Erikson v Police

[2013] NZHC 220

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000182

CRI-2012-404-000263 [2013] NZHC 220

MICHAEL ERIKSON AND LEGEND TEKOERU ROSS

Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2013

Counsel:         S A Rees for Appellants

A J Pollett for Respondent

Judgment:      15 February 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 15 February 2013 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

S A Rees, PO Box 6132, Wellesley Street, Auckland 1141. Email:  [email protected]

Crown Solicitor, DX CP 24063, Auckland 1140. Email:  [email protected]

ERIKSON AND ROSS V NZ POLICE HC AK CRI 2012-404-000182 [15 February 2013]

Introduction

[1]      Michael Erikson  and  Legend Ross have been  convicted on  a number of charges of unlawfully taking and interfering with motor vehicles, theft and burglary. They appeal against their convictions and sentence.

[2]      The appeals against conviction are allowed.  Accordingly, it is not necessary to deal with the appeals against sentence of Messrs Erikson and Ross.   The co- accused, Mr Wood, had appealed his sentence only.  That sentence appeal has been adjourned.1

The alleged offending

[3]      Mr Erikson faced 18 charges, of which 15 related to 23 August 2012 and three to  31 August  2012.    He pleaded  guilty to  two  of the  charges  relating to

23 August 2012.  The trial was before Judge Treston as a judge alone.  In a reserved decision, Mr Erikson was found guilty on the remaining 16 charges.

[4]      Mr Ross faced 15 charges alleged to have taken place on 23 August 2012.  He had pleaded guilty to one charge.   He was found guilty by Judge Treston on the remaining 14 charges in the same decision.

[5]      A fourth defendant, Joshua Sprague, pleaded guilty to a number of related offences independently and was sentenced separately by a different Judge.

[6]      Messrs  Erikson  and  Ross  were  found  guilty  on  all  of  the  counts  they defended.

[7]      The facts of the particular alleged offences are complex and do not need to be exactly summarised.  In general terms, it was the Crown’s case that all four of the accused acted together on certain unlawful takings, thefts and burglaries on the night

and  early  morning  of  23  and  24 August  2012  with  some  further  offending  on

1      Erikson v NZ Police HC Auckland CRI-2012-404-182, 4 February 2013.

31 August 2012.   It was alleged that they were involved in a spree of dishonest conduct, as well as breaking into or attempting to break into premises and cars.

[8]      Thus,  there are a  number of  charges  for  attempting or actually taking  a number of motor vehicles, charges relating to the attempted burglary or actual burglary of various premises, of stealing registration plates and theft of property when cars were broken into, and interfering with a number of cars when the quarter lights were smashed.  Perhaps the most serious of the offences was when a stolen motor vehicle was rammed into the windows of a Dick Smith Electronics shop.

The issue on appeal

[9]      Ms Rees who acted for both Mr Erikson and Mr Ross raised a number of issues.  Much of her argument focused on whether texts sent by individual accused were admissible under s 12A of the Evidence Act 2006 and the common law rules relating to statements of co-conspirators and persons involved in a joint criminal enterprise.

[10]     However,  she  put  forward  a  more  fundamental  complaint  based  on  the general approach of the Judge to whether the charges were proved.  In this judgment I deal with this single determinative issue of whether the Judge set himself the wrong task.   Because I am satisfied that the submission on this point is correct and that there was an error made in relation to the Judge’s general approach, the consequence must be that the convictions against Messrs Erikson and Ross are set aside and a new trial ordered.

The nature of the charges

[11]     The informations make no reference to parties or s 66 of the Crimes Act 1961 (“the Act”).   Ms Rees, who appeared in the District Court, informed me in submissions that the trial proceeded on the basis that all parties were charged as principals.    Ms Pollett  for  the  Crown  queried  this,  and  I  was  referred  to  the submissions filed in the District Court on behalf of both Mr Erikson and the Police. There are some references in those submissions to the defendants being in a joint

enterprise.  There is, however, no suggestion that any of the accused are charged as parties on any of the offences.  In particular, there was no reference to s 66(2) of the Act, relating to common intention parties.  The defence submissions in the District Court made no reference to parties.

