Kuru v The King
[2024] NZSC 184
•20 December 2024
| NOTE: HIGH COURT ORDER IN [2021] NZHC 1426 PROHIBITING PUBLICATION, IN ANY REPORT OR ACCOUNT RELATING TO THE PROCEEDINGS, OF THE NAMES, ADDRESSES OR OCCUPATIONS OF WITNESSES B, H, O AND AC OR ANY OTHER PARTICULARS LIKELY TO LEAD TO THE WITNESSES’ IDENTIFICATION PURSUANT TO S 113 OF THE EVIDENCE ACT 2006 REMAINS IN FORCE. SEE |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 61/2023 [2024] NZSC 184 |
| BETWEEN | DAMIEN SHANE KURU |
| AND | THE KING |
| Hearing: | 4 March 2024 |
Court: | Winkelmann CJ, Glazebrook, Ellen France, Williams and Kós JJ |
Counsel: | C W J Stevenson, J H C Waugh and O H Fredrickson for Appellant |
Judgment: | 20 December 2024 |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe appellant’s conviction is set aside.
COrder under ss 233(3)(a) and 241(2) of the Criminal Procedure Act 2011 that a judgment of acquittal be entered.
____________________________________________________________________
REASONS
| Para No | |
| Summary of Reasons | [1] |
| Winkelmann CJ, Ellen France and Williams JJ | [22] |
| Glazebrook J | [72] |
| Kós J | [314] |
SUMMARY OF REASONS
(Given by the Court)
This is a summary of the reasons of the Court on the issues likely to have importance for other cases, but it must be read in conjunction with the full reasons.
Background
Mr Ratana, a senior member of the Mongrel Mob, was shot and killed following a confrontation with members of the Black Power Whanganui chapter. After a jury trial, Mr Kuru was convicted as a party to the manslaughter of Mr Ratana under s 66(2) of the Crimes Act 1961.[1]
[1]See below at [22]–[28] per Winkelmann CJ, Ellen France and Williams JJ (the majority) and [72]–[75] and [80]–[96] per Glazebrook J.
Mr Ratana was staying with his girlfriend in an area considered to be Black Power territory. The Crown alleged that Mr Kuru, the president of the Black Power chapter, had ordered, sanctioned or authorised a plan for members of the chapter to damage Mr Ratana’s property and to intimidate him, accompanied by firearms. The Crown did not allege that it was part of the plan to injure Mr Ratana or any other person.[2]
[2]See below at [26]–[27] of the majority’s reasons and [118]–[124] per Glazebrook J.
At trial, the Crown relied in part on the evidence of Detective Inspector Scott, whom the Crown called to give expert evidence on gang behaviour. Detective Inspector Scott’s evidence included the statements that the president “has the final authority over all chapter business and its members” and that, in his experience, “a (serious) organised gang crime against another gang would likely occur with the sanction of the president”. Detective Inspector Scott also gave general evidence on gangs, and on the Mongrel Mob and Black Power in particular. His professional experience was mostly in the Gisborne area.[3]
[3]For Detective Inspector Scott’s evidence generally see below at [31]–[35] of the majority’s reasons and [107]–[109] and [111]–[115] per Glazebrook J.
Mr Kuru appealed his conviction on three grounds, which are dealt with in the judgment in reverse order:[4]
(a)that the jury’s verdict was unreasonable;
(b)that the evidence of Detective Inspector Scott caused a miscarriage of justice; and
(c)that the jury was misdirected regarding joint enterprise party liability under s 66(2) of the Crimes Act.
Directions on party liability
[4]See below at [29] of the majority’s reasons and [76]–[77] per Glazebrook J.
The Court was unanimous that there was no misdirection on party liability: the Judge’s directions in this case were in accordance with the directions held to be required in this Court’s decision in Burke v R.[5]
Detective Inspector Scott’s evidence
Evidence on gang hierarchies
[5]Below at [30] of the majority’s reasons, [102]–[104] per Glazebrook J and [314] per Kós J.
The Court was unanimous that Detective Inspector Scott’s general evidence as to gang hierarchies would have been admissible as substantially helpful under s 25 of the Evidence Act 2006 if it had been appropriately limited and qualified.[6]
Evidence that crime against another gang would likely have been sanctioned by the president
[6]Below at [64] of the majority’s reasons, [197] per Glazebrook J and [317] per Kós J.
The Court was unanimous that Detective Inspector Scott’s evidence that “a (serious) organised gang crime against another gang would likely occur with the sanction of the president” was inadmissible.[7] This led to a miscarriage of justice, which meant that the appeal should be allowed on this ground.[8]
[7]Below at [58] and [65] of the majority’s reasons, [196] per Glazebrook J and [315] per Kós J.
[8]Below at [66] of the majority’s reasons, [199]–[202] per Glazebrook J and [315] per Kós J.
The majority held that Detective Inspector Scott’s evidence on this point was unfairly prejudicial and should have been excluded under s 8 of the Evidence Act. For the same reasons, the evidence was also not sufficiently reliable or probative to meet the substantial helpfulness test for the admissibility of expert evidence under s 25 of the Evidence Act.[9]
[9]Below at [58].
The majority said that Detective Inspector Scott’s evidence could be read as addressing the ultimate issue for the jury — did Mr Kuru know of and had he sanctioned the attack? In a case with only circumstantial evidence, there was a risk the evidence would usurp the jury’s function. This was a risk that had to be weighed.[10]
[10]Below at [53].
Against this background, the issues with the admissibility of this evidence were as follows. First, the evidence carried with it a high risk of unfair prejudice in that it invited impermissible reasoning: namely, presidents of gangs know about and sanction rival gang attacks; this was a rival gang attack by Black Power on the Mongrel Mob; Mr Kuru is a gang president; and therefore he must have known about and sanctioned this rival gang attack. The difficulty with such reasoning is that it was based only on the evidence of Detective Inspector Scott, who did not, but should have, qualified the evidence which invited this reasoning. Judicial direction could not adequately address the risk of impermissible reasoning when the unfair prejudice was coterminous with the evidence’s probative value.[11] Secondly, the evidence was of limited probative value. Detective Inspector Scott did not record in his evidence his lack of familiarity with Whanganui Black Power.[12] As mentioned, he also failed to state important qualifications on his generally expressed opinion evidence (such as acknowledging variations in a president’s role between gangs, regions and different factual scenarios). Expert opinion evidence is required to be balanced. Balanced expert evidence would have included such qualifications.[13] Finally, Detective Inspector Scott’s evidence could be read as expressing the opinion that the shooting of Mr Ratana was a “(serious) organised gang crime against another gang”, without any proper basis for that opinion.[14]
[11]Below at [54].
[12]Below at [55].
[13]Below at [56].
[14]Below at [57].
