George v The Queen - [2021] NZCA 56

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA703/2017
[2021] NZCA 56

BETWEEN	VINCENT MANA GEORGE Appellant
AND	THE QUEEN Respondent

CA711/2017
BETWEEN	DENIS ROBERT HENRY SOLOMON Appellant
AND	THE QUEEN Respondent

Hearing:	2 December 2020
Court:	French, Whata and Mander JJ
Counsel:	G C Gotlieb and H Z L Krebs for Appellant George M W Ryan and J E Tulloch for Appellant Solomon L C Preston for Respondent
Judgment:	10 March 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to adduce the evidence of Fairlane Michelle Henare is declined.
BThe appeal brought by Vincent Mana George (CA703/2017) is dismissed.
CThe appeal brought by Denis Robert Henry Solomon (CA711/2017) is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

TABLE OF CONTENTS

Para No

Introduction
Background
The Crown case at trial
The defence at trial
Grounds of appeal

Mr Solomon’s appeal
Mr George’s appeal

The new evidence
Analysis of the new evidence
Mr Putt’s hearsay statement
Admissibility of the evidence of Mr Kamoto
Admissibility of statement made to police by Mr Solomon on 23 February 2016
Closing address of prosecutor
The Judge’s direction on intent and the question trail
Summary of conclusions
Outcome

[1]
[3]
[10]
[31]
[38]
[38]
[41]
[43]
[61]
[77]
[93]

[106]
[121]
[127]
[152]
[154]

Introduction

Mr George and Mr Solomon are two patched members of the Tribesmen gang. A High Court jury found them both guilty of the murder of a 24-year-old gang prospect called Clayton Ratima.
Both men now appeal their convictions.

Background

At about 1.20 pm on Sunday 21 February 2016, two Tribesmen gang members driving a white Honda Odyssey motor vehicle dropped an unconscious Mr Ratima off at an Auckland hospital.
The serious nature of his injuries prompted medical staff to alert the police.
One of the two men who had driven the silver Honda Odyssey was still at the hospital when the police arrived. He claimed they had found Mr Ratima lying on the roadside. The other man had already left the hospital in the car which was later discovered abandoned.
Mr Solomon was the registered owner of the vehicle.
Mr Ratima was put on life support, pronounced brain dead the following day and on Wednesday 24 February 2016 after his family had had a chance to say their goodbyes, he was taken off life support.
According to the pathologist who undertook the post mortem, Mr Ratima had sustained multiple blunt force injuries to his neck and head, consistent with approximately eight discrete blows inflicted by fists and/or feet. In the pathologist’s opinion, it was apparent that significant force had been used because of the nature of the injuries including fractures to two vertebrae in Mr Ratima’s neck. She said the ultimate cause of death was subdural and intra-brain bleeding and herniation caused by the blunt force trauma to the head and neck.
A police investigation was launched. It was impeded by a lack of co-operation from gang members. But…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading George v The Queen

Details

AGLC: George v The Queen [2021] NZCA 56
Case: [2021] NZCA 56
Decision Date: 10 March 2021

CaseChat Overview and Summary

Vincent Mana George and Denis Robert Henry Solomon are members of the Tribesmen gang who were convicted of the murder of a gang prospect, Clayton Ratima. Both appealed against their convictions. George also challenged the admissibility of certain evidence. Solomon sought to adduce new evidence and argued that the trial was unfair. The Court of Appeal dismissed both appeals. The Court rejected Solomon’s application to adduce new evidence on appeal. The evidence was not fresh, was not credible and did not satisfy the principles governing the admission of new evidence on appeal. George’s challenge to the admissibility of a hearsay statement made by a deceased witness was rejected. The Court found no error in the Judge’s direction on murderous intent and in the composite question trail provided to the jury. The Court concluded that there was no error in the Judge’s direction on intent, the admissibility of the evidence or in the conduct of the trial and that none of the grounds of appeal warranted appellate intervention.

Orders