[12]     The  existence  or  otherwise  of  a  joint  criminal  enterprise  was  not  an ingredient of the charges against the appellants. They were charged as principals and not parties.  There was no allegation in terms of ss 66(1)(b)–(d) that they aided or abetted or incited.  Nor were there any allegations in the words of s 66(2); namely of two or more persons forming a common intention to prosecute an unlawful purpose, and consequently becoming a party to every offence committed, if the commission of the offence was known to be a probable consequence of the prosecution of that common purpose.   The submissions and the judgment are devoid of any such language, and as I have stated, I am satisfied that the case was not run along those lines.

[13]     I  will  refer  to  the  Judge’s  decision  in  more  detail.    However,  I  accept Ms Rees’ submission that the appeal should proceed on the basis that the appellants were charged only as the principal parties to the offence and not as parties.

The decision

Approach of the Judge

[14]     The Judge set out the background facts and relevant legal directions that should guide him in his decision, and proceeded to describe the prosecution case. He noted:2

The case for the police is that each of the defendants is part of a joint enterprise and is therefore responsible for all offending that took place.  The defendants have been charged “together” to reflect this position.

[15]     The Judge then went on to note the issue as to whether the text messages sent by Mr Erikson were admissible.  He recorded:3

2      Police v Erikson DC Auckland CRI-2011-004-15939, 23 May 2012 at [22].

I am of the view that s 12A of the Evidence Act 2006 supports the position that the defendants were part of a joint enterprise in so far as I will mention later.

[16]     He quoted s 12A of the Evidence Act 2006 and held:4

In summary I am satisfied that there was [a] joint enterprise and that items in the text messages from exhibits 12 and 13 establish much of the prosecution case against the defendant Ross on the basis of text messages sent by the defendant Erikson.

[17]     He then went on to consider the individual charges.  The Judge referred to the first count relating to the theft of a Subaru Legacy motor vehicle registration EZD32. He  held  that  “because  of  the  joint  enterprise”,  Messrs  Erikson  and  Ross  were involved in the theft.5

[18]     The Judge then went  on  to  consider  the  attempted  unlawful  taking of  a Holden Torana motor vehicle.   He referred to the evidence and held that Messrs Erikson and Ross were guilty “beyond reasonable doubt in accordance wtih the joint enterprise”.6

[19]     The Judge went on to refer to the fact that cellphone data indicated that Mr Erikson was in the immediate area of the attempt of the unlawful taking.   I consider these charges in further detail below.

[20]     He referred in a similar way to the charge relating to a Toyota Vitz vehicle, holding that the fact that the appellant Mr Wood had pleaded guilty to unlawful conversion of a vehicle seen at the scene of the crime confirmed the “joint enterprise”.7

[21]     The other charges were dealt with in a similar way, with some reference to the evidence and on occasion mentions of there being a joint enterprise.

4 At [52].

5 At [59].

6 At [60].

Application of a joint enterprise test

[22]     This was not a party liability case.   I have already referred to the way in which the appellants were charged and the approach of the parties at the trial.  The Judge in his decision makes no reference to the appellants being charged as parties, and no reference to ss 66(1)(b)–(d) or s 66(2).

[23]     The  admissibility  of  admissions  made  by  the  co-defendants  against  one another under s 12A of the Evidence Act 2006 did indeed turn on whether the parties were involved in a “joint criminal enterprise”.  However, the Judge appears to have confused the concept of a joint criminal enterprise in the context of the admissibility of evidence, with what was necessary for the Crown to prove to establish guilt on the part of the appellants.