Glazebrook J agreed that the evidence about the probability of a president authorising a serious attack was inadmissible. This is because it was evidence on the ultimate issue, and the jury already had, from common knowledge and from Detective Inspector Scott’s evidence about gang hierarchies, sufficient information to come to a conclusion on that ultimate issue.[15] The opinion evidence on the ultimate issue was therefore unnecessary and should not have been admitted under s 25.[16] She agreed that the evidence should also have been excluded under s 8.[17]
[15]Below at [190]–[191].
[16]Below at [196].
[17]Below at [193]–[194] and [196].
Kós J agreed that the part of Detective Inspector Scott’s evidence relating to the likelihood of a gang president authorising a serious attack on another gang member was inadmissible because it failed the tests for relevance, non-undue prejudice and substantial helpfulness in ss 7, 8 and 25 of the Evidence Act.[18]
General evidence on gangs
[18]Below at [315].
The majority made several observations regarding Detective Inspector Scott’s general evidence on gangs. They said that expert evidence on gangs should be confined to evidence relevant to a matter at issue in the proceeding and should not contain broad‑ranging discussion of contextual elements of gang life merely by way of background when that material is not relevant to a trial issue. Detective Inspector Scott’s evidence was discursive and included argumentative material that had little relevance or probative value. Some of this discursive material — narrative‑type evidence of the history, culture, criminality and violent activity of gangs — also carried an obvious prejudicial effect.[19]
[19]Below at [59]–[60].
The majority offered guidance for future cases as to what Detective Inspector Scott should have done to render his evidence admissible under s 25:[20]
(a)The Detective Inspector should have noted any limitations on his expertise — including that he had not studied or investigated the particular chapter of the gang and so could not comment on the operation of hierarchy within Mr Kuru’s chapter of the Black Power gang.
(b)He should have noted the limitations and qualifications that exist in relation to the applicability of the “traditional view” of gang hierarchy to any situation.
(c)He should have identified with more particularity the material upon which he drew in reaching his opinion. By this we mean that the officer should have identified whether he was drawing on courses attended or published papers (identifying the courses or papers), and/or experience gained on the job.
(d)While he could have included a description of the decision-making hierarchy in gangs, and in particular that the president has final authority over all chapter business and its members and that the sergeant‑at‑arms enforces the president’s orders, he should not have extended his evidence, as he did, to include an assessment of whether the president was likely to have sanctioned the particular type of conduct that the Crown alleged.
(e)He should not have given evidence that suggested the offending was serious organised gang crime when the level of organisation involved was the key trial issue.
(f)His evidence should have been confined in scope, avoiding a general narrative on gangs and argumentative material.
[20]Below at [64].
Glazebrook J agreed with this summary and also agreed with the majority that much of the general evidence given by Detective Inspector Scott was inadmissible as irrelevant and illegitimately prejudicial.[21]
[21]Below at [195] and [197]–[198].
Kós J did not agree with the majority’s more general comments on gang evidence.[22] The objections advanced by trial counsel had centred on the passages referred to above at [4]; that on-the-ground assessment was sound and there was no need here to go beyond it.[23]
Unreasonable verdict
[22]Below at [314].
[23]Below at [317]–[319].
The Court was unanimous that the jury’s verdict convicting Mr Kuru was unreasonable. The reasoning for this finding is set out in the reasons of Glazebrook J, with whom the rest of the Court agreed.[24]
[24]Below at [67] of the majority’s reasons, [282]–[312] per Glazebrook J and [314]–[315] per Kós J.
The Court applied the test, set out in R v Owen, of whether the verdict was one which, “having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt”.[25] In this case, there was a total absence of direct evidence against Mr Kuru. The remaining strands of circumstantial and other evidence were either equivocal or otherwise insufficient to establish guilt either individually or considered as a whole. While appellate courts must be careful not to usurp the function of the jury, here there was no plausible route to convict Mr Kuru beyond a reasonable doubt.[26]
Result
[25]Below at [205] per Glazebrook J.
[26]Below at [312] per Glazebrook J.
The Court unanimously allows the appeal on the grounds of inadmissible evidence and unreasonable verdict.[27]
[27]Below at [65]–[71] of the majority’s reasons, [199]–[202] and [312]–[313] per Glazebrook J and [314]–[315] per Kós J.
The appellant’s conviction for manslaughter is set aside and a judgment of acquittal entered. An acquittal was necessary for the same reasons that the jury’s verdict was unreasonable: there was an absence of direct evidence, and the remaining evidence was either equivocal or otherwise insufficient to establish guilt.[28]
[28]Below at [67]–[68] of the majority’s reasons and [312] per Glazebrook J.
WINKELMANN CJ, ELLEN FRANCE AND WILLIAMS JJ
(Given by Winkelmann CJ)
Table of Contents
| Para No | |
| Introduction | [22] |
| This appeal | [29] |
| Did the admission of Detective Inspector Scott’s evidence cause a miscarriage of justice? | [31] |
| The evidence of Detective Inspector Scott Evidence of Detective Inspector Scott at trial Relevant principles Application to this case | [31] [34] [39] [49] |
| Was the jury’s verdict unreasonable? Result | [67] [69] |
Introduction
Mr Ratana was a senior patched member of the Mongrel Mob, Mr Kuru the president of the Whanganui chapter of Black Power.[29] In 2018 Mr Ratana began visiting and staying over at a house in Pūriri Street, Whanganui. In gang terms, this house was in a part of Whanganui understood to be Black Power territory. Indeed, from driveway to driveway, the Crown submits that the house where Mr Ratana was visiting and staying was about 242 metres away from Mr Kuru’s home, which was one of the main houses frequented by that branch of Black Power.
[29]The reasons of Glazebrook J contain a more detailed factual narrative: below at [80]–[96]. A diagrammatic representation of relevant locations is provided in the appendix to this judgment.
Members of the local Black Power chapter began a campaign of intimidation in an effort to force Mr Ratana to leave the area. There were at least two incidents in this campaign before an attack on the house in Pūriri Street, and its occupants, on 21 August 2018. Mr Ratana was killed during the course of that attack, leading to the charges against Mr Kuru.
On the fatal day, at least six Black Power gang members went to the house in Pūriri Street, sometime around 9.30 am, armed with poles, batons and firearms. They began hitting Mr Ratana’s car, shouting out slogans, threatening Mr Ratana and verbally abusing those in the house. Mr Ratana walked out of the house, armed with a gun. One of the Black Power men then shot Mr Ratana, who died very shortly afterward at the scene.
Although Mr Kuru was not among the gang members outside the Pūriri Street house on 21 August, he was charged and stood trial alongside Mr Runga, who had allegedly taken part in the attack.[30] Mr Kuru was charged under s 66(2) of the Crimes Act 1961 as a secondary party to Mr Ratana’s murder or manslaughter. He was ultimately convicted of manslaughter and sentenced to five years and two months’ imprisonment.[31]
[30]Charges against other gang members had been resolved, as set out in the reasons of Glazebrook J: below at [74].
[31]R v Kuru [2022] NZHC 309 (Ellis J).
