
Why I would allow Ms Rameka’s appeal
[295] The Court of Appeal was satisfied that it was open to the jury to convict
Ms Rameka under s 66(2).224 I agree. This is because:
(a) It was open to inference that there was a common purpose to which Ms Rameka was a party, which encompassed looking out for and attacking, with likely fatal consequences, anyone thought to be associated with the Mongrel Mob and that she (along with the others) had agreed to assist each other in facilitating this common purpose.
(b)Such assistance was to be provided by her in the form of presence, support and encouragement.
(c) The murder was committed in the prosecution of this common purpose.
224 Rameka v R, above n 175, at [134].
[296] The Court of Appeal, following a very careful review of the evidence, reached the view that there was insufficient evidence against Ms Rameka to support a conviction based on s 66(1). In doing so, the Court of Appeal focussed almost exclusively on the evidence of what happened at the time of the fatal assault. It concluded that it was not open to the jury to conclude that Ms Rameka had pushed the deceased out of the car and that the evidence was too equivocal to enable the jury
to conclude that she had been yelling encouragement at the critical time.225 I agree
with the conclusion of the Court of Appeal on this point.226
[297] This is not to say that the Crown was not entitled to rely on s 66(1). If the jury concluded that Ms Rameka was a party to the common purpose of the kind referred to in [295](a) and that the assistance she had agreed to provide was by way of presence, support and encouragement, the jury would have been entitled to infer that her presence at the time of the final assault was itself by way of encouragement and would thus have been entitled to find her guilty under s 66(1), irrespective of the difficulty of attributing to her anything actually said or done at the time of that assault. Unsurprisingly (given that such an approach to liability would have simply duplicated the Crown’s s 66(2) argument) the case was not put to the jury on this basis.
[298] What troubles me is the risk that despite the absence of an adequate evidential foundation, the jury (or some of its members) may have concluded that Ms Rameka was guilty on the basis that she provided assistance or encouragement to McCallum at the time of the murder. I see this risk as being more than theoretical given that the case against Ms Rameka under s 66(2) was not overwhelming. This is not to say that what happened at the scene had to be put to one side. In assessing the case against Ms Rameka under s 66(2) – including the nature and scope of the underlying common purpose, her role, if any, in it, and the foreseen probable consequences of its implementation – the jury was entitled to take into account the evidence as to her behaviour at that time. But what the Judge should have told the
jury is that this behaviour did not in itself warrant a finding of guilty. All of this is a
225 At [118].
226 Compare the reasons given by the majority above at [168].
slightly long-winded way of saying that the case against Ms Rameka should most logically have been put to the jury solely on the basis of s 66(2).
[299] This is not a retreat from my views on unanimity. On the approach taken by the Court of Appeal, which I adopt, the evidence in support of the case as presented against Ms Rameka under s 66(1)(b) and (c) (which focussed on what happened after the car stopped) was insufficient to support a conviction. It was therefore not open to the jury to conclude that she was guilty under s 66(1)(b) or (c). On the particular facts, and allowing for the way the Crown presented it case, it was therefore also not open to the jury to conclude that if Ms Rameka was not liable under s 66(2), she was necessarily guilty under s 66(1)(b) or (c).
[300] For those reasons I would allow Ms Rameka’s appeal, quash her conviction
for murder and direct a retrial.
Why I would dismiss Ms Ahsin’s appeal
[301] If the Judge was going to sum up on both s 66(1) and s 66(2) in respect of Ms
Ahsin, he should have told the jury that they could find Ms Ahsin guilty:
(a) under s 66(1)(b) and (c) if sure that she knew that McCallum would assault the deceased with murderous intent and intentionally assisted and encouraged him to do so by stopping the car beside the deceased, moving the car during the attack, shouting encouragement and generally acting as a get-away driver; or
(b)under s 66(2) if sure that she was a party to a common purpose to attack people thought to be associated with the Mongrel Mob and to assist each other in carrying it out, that McCallum murdered the deceased in the implementation of that common purpose and that she knew that murder was a probable consequence of the carrying out of the common purpose.
[302] I consider that there were the following errors in the summing up and question trail:
(a) In the summing up, the Judge did not make it clear that Ms Ahsin’s liability under s 66(1)(b) depended on her assistance being intentional. This was, however, correctly addressed in the question trail.
(b)The question trail did not direct the jury’s attention to the need for the murder to have been carried out in the furtherance of the common purpose. This was addressed in the summing up.
(c) In the question trail the direction as to the required foresight was that a “killing could well happen” rather than murder. Again this was correctly dealt with in the summing up.
(d)In the summing up the Judge did not refer to the necessity for the jury to be aware of McCallum’s murderous intent albeit that this was referred to in the question trail.
[303] It seems to me to be sensible to focus primarily on the question trail which jurors had with them during their deliberations and which they must have used as an agenda for their deliberations. Accordingly, I do not regard correct statements of the law in the summing up as negating errors in the question trail but, on the other hand, am not troubled by the error in the summing up referred to in [302](d) which was not repeated in the question trail. This leaves in contention the first three errors mentioned in [302].
[304] I do not think it significant that the question trail did not expressly address whether Ms Ahsin’s assistance was intentional. The question trail relevantly asked whether the defendants incited, aided or encouraged McCallum in his assault on the deceased. The next question came down to whether the defendants did so with an awareness that McCallum would attack the deceased with murderous intent. The stopping of the car beside the deceased must have been deliberate. And if Ms Ahsin
did so knowing that this would result in a murderous attack by McCallum on the deceased, as the jury must have concluded, she was plainly guilty of murder.
[305] The second error seems to me to be equally inconsequential. It is true that the question trail should have directed the attention of the jury to whether the murder occurred in the prosecution of the common purpose but did not do so. On the other hand given the scope of the common purpose alleged by the Crown (to intimidate and assault those thought to be associated with the Mongrel Mob) and the complete absence of any reason other than the implementation of this common purpose for the attack on the deceased, the conclusion that the attack occurred in the implementation of the common purpose was inescapable provided that the common purpose was still current at the time. And as to this, the question trail did address withdrawal.
[306] I was initially more troubled by the third of these errors (foresight of a “killing” but not murder) but, on reflection, see it as also being of no substantial moment. An intention to inflict violence (in a context where weapons are to hand) and a recognition that death is a probable consequence are practically indistinguishable from an intention to inflict bodily injury with an awareness that death is likely to result. In other words, a party to the common purpose alleged who knew that a killing was probable would necessarily also have recognised that murder was probable (or to be more particular, that death would result from an assault with intent to cause injury with foresight of, and recklessness as to, the likelihood of death).
[307] More generally, the jury must have concluded that Ms Ahsin had the necessary mens rea – broadly, an awareness that a murderous attack was probable and a willingness to assist (principally in the form of driving) despite this awareness. Given the significance of Ms Ahsin’s physical involvement in the events that led to the murder, the finding that she had the necessary mens rea led inexorably to the conclusion that she was guilty of murder.
[308] Although I am critical of the structure of the summing up, the question trail the Judge provided would have enabled the jury to follow a logical path to the verdict they reached and I cannot see how the imperfections which I have identified could have resulted in this process miscarrying.
Solicitors:
Crown Law, Wellington for Respondent
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