[24]     This issue arose in Ngamu v R.8   It was recognised that the tests are entirely different.   One involves establishing a joint criminal enterprise on the balance of probabilities for admissibility purposes. The other involves the more onerous burden of proving guilt beyond reasonable doubt.

[25]     A number of accused can of course be liable as principals in respect of his or her individual part of the actus reus of a particular count.   The acts can differ between the accused.  However, it must be proved that each accused carried out the actions necessary to fulfil the elements of the count.  Deciding on guilt or innocence in circumstances such as these, where there are numerous charges against a number of defendants, is a time consuming task.  As was commented in Ngamu, an appeal from a jury trial that involved a large number of secondary participants in a cheque

theft ring: 9

But it was an inevitable consequence of this multi-accused, multi-charge indictment.   Defendants’   rights   cannot   be   circumscribed   by   what   is essentially the Crown’s discretion to have a large number of charges heard together.

8      Ngamu v R [2010] NZCA 256, [2010] 3 NZLR 54 at [16].

[26]     The Court of Appeal commented that it would have been very desirable for there to have been individual question trails with respect to each charge against the defendants.10

[27]     Save as a background factor, it was not correct in these circumstances for the Judge to take into account in assessing guilt the fact that he thought there was a joint enterprise.  The Judge was required to consider each charge against each accused, and to assess whether the ingredients of that charge were proved beyond reasonable doubt. This was not done.

[28]     There is no indication in the Judge’s decision that he applied himself to an individual question trail, or an examination of the elements in relation to each count against  each  accused.     Rather,  he  appears  to  have  allowed  his  decision  in considerable part to rest on his finding that, in relation to a particular charge, there was a “joint enterprise” between the parties.  He does refer to specific evidence other than  the  joint  enterprise,  but  does  not  apply  that  evidence  in  relation  to  the ingredients of the particular count.

Examples of the problem

[29]     As noted above,11  the difficulties with the Judge’s reasoning begin with the first count.  Messrs Erikson and Ross were found guilty by the Judge of dishonestly taking a silver Subaru, against s 226(1) of the Act.   That charge requires proof beyond reasonable doubt that an accused has taken or used a vehicle for his or her own purposes, dishonestly and without claim of right. The Judge held that:12

It  is  clear  that  the  defendant  Erikson  and  others  ran  a  joint  criminal enterprise to steal the Subaru STI from the car yard in Morningside and clearly the defendant Ross was part of the planning involved in the offending as the statements placed him with Erikson during the planning and commission of the offence with a reference to RSKY, RESKEY and LENGEND within the text messages.

10 At [19].

11     At [17]–[20] above.

12     Police v Erikson, above n 2, at [53].

[30]     The Judge continued a discussion of Messrs Erikson and Ross’s liability under the heading “Individual charges”, holding:13

Mr Marsh the owner of that 2001 motor vehicle gave evidence that it was stolen from Peary Road in Mt Eden on the evening of 23 August 2011. Because of the joint enterprise in respect of the matter to which I have already referred I am satisfied that both Erikson and Ross were involved in the theft of that vehicle.

[31]     There is no consideration of any other evidence concerning the first count. With respect, it would appear that the Judge considered that liability for the conversion followed his conclusion that the evidence established the existence of a joint enterprise.   That  was not  the right  approach.   What was  required was  an evaluation, charge-by-charge, element-by-element, of whether each accused was guilty as a principal.  The Judge did not consider any evidence concerning the taking of the Subaru beyond the evidence given by Mr Marsh, nor demonstrate how the appellants were involved beyond their membership of the “joint enterprise”.

[32]     Another example can be seen concerning the charge of unlawful interference with the Toyota Vitz, of which Erikson, Ross and Wood were found guilty.   The charge required proof beyond reasonable doubt that each appellant interfered with the Toyota, dishonestly and without claim of right. The Judge reasoned:14

The security guard Phillip Clark witnessed two vehicles parked alongside each other which was the stolen Subaru station wagon registration number EZD32. A male ran towards it; it was driven by another. Clearly that was the vehicle taken at 1800 and because of a joint enterprise I am satisfied beyond reasonable doubt that the three defendants, Wood, Erikson and Ross, are guilty of that charge.