The Crown case against Mr Kuru was that he had formed an intention with at least one of the others involved in the attack that they would prosecute and assist each other with an unlawful purpose. As set out in the question trail given to the jury, the Crown framed the unlawful purpose as follows: “members of Black Power Wanganui would go to 144 Puriri Street to damage Mr Ratana’s property and to threaten him, accompanied by firearms”.[32]
[32]As Glazebrook J notes, the nature of the common purpose alleged by the Crown evolved over the course of the proceedings before trial: below at [118]–[119].
To succeed at trial on either charge, along with an offence-specific mens rea, the Crown had to satisfy the jury beyond reasonable doubt that Mr Kuru knew about the plan to go to Pūriri Street with firearms, and there to threaten Mr Ratana and damage his property. It had also to prove that Mr Kuru participated in or helped prosecute the plan by communicating by some means, to at least one of the others, his approval of, or agreement to, the plan. The Crown case against Mr Kuru in respect of each of these elements was entirely circumstantial — there was no direct evidence that Mr Kuru knew about the attack or its details; and there was no direct evidence that he authorised or approved of the attack, or that he had communicated that approval to any of the group who undertook the attack. The Crown case against Mr Kuru was based on the following key pillars:
(a)the fact that Mr Kuru was the president of Whanganui Black Power at this time. The Crown relied on evidence from Detective Inspector Scott, who was called to give expert evidence in connection with gangs, that the president of a gang would be likely to have sanctioned a serious organised attack on another gang;
(b)the evidence of what occurred at Pūriri Street — characterised by the Crown as a planned and coordinated attack against a rival gang member, led by the sergeant-at-arms of the chapter of Black Power, Mr Runga;
(c)the “launch” of the Pūriri Street attack from near Mr Kuru’s house in Matipo Street, and the men’s return to that general area afterward; and
(d)Mr Kuru’s presence in Tiki Street (which runs between Matipo Street and Pūriri Street) during the attack and then outside his house after it.
The defence case was that this was not a coordinated plan, nor a plan for a serious crime, and there was no evidence that Mr Kuru knew of it in advance or approved of it. First, the evidence suggested it was organised at the last moment when it became apparent that Mr Ratana was at the Pūriri Street house, and as a consequence it had all the hallmarks of a poorly put together operation — launched at a busy time of the day, between 9 and 10 am on a weekday, when there were likely to be witnesses. Secondly, it was not a plan for a serious crime, but was just part of ongoing low-level intimidation — one of the men had not even concealed his face. Given these circumstances, presidential sanction was not likely to have been required nor obtained. Thirdly, as to Mr Kuru’s presence in Tiki Street, the defence relied on Mr Kuru’s explanation to the police that he was on his way to a meeting at his son’s school when he heard gunshots. It was common ground that travelling along Tiki Street was not the most direct route to the school. Moreover, it was early for the meeting and the evidence suggested that Mr Kuru was already in Tiki Street when the gunshots were heard. The defence nevertheless invited the jury to conclude that Mr Kuru was out and about because of that appointment, and was attracted along Tiki Street by the sound of screaming and shouting, and the attack on the car, before he heard the gunshots. Finally, the defence said that the evidence did not suggest, let alone prove, that the attack was launched from Mr Kuru’s house. While there was evidence of the group’s presence in Matipo Street prior to the attack, there were other houses associated with Black Power members in that street. The evidence was not that it was launched from Mr Kuru’s house or even outside it.
This appeal
Mr Kuru appeals his conviction for manslaughter on three grounds:
(a)the jury’s verdict was unreasonable;
(b)the evidence of Detective Inspector Scott caused a miscarriage of justice; and
(c)the jury was misdirected regarding party liability under s 66(2).
We agree with the reasons of Glazebrook J below that there was no misdirection of the jury for the purposes of s 66(2), and for the reasons she gives.[33] We also agree with her that the appeal should however be allowed on the other two grounds: first, that the admission of Detective Inspector Scott’s evidence caused a miscarriage of justice in the sense that it “created a real risk that the outcome of the trial was affected”;[34] and second, that on the admissible evidence no reasonable jury could have been satisfied of Mr Kuru’s guilt beyond reasonable doubt.[35] We set out our reasons for allowing the appeal on these two grounds below. Because the ground in relation to Detective Inspector Scott entails determining whether parts of his evidence were admissible, it is logical to address that ground first.
Did the admission of Detective Inspector Scott’s evidence cause a miscarriage of justice?
The evidence of Detective Inspector Scott
[33]Below at [102]–[104].
[34]Criminal Procedure Act 2011, s 232(4)(a). See below at [202].
[35]See below at [312].
Detective Inspector Scott is a senior police officer with numerous years’ experience investigating gang-related activity and has led various gang-focused police initiatives. His brief of evidence prepared in advance of trial painted a broad-brush picture of gangs and how they operate, including discussion of their use of patches, slogans, violence and, importantly for the purposes of this appeal, decision-making structures within the gang. The headings “Patching and the Patch”, “Gang Structures”, “The Prospect”, “Violence”, “Black Power”, “Mongrel Mob”, “Intergang Conflict” and “Intergenerational Gangs” give a sense of the broad scope of the brief.
In the High Court, Ellis J ruled on a challenge to the admissibility of one part of Detective Inspector Scott’s evidence prior to trial.[36] His expertise was not the focus of that challenge — his expertise was not challenged then or at trial. Rather the challenge focused on one aspect of his evidence as to the role the president plays within a gang. The brief of evidence included the following discussion of the role of president as well as other roles:
[36]R v Fantham-Baker [2021] NZHC 2632.
39. The President is the figurehead of the gang or chapter, and is the chairman at meetings.
40. In some gangs the President can also be known as the ‘Prez or Captain’.
41. He is a senior member who has developed into the recognised leader usually through a combination of personal strength, leadership skills and personality. He has the final authority over all chapter business and its members.
42. An organised gang crime against another gang would only occur with the sanction of the president.
43. The president’s authorisation would be required due to the obvious risks and consequences that the particular gang would be exposed to which would likely include intense scrutiny by the Police and serious retaliation by the opposing gang.
44. Another consideration would be the risk of a number of their members being sentenced to periods of imprisonment depending on the particular crime committed.
45.It is not unusual for gangs to promote a public image of being a family or whānau group who claim that their particular gangs are community minded and not criminal organisations.
46. This stance is generally portrayed by the president and often after there has been a serious crime committed which has received negative publicity.
OTHER OFFICE HOLDERS
47. There is usually a Vice President who is the second in command, a Treasurer who manages the finances, a Secretary who holds the minutes of the gang meetings and a Sergeant of Arms [sic] who enforces the President’s orders.
The objection taken by the defence pre-trial was to paragraphs [39]–[43], but focusing in particular on the statement in [42], on the grounds that it effectively and improperly strayed into the ultimate issue to be decided at trial — namely, whether Mr Kuru did sanction the relevant events.
Ellis J ruled that while there was no difficulty with paragraphs [39]–[41], the evidence at [42] and [43] did go too far by expressing, in substance, that the attack on Mr Ratana was organised gang crime and occurred with Mr Kuru’s sanction.[37] However, she said that the Detective Inspector could lay the foundation for a submission by counsel to that effect by speaking in general terms about his own experience and knowledge of the role of president within gangs.[38] She suggested reframing the particular expression of opinion more contingently and by reference to his experience, also suggesting that he use language such as “in my experience it is unlikely that …”.[39]
Evidence of Detective Inspector Scott at trial
[37]At [16] and [18].
[38]At [17].
[39]At [18].
At trial the Detective Inspector read through his brief of evidence, including the material set out above. However, instead of the material set out at [42]–[44] of his brief, he gave the following evidence:
In my experience a (serious) organised gang crime against another gang would likely occur with the sanction of the president. This is due to the obvious risks and consequences that the particular gang would be exposed to which would likely include intense scrutiny by the Police and serious retaliation by the opposing gang. Another consideration would be the risk of a number of their members being sentenced to periods of imprisonment depending on the particular crime committed.
The Detective Inspector was not cross-examined in relation to his evidence. The evidence was a critical part of the Crown case against the defendants, but most particularly against Mr Kuru. Counsel for the Crown opened their closing address to the jury by describing the evidence as the lens through which all the other evidence had to be viewed, and discussion of that evidence occupied a significant portion of the Crown’s case against Mr Kuru.
The defence did not call their own expert in relation to gang culture and behaviour. This notwithstanding that they had earlier obtained and filed in support of a pre-trial application a brief of evidence from Dr Jarrod Gilbert. Dr Gilbert’s PhD thesis was a study of New Zealand gangs. It was based on extensive research involving long‑term ethnographic observation of gangs and extensive interviews of those in and around the gang scene, including gang members, police and undercover agents. Dr Gilbert has continued to study and publish in this field.
Dr Gilbert’s brief was narrower in focus than Detective Inspector Scott’s, addressing the role of president and how tightly bound by rules gangs in fact are.
Dr Gilbert said that he broadly agreed with Detective Inspector Scott’s statement that the gang president has “the final authority over all chapter business and its members”, which he described as part of the “traditional view” of gangs. However, this was subject to qualifications. He noted that gangs and gang chapters tend to have different internal cultures and ways of operating, and that different leaders will have different leadership styles. Similarly, events may occur quickly and with little or no planning and therefore without the knowledge of the president. He continued:
4.7 This is further complicated by the fact that while gangs have rules that guide behaviour, not all of these rules are evenly applied and often times they may be in conflict with one another.
4.8 Within a realm where ‘might makes right’, those with sufficient strength or mana can act in ways that may not always be ordinarily seen as within the rules.
4.9 In the multitude of instances that may stem from these types of examples, then, it is clear there will be numerous times when our traditional understandings may be confounding rather than illuminating.
4.10 Often during my fieldwork I would speak to gang presidents who were angry, stressed or disappointed by the activities of one of their boys. The gangs certainly have a level of discipline and structure but ultimately they are made up of rebellious and difficult-to-control men.
Relevant principles
In order to be admissible, expert evidence must meet the requirements for admissibility laid out in the following sections of the Evidence Act 2006:
(a)s 7 (evidence that is not relevant is not admissible);
(b)s 8 (evidence will be excluded if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding); and
(c)s 25 (expert opinion evidence is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence or in ascertaining any fact of consequence to the determination of the proceeding).
The relevant principles can be shortly stated. Sections 7 and 8 are provisions that apply to all evidence. Section 7 is concerned with relevance — does the evidence relate to an issue in the proceeding? As this Court said in R v Bain, s 8 is concerned with whether the connection between the evidence and proof is “worth the price to be paid by admitting it in evidence”.[40]
[40]R v Bain [2009] NZSC 16, [2010] 1 NZLR 1 at [39] and [62] per Elias CJ and Blanchard J (with whom Wilson J generally agreed) citing Australian Law Reform Commission Evidence (Interim) (ALRC 26, 1985) vol 1 at [315].
Section 25 governs the admissibility of expert opinion evidence. This provision operates in the following context. Courts normally only receive evidence of facts — witnesses are generally not permitted to go into the witness box and offer their opinion. Section 23 provides that a statement of an opinion is not admissible in a proceeding, except as provided in ss 24 or 25. Section 24 allows a very limited exception for a witness to give a non-expert opinion where it is necessary to enable that witness to communicate, or the fact-finder to understand, what the witness saw, heard or otherwise perceived. Section 25, the provision with which we are concerned, allows opinion evidence given by an expert to be admitted if it meets the substantial helpfulness threshold mentioned above — a test for admissibility that applies in addition to the ss 7 and 8 thresholds.
The distinction drawn between factual and opinion evidence for the purposes of admissibility pre-dates the Evidence Act. It reflected a concern to prevent both the function of the fact-finder from being usurped and court time being wasted by low‑quality or superfluous evidence.[41] Although expert opinion evidence was an exception to the rule against the admissibility of opinion evidence, these underlying concerns still found expression in rules governing its admissibility. First, the expert had to be properly qualified to give evidence on the issue.[42] Secondly, the expert was not permitted to give evidence on the ultimate issue for the jury.[43] There was and is, as Glazebrook J observes, a risk that juries may place too much weight on expert evidence, thus exacerbating the risk of usurping the role of the fact-finder.[44] Thirdly, experts were not permitted to give evidence on matters that are common knowledge.[45]
[41]For a discussion of the pre-Evidence Act 2006 law, see Law Commission Evidence Law: Expert Evidence and Opinion Evidence (NZLC PP18, 1991) at [2] and following.
[42]At [4].
[43]See, for example, Joseph Crosfield and Sons Ltd v Techno-Chemical Laboratories Ltd (1913) 29 TLR 378 (Ch) at 379 as cited in Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at 152, n 1001.
[44]Below at [138] and [151]. See also, more generally, Glazebrook J’s discussion of usurpation of the jury’s role: below at [163]–[173].
[45]See Regina v Turner [1975] QB 834 (CA) at 841, offering what Mahoney on Evidence describes as “the classic exposition” of the rationale for the rule: McDonald and Optican, above n 43, at 154.
Following the enactment of the Evidence Act, that Act and in particular s 25 (along with ss 7 and 8) now govern the admissibility of expert opinion evidence. However, the concerns that shaped the approach to the admissibility of expert opinion evidence prior to its enactment remain relevant to the issue of admissibility. The evidence must meet the s 25 substantial helpfulness threshold so that low-quality or low-value evidence is not admitted. While s 25(2)(b) provides that expert opinion evidence is not inadmissible simply because it is about a matter of common knowledge, it remains the case that such evidence will not generally be admitted, as it is unlikely the fact-finder would obtain substantial help from such evidence.[46] Likewise, while s 25(2)(a) provides that expert opinion evidence is not inadmissible simply because it is about an ultimate issue to be determined by the fact-finder, the rule remains relevant to issues of admissibility. In Pora v R the Privy Council said that while the ultimate issue rule may have been modified by the Evidence Act, it had not been abolished and still had a part to play in the decision as to whether a particular species of expert evidence was admissible.[47] It continued:[48]
It appears to the Board that, in general, an expert should only be called on to express an opinion on the “ultimate issue” where that is necessary in order that his evidence provide substantial help to the trier of fact.