[33]     Again,  guilt in this case could not be established “because” of the joint enterprise.  Evidence that would otherwise have been inadmissible could potentially be adduced “because” of the joint enterprise, with those statements being merely one part of the totality of the evidence to be weighed as part of the prosecution’s case.

[34]     Later in the judgment, the Judge considered the guilt of the appellants for the burglary of Bistro Bambina.15   That charge required proof that the appellants entered

13 At [59].

14 At [61].

15 At [67].

the premises without authority, with the intention to commit a crime therein.16   The

Judge held:17

Although Mr Peter Wren, the owner, provided CCTV footage capturing the actions of one of the offenders, that was Sprague, but I am satisfied from a joint enterprise [sic] that defendants Erikson and Ross were part of  that burglary and property found in the Subaru STI associated with both defendants confirm their involvement.   I find those informations proved against Erikson in [sic] Ross in relation to Bistro Bambina on the basis of a joint enterprise and other circumstantial facts.

It would appear in the above passage that the Judge was again considering evidence that could either militate in favour or against the involvement of the appellants in the joint enterprise.  There was no evaluation of how the evidence proved the existence or otherwise of the essential elements of the offence of burglary, for each appellant. As has been noted, guilt in this case could not be “on the basis of a joint enterprise”.

[35]     It may be that if s 66(2) of the Act had been specified and the case had proceeded  on  that  basis,  the  Judge  would  have  held  that  there  was  a  common intention and that the above offences were probable consequences of that intention. However, it is far from clear that the Judge would, if he had addressed the issue, have held it proved beyond reasonable doubt that each individual appellant was guilty of each individual charge on the basis of principal liability.  He may have, but this does not appear to be the question he asked himself.

[36]     In these circumstances, the Judge may well have considered it permissible to find one of the appellants guilty even if he had not committed an act or omission amounting to the actus reus of each offence and had the requisite mens rea.  This would have been wrong.   Guilt could not be found on each charge laid through membership of a joint enterprise alone.  The danger of the approach was that it could lead,  and  indeed  may have  led,  to  across  the  board  verdicts  of  guilty.    It  was fundamental that each particular accused must have done something with respect to each of the elements of the particular offence before he could be found guilty.  There must be doubt as to whether a conclusion of guilt would have been reached if

orthodox count by count, element by element reasoning had been adopted.

16     Crimes Act 1961, s 231(1)(a).

17     Police v Erikson, above n 2, at [67].

Conclusion

[37]     As  observed  in  Ngamu,  there  are  a  number  of  difficulties  involved  in confusing the issue of a joint criminal enterprise for the purposes of s 12A of the Evidence Act 2006 and whether a charge against a person as a principal is proven. The nature of the onus is different in each case.  The evidential test only involves proof  on  the  balance  of  probabilities.    Proof  of  guilt  requires  proof  beyond reasonable doubt.   Moreover, the Crown had to prove each independent element individually beyond reasonable doubt.  It is not clear from his judgment whether the Judge considered that the Crown had done so or not.  The likelihood appears to be that the Judge did not in fact address this question, as his conclusion that there was a joint enterprise persuaded him that this was not necessary.  In fact, it was essential that he carry out the task, lengthy as it would have been.  Each element of each count against each accused should have been addressed.

[38]     Thus, with respect to the Judge I consider that he erred when he deduced evidence of guilt from his finding that there was a “joint enterprise” as if this was something substantively that the Crown had to prove, and had proved to the requisite criminal standard.

[39]     In my respectful view he set himself the wrong task and I have no alternative but to allow the appeals against conviction.

Result

[40]     The appeal is allowed.

……………………………..

Asher J