[46]See D (CA95/2014) v R [2015] NZCA 171 at [28]. See also Donald L Mathieson (ed) Cross on Evidence (looseleaf ed, LexisNexis) at [EVA25.10(b)] where the authors observe that the common knowledge rule “continues to operate within the context of substantial helpfulness”.
[47]Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [26].
[48]At [27].
Whether the evidence will be substantially helpful therefore requires consideration of the relevance, reliability and probative value of the evidence.[49] As observed in Cross on Evidence:[50]
In practice, relevance, reliability and probative value often overlap. This serves to reinforce the holistic nature of the inquiry required of a court when considering the admissibility of expert evidence in terms of substantial helpfulness.
[49]Mahomed v R [2010] NZCA 419 at [35] as approved by the Privy Council in Pora, above n 47, at [41].
[50]Mathieson, above n 46, at [EVA25.4].
It is, as the Crown submits, the case that there is no bar to police giving expert evidence where the expertise is gained through practical experience. Such evidence may be useful as to the meaning of particular words or the significance of wearing clothing of a particular colour, where that is at issue in the proceeding. However, a police officer who gives such evidence must be properly qualified as an expert.[51] They must fully comply with the duties that apply to all expert witnesses — duties that were conveniently summarised in the case of National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) as follows:[52]
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption on which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. …
6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.
…
[51]We agree with the discussion of Glazebrook J on this issue: below at [139]–[141].
[52]National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 (QB) [The Ikarian Reefer] at 81–82 (citations omitted).
These are rules that were developed to manage the risks associated with the admission of expert opinion evidence, referred to earlier. The Ikarian Reefer was a commercial case, and the principles enunciated there can be seen to form the basis of the code of conduct for expert witnesses contained in sch 4 to the High Court Rules 2016. Nevertheless, they apply, with necessary modifications, in criminal cases.[53] Indeed Te Aka Matua o te Ture | the Law Commission has recommended that the Rules Committee | Te Komiti mō ngā Tikanga Kooti, the statutory body responsible for rules of court,[54] adopt such a code for use in criminal proceedings.[55]
[53]Compare the principles set out in R v Carter (2005) 22 CRNZ 476 (CA) at [47].
[54]The Rules Committee | Te Komiti mō ngā Tikanga Kooti is responsible for the rules of court of the District Court and the senior courts.
[55]Te Aka Matua o te Ture | Law Commission The Second Review of the Evidence Act 2006 | Te Arotake Tuarua i te Evidence Act 2006 (NZLC R142, 2019) at [11.12], [11.16] and [11.32].
The application of the principles to the conduct of expert evidence given by police officers was discussed by the Privy Council in Myers v The Queen in the following terms:[56]
[60] Compliance with these exacting standards can be difficult for a police officer who is effectively combining the duties of active investigator (if not of the current case) with those of independent expert. It is particularly important that such a witness should fully understand that once he is tendered as an expert he is not simply a part of the prosecution team, but has a separate duty to the court to give independent evidence, whichever side it may favour. In particular a police expert needs to be especially conscious of the duty to state fully any material which weighs against any proposition which he is advancing, as well as all the evidence on which he has based that proposition. When considering an application by the Crown to adduce the evidence of a police expert, it is incumbent on the judge to satisfy himself that these duties are recognised, and discharged.
[56]Myers v The Queen [2015] UKPC 40, [2016] AC 314 (emphasis in original).
We note in particular the Privy Council’s observation that compliance with these exacting standards can be difficult for a police officer combining ongoing service to the police with duties to the court. We emphasise, flowing out of this, the care that is needed by police officers providing such evidence to prepare and give their evidence impartially, attaching full weight to the duty to provide their opinion in a candid and balanced way.
Application to this case
We accept, of course, that senior gang members have been known to organise offending by less senior members or prospects, while maintaining enough distance for plausible deniability.[57] This method of operation may not be a matter of common knowledge and, in appropriate cases, juries are likely to find expert evidence as to the operation of gang hierarchy relevant to this issue substantially helpful.
[57]See, for example, Poutai v R [2010] NZCA 182.
We also accept that Detective Inspector Scott was properly qualified to give evidence regarding basic structures operating within gangs and the fact that gangs operate with their own rules — evidence on the “traditional view”. He had extensive involvement in the policing of gangs over a lengthy period of time. We also accept that this experience was sufficient for him to give evidence about the basic leadership hierarchy within gangs and that this evidence would have been substantially helpful, as information not within the general knowledge of a jury. It was plainly relevant to an issue in the case, namely, whether Mr Kuru had joined the common purpose and knew of its essential details — the fact he was president was of course relevant to that.
There were, as Mr Stevenson submitted, limitations to this experience. The information on which the Detective Inspector drew was gathered in the context of law enforcement and inevitably shaped by that. It was not the result of broad study, such as that undertaken by Dr Gilbert. However, these are matters that could have been cross-examined on and drawn out for the jury.
Nevertheless, we accept the appellant’s argument that, when measured against the framework of principles we have set out above, there were significant issues with the Detective Inspector’s evidence that such a crime would likely have occurred with the sanction of the president.[58]
[58]See above at [34].
We start from the position that this was the critical evidence in the case against Mr Kuru. It directly addressed the ultimate issue for the jury — did Mr Kuru know of and had he sanctioned the attack? The Crown after all had no direct evidence on these issues — it was a circumstantial case, and Detective Inspector Scott’s evidence was by far the strongest thread. The risk that the evidence would usurp the role of the jury was therefore present and had to be weighed.
A related point is that the evidence, because of the unqualified form in which it was given, carried a high risk of unfair prejudice in that it invited impermissible reasoning. We would describe the reasoning it invited in the same way as Cull J did in the Court of Appeal:[59]
… Presidents of gangs know about and sanction rival gang attacks; this was a rival gang attack by Black Power on the Mongrel Mob; Mr Kuru is a gang President; and therefore, he must have known [about] and sanctioned this rival gang attack.
The difficulty with this reasoning, as we come to next, is that it is based only on the evidence of the Detective Inspector, who did not, but should have, qualified the evidence which invited this reasoning. Of course, the jury could be directed in relation to the risk of such reasoning. But it is difficult to see such a direction being effective when, absent such qualification by the Detective Inspector, that unfair prejudice is coterminous with the probative force of this aspect of the evidence.
[59]Kuru v R [2023] NZCA 150 (Collins, Muir and Cull JJ) [CA judgment] at [106] per Cull J dissenting.
There were also issues with the probative value of the evidence. First, the Detective Inspector did not acknowledge an important limitation on his expertise. He did not claim to have studied the Whanganui Black Power chapter, nor to have acquired knowledge through the investigation of that chapter over a period of time. Yet he did not record that fact in his evidence.
Secondly, as noted above, the Detective Inspector failed to acknowledge important qualifications upon what was very generally expressed evidence. Or, to put it another way, his evidence was expressed in broad propositions (favourable to the Crown case) and lacked the balance that an expert witness should bring to their evidence. The Detective Inspector’s evidence was, as Dr Gilbert said, about the “traditional view” of how gangs operate in terms of hierarchy and rule enforcement, leading to the critical conclusion regarding the president’s role in sanctioning an attack on another gang. The Detective Inspector failed to acknowledge the possibility that there would be variations in a president’s role between gangs, between regions, between presidents and between different factual scenarios. Nor did he acknowledge critical points made by Dr Gilbert that, although there may be rules, rules can be broken or variably applied and that, at times, events happen spontaneously. We expect that this was information available to the Detective Inspector from his own experience, and, if not, by the time of trial he had access to Dr Gilbert’s brief. It is, in any case, a matter of common sense that there would be such variation. Balanced evidence would have included such a qualification.
Finally, the Detective Inspector’s evidence proceeds on the assumption that the events giving rise to the criminal charge amounted to “(serious) organised gang crime against another gang”. The Detective Inspector’s evidence could be read as expressing an opinion that the offending in question was in fact a “(serious) organised gang crime against another gang” — and therefore as expressing an opinion on the evidence in a way which tended to support the Crown case, but with no proper basis for such an opinion.
Against this background we do not see the Detective Inspector’s evidence regarding the president’s role in sanctioning such an attack as sufficiently reliable or probative to justify admission. To put the matter in s 8 terms, its admission did not justify the price paid for it. The evidence carried with it the risk of unfair prejudice in that it invited impermissible reasoning, and on the most critical issue the jury had to decide. The evidence had limited probative value given both the fact of, and the absence of acknowledgment of, limitations upon the Detective Inspector’s own expertise and upon the very general propositions he expounded. For the same reasons, the evidence was not substantially helpful evidence for the purposes of s 25.
We make some additional observations in relation to the Detective Inspector’s evidence. First, the evidence includes material of an argumentative nature which seems to us to have little relevance or probative value and to create unfair prejudice. We do not propose to go through the evidence line-by-line but merely to give as an example the material set out above in the Detective Inspector’s evidence, which we repeat here for ease of reference:
45. It is not unusual for gangs to promote a public image of being a family or whānau group who claim that their particular gangs are community minded and not criminal organisations.
46. This stance is generally portrayed by the president and often after there has been a serious crime committed which has received negative publicity.
Secondly, the evidence was discursive in nature. Mr Stevenson filed multiple copies of briefs of the evidence given by the Detective Inspector in other proceedings, while drawing our attention to the fact that much of the material was repeated without amendment across the briefs. He also emphasised that the brief included extensive narrative-type evidence about the history of gangs, their culture, their use of violence and their criminal behaviour — material carrying obvious prejudicial effect. It is important to state that, in accordance with the principles of evidence set out above, expert evidence in relation to gangs should be confined to evidence relevant to a matter at issue in the proceeding. Broad-ranging discussions of gangs, their culture (the wearing of gang patches, the chanting of slogans and routine use of violence) and their history should not be admitted simply by way of background when that material is not relevant to a trial issue, particularly given the risk of unfair prejudice such evidence carries with it.
This takes us to our third observation — and connects to the point made by Mr Stevenson — that the Detective Inspector failed to make explicit, as he was required to do, the material on which he based his opinion (Mr Stevenson citing the passage in Myers set out above).[60] Mr Stevenson noted that some of the evidence in this case strayed into the category the Privy Council cautioned against when it said that “care must be taken that simple, and not necessarily balanced, anecdotal experience is not permitted to assume the robe of expertise”.[61] When there is no indication as to the evidential basis for the evidence, counsel is at an unfair disadvantage, Mr Stevenson submits, if they cannot identify, let alone test, the evidential basis for the opinion. He adds that, since much of this evidence will be a narration of what the officer has been told by others (and therefore hearsay), particular concerns about reliability arise, meaning there is need for care in identifying the source of information used as a basis for the expert’s opinion.
[60]See above at [47].
[61]Myers, above n 56, at [58].
We think it can certainly be inferred from the evidence regarding gang hierarchy that the Detective Inspector was drawing on his work experience over many years as the basis for that evidence. Having said that, we accept that the more generalised and discursive the evidence offered, the more significant the absence of a clear evidential basis for that evidence becomes. This is because of the higher likelihood that it will create unfair prejudice. We take that point no further.
As to Mr Stevenson’s arguments in relation to propensity evidence, the evidence does not meet the statutory definition of “propensity evidence” because it is not based on Mr Kuru’s prior conduct.[62] We note however that the evidence does engage similar considerations to those underlying the special rules governing the admissibility of propensity evidence about defendants; that is, that irrelevant and/or unfairly prejudicial evidence not be admitted. But these considerations are already reflected in our finding that the evidence was not admissible.
[62]See the reasons of Glazebrook J below at [180]. See also Evidence Act, s 40(1)(a).
Finally, because it may assist in future cases, it is appropriate to state that we consider that the evidence on gang hierarchy would have been admissible in the case against Mr Kuru under s 25 if limited and qualified in the following ways:
(a)The Detective Inspector should have noted any limitations on his expertise — including that he had not studied or investigated the particular chapter of the gang and so could not comment on the operation of hierarchy within Mr Kuru’s chapter of the Black Power gang.
(b)He should have noted the limitations and qualifications that exist in relation to the applicability of the “traditional view” of gang hierarchy to any situation.
(c)He should have identified with more particularity the material upon which he drew in reaching his opinion. By this we mean that the officer should have identified whether he was drawing on courses attended or published papers (identifying the courses or papers), and/or experience gained on the job.
(d)While he could have included a description of the decision-making hierarchy in gangs, and in particular that the president has final authority over all chapter business and its members and that the sergeant‑at‑arms enforces the president’s orders, he should not have extended his evidence, as he did, to include an assessment of whether the president was likely to have sanctioned the particular type of conduct that the Crown alleged.
(e)He should not have given evidence that suggested the offending was serious organised gang crime when the level of organisation involved was the key trial issue.
(f)His evidence should have been confined in scope, avoiding a general narrative on gangs and argumentative material.
To conclude on this point, we have found that the evidence of Detective Inspector Scott that offending of the nature alleged by the Crown was likely to have been sanctioned by the president was not admissible. We note that no objection was taken to the admission of this evidence at trial. However, issues of admissibility of evidence involve a question of law. Whether its admission was objected to or not, its admission amounted to an error of law.
That being our conclusion, it is necessary to address whether this has given rise to a miscarriage of justice, noting that the trial Judge took some care to direct in relation to the proper use of this evidence. The Judge gave the standard direction in relation to expert evidence and drew the jury’s attention to the fact that the evidence assumed the attack was premeditated and organised, which was disputed by the defence. The direction did not, however, identify and address the risk of impermissible reasoning set out above.[63] And in any event the evidence was so central to the Crown case that we doubt any direction could have adequately addressed the risk that the erroneous admission of this evidence affected the outcome of the trial.[64]
Was the jury’s verdict unreasonable?
[63]Above at [54].
[64]Criminal Procedure Act, s 232(4)(a).
We agree with Glazebrook J’s conclusion, and the analysis she sets out in support of that conclusion, that no reasonable jury could have been satisfied of Mr Kuru’s guilt beyond reasonable doubt.[65] In particular we agree that the analysis should include the admissible portions of Detective Inspector Scott’s evidence, which are as she sets out.[66] We would add that the evidence should have included a description of the limitations and qualifications that exist in relation to the applicability of the “traditional view” of gang hierarchy to any situation. And, of course, the analysis would exclude those portions that have been found to be inadmissible.
[65]Below at [312].
[66]Below at [282].
In our view, Cull J accurately summarised the deficiency in the evidence against Mr Kuru in the two passages of the Court of Appeal judgment set out by Glazebrook J below at [262]–[263].[67] The jury could not reasonably have treated Detective Inspector Scott’s expert evidence (expressed in admissible form) as making up for these very significant deficiencies in the evidence. That being the case, the appropriate orders for this Court to make are orders setting aside the conviction for manslaughter and directing that a judgment of acquittal be entered.
Result
[67]See CA judgment, above n 59, at [94] and [95].
The appeal is allowed.
The appellant’s conviction for manslaughter is set aside.
An order is made under ss 233(3)(a) and 241(2) of the Criminal Procedure Act 2011 that a judgment of acquittal be entered.
GLAZEBROOK J
Table of Contents
| Para No | |
| Introduction | [72] |
| Background | [80] |
| Directions on party liability | [97] |
| The legislation | [97] |
| The jury directions | [98] |
| Mr Kuru’s submissions | [100] |
| The Crown’s submissions | [101] |
| My assessment | [102] |
| Detective Inspector Scott’s evidence | [105] |
| Challenge to admissibility | [107] |
| The evidence given at trial | [111] |
| Directions of the trial Judge | [116] |
| Alleged common plan and role of Mr Kuru | [118] |
| Court of Appeal decision | [125] |
| Mr Kuru’s submissions | [128] |
| The Crown’s submissions | [134] |
| Police expert evidence on gangs | [138] |
| Qualification as an expert | [139] |
| Duties of an expert | [142] |
| Relevance and substantial helpfulness | [150] |
| Section 8 | [159] |
| Ultimate issue: overseas authorities | [160] |
| Was the evidence admissible in this case? | [174] |
| Conformity with the pre‑trial ruling | [175] |
| Hearsay and propensity evidence | [177] |
| Qualification as an expert | [181] |
| Duties of an expert | [182] |
| Relevance and substantial helpfulness | [185] |
| Section 8 | [193] |
| Conclusion | [197] |
| Should the appeal be allowed on this ground? | [199] |
| Unreasonable verdict | [203] |
| The law | [205] |
| Evidence and submissions on the role of Mr Kuru | [210] |
| Role as leader | [212] |
| Mr Runga’s role | [214] |
| Proximity | [217] |
| Mr Kuru leaves home | [219] |
| Mr Kuru on Tiki Street | [222] |
| Mr Kuru returns home | [230] |
| Meeting the next day | [236] |
| Other events following the shooting | [240] |
| Mr Friesen’s evidence | [248] |
| Summing up | [251] |
| Court of Appeal decision | [260] |
| Submissions of Mr Kuru | [264] |
| Crown submissions | [272] |
| My assessment | [282] |
| Proximity | [285] |
| Mr Kuru leaves home | [286] |
| Mr Kuru on Tiki Street | [289] |
| Mr Kuru returns home | [295] |
| Meeting the next day | [296] |
| Other events following the shooting | [299] |
| Overall assessment | [300] |
| Conclusion | [312] |
| Result | [313] |
Introduction
On 25 November 2021, the appellant, Mr Damien Kuru, was convicted of manslaughter after a jury trial before Ellis J. His appeal against that conviction was dismissed by the Court of Appeal on 5 May 2023.[68]
[68]Kuru v R [2023] NZCA 150 (Collins, Muir and Cull JJ) [CA judgment] at [81] per Collins and Muir JJ (Cull J dissenting).
The victim was Mr Ratana, a senior patched member of the Mongrel Mob. Mr Ratana had been staying with his partner, Ms Herewini, who was living at 144 Pūriri Street, Castlecliff, Whanganui. Castlecliff is considered Black Power territory. Tensions had been building over his presence in the area, culminating in a group of Black Power members going to Ms Herewini’s house on 21 August 2018 with the aim of intimidating Mr Ratana into leaving Castlecliff. The group was armed with various weapons, and, in the course of the confrontation, Mr Ratana was shot and killed.
Seven Black Power members were charged with murdering Mr Ratana. Before trial Mr Rogerson pleaded guilty as a party to murder. Three other defendants (Messrs Box, Fantham-Baker and Anthony Kuru)[69] pleaded guilty to manslaughter. Mr Newton had the charge against him dismissed pursuant to s 147 of the Criminal Procedure Act 2011.
[69]I understand that Mr Anthony Kuru is not related to the appellant, Mr Damien Kuru.
The trial proceeded against Mr Kuru, the president of the Black Power chapter, and Mr Runga, the sergeant-at-arms.[70] Mr Friesen, at the relevant time a patched member of Black Power, was granted immunity from prosecution and gave evidence for the Crown at their trial. Mr Kuru and Mr Runga were acquitted of murder but convicted of being parties to manslaughter.
[70]The trial Judge was satisfied (although this was contested at trial) that Mr Runga had been acting as the chapter’s sergeant‑at‑arms at the time of the shooting: R v Kuru [2022] NZHC 309 (Ellis J) [HC sentencing notes] at [20].
Mr Kuru’s application for leave to appeal was granted by this Court on 10 August 2023.[71] His appeal is advanced on three grounds:[72]
(a)that the jury’s verdict was unreasonable;
(b)that the evidence of Detective Inspector Scott caused a miscarriage of justice; and
(c)that the jury was misdirected regarding party liability.
[71]Kuru v R [2023] NZSC 102 (Glazebrook, O’Regan and Kós JJ).
[72]At [1].
I deal with these issues in reverse order after setting out the events leading up to the shooting in more detail.[73]
[73]I discuss the evidence relating to Mr Kuru’s alleged role when assessing whether the verdict of the jury was unreasonable.
In summary, I conclude that the Judge did not misdirect the jury on party liability. I also conclude that part of the evidence of Detective Inspector Scott was not admissible. The inadmissible evidence created a real risk that the outcome of Mr Kuru’s trial was affected.[74] Further, I consider that, having regard to the admissible evidence, the verdict of the jury was unreasonable.[75]
[74] Criminal Procedure Act 2011, ss 240(2), 232(2)(c) and 232(4)(a).
[75] Sections 240(2) and 232(2)(a).
This means that the appeal must be allowed, the conviction set aside and a judgment of acquittal entered.[76]
Background
[76]Sections 241(2), 233(2) and 233(3)(a).
As indicated above, tension had been building with regard to the presence of Mr Ratana in Castlecliff. Black Power members had carried out “drive-bys” of Ms Herewini’s home while shouting Black Power slogans. On 14 August 2018 Black Power members had thrown a crowbar at Mr Ratana’s car. Mr Ratana responded by producing a firearm, causing the Black Power members to back down.
The Crown case was that, on the morning of 21 August 2018 at about 8.50 am, Mr Runga went to visit Mr Friesen, who was staying with family in Matipo Street.[77] Matipo Street is a cul-de-sac, and the house where Mr Friesen was staying was near the street’s dead end. Towards the middle of Matipo Street is an intersection with Tiki Street. Tiki Street leads to Pūriri Street, where Mr Ratana was staying with Ms Herewini. Mr Kuru’s house was at 60 Matipo Street and was regarded as the Black Power chapter’s headquarters.[78] According to the Crown’s submissions, it is approximately 242 metres from 144 Pūriri Street.
[77]This was based largely on the evidence of Mr Friesen. This evidence was generally challenged by Mr Runga but would most likely have to have been accepted by the jury in major part in order for Mr Runga to be convicted.
[78]HC sentencing notes, above n 70, at [9].
Another relevant location is Te Kura o Kokohuia, a nearby school. Mr Kuru had an appointment at the school at 10 am on the morning of the shooting. The school is located on Matipo Street, some 170 metres from 60 Matipo Street on the other side of the intersection with Tiki Street. The most direct route from 60 Matipo Street to Te Kura o Kokohuia would be directly along Matipo Street.
A further important piece of context was that, on the morning of Mr Ratana’s shooting, an eviction was taking place at 33 Matipo Street, on the other side of the Matipo/Tiki Street intersection from Mr Kuru’s house. One member of the eviction group, a locksmith, Mr McKenzie, observed Black Power members walking from Matipo Street into Tiki Street prior to the shooting. Another member of the eviction party, the Court bailiff, Mr O’Neill, took a number of photographs of Black Power members walking from Tiki Street into Matipo Street following the shooting.
A diagrammatic representation of the relevant locations is in the appendix to this judgment; it is not to scale and only designed to give a general orientation of the area.
Mr Friesen’s evidence at trial was that when Mr Runga came to visit him on the morning of the shooting, he said “that asshole [is] up the road” and asked “[s]hall we go and suss [him] out … ?” Mr Friesen said that Mr Runga showed him a sawn-off double-barrelled shotgun that was on the floor of the Nissan Primera he was driving. Mr Friesen wanted to drop his children at a family member’s home and was told by Mr Runga to meet him and the other Black Power members later.
Mr Runga and Mr Fantham-Baker, whose house was also in Matipo Street, then drove to Mr Runga’s house in Rimu Street, Castlecliff. Present at Mr Runga’s house were Mr Newton and Mr Box.[79] Mr Rogerson and Mr Anthony Kuru arrived at Mr Runga’s address soon after.
[79]The charges against Mr Newton were dismissed prior to trial under s 147 of the Criminal Procedure Act: R v Newton [2021] NZHC 2622 at [61]. This was primarily on the basis that there was insufficient evidence that he was present at 144 Pūriri Street at the time of the shooting: at [41] and [59]. Whether or not he was present at Mr Runga’s house when the group assembled there was not discussed in the judgment.
At about 9.20 am the Black Power group left Mr Runga’s home in a Nissan Primera and a Holden Commodore. Those in the Nissan Primera initially drove to 144 Pūriri Street where the vehicle stopped. One member of the gang got out of the car and started directing abuse towards the occupants of Ms Herewini’s house. The attempt to intimidate Mr Ratana was disrupted, however, when a bus stopped close to 144 Pūriri Street. This was between roughly 9.33 am and 9.34 am according to GPS data from the bus.[80]
[80]A timeline of key events was produced as an exhibit at trial by the Crown.
The two cars then briefly stopped at the intersection of Tiki and Matipo Street. A group of Black Power members, including Messrs Box, Fantham-Baker and Anthony Kuru, walked to 144 Pūriri Street. They were armed with poles, batons and a hammer and were yelling Black Power slogans as they neared the house. As the men approached, Ms Herewini was yelling at them to “[f … ] off”. Mr Rogerson drove the Holden Commodore to park in Pūriri Street near Ms Herewini’s home. Mr Friesen also drove to the scene in a Hyundai Coupé.
Mr Runga’s role in the shooting was disputed at trial. It was alleged by the Crown that Mr Runga drove the Nissan Primera and also parked close to Ms Herewini’s home. But it is unclear on the evidence, and unclear if the jury accepted, that Mr Runga drove the Nissan Primera to the scene and subsequently drove it back to Matipo Street to wait for the foot party to return. The trial Judge said in sentencing that the evidence at trial “gave rise to a real doubt about whether the Nissan Primera was at the scene at all”.[81] An alternative possibility is that the jury was of the view that the Nissan Primera was left on Matipo Street and that Mr Runga was part of the foot party,[82] although he did not appear in the photographs taken showing the foot party returning.[83]
[81]HC sentencing notes, above n 70, at [21].
[82]The jury had been told that they had to be satisfied that Mr Runga was at 144 Pūriri Street in order to convict him: at [22].
[83]See above at [83]. Although the trial Judge noted in her summing up that: “it is agreed [Mr Runga] is not one of the four men on foot and there is no sighting of him leaving by any other way”.
The Crown case was that Mr Runga still had possession of the sawn‑off, double-barrelled shotgun he had earlier shown to Mr Friesen and took it with him to Pūriri Street, while Mr Rogerson took a full-length shotgun. The Crown alleged that Mr Rogerson’s shotgun was loaded with conventional shotgun pellets and Mr Runga’s gun was loaded with the slug that killed Mr Ratana. But the jury cannot have accepted that version of events, given that Mr Runga was acquitted of murder.
These disputes about Mr Runga’s involvement aside, the Crown case was that, when the Black Power members who walked to 144 Pūriri Street arrived, Mr Anthony Kuru yelled out to Mr Ratana: “You’ve got a week to get out of the Cliff or you’re dead.” The men on foot moved up the driveway and began to strike Mr Ratana’s car with their weapons, still yelling.
At about 9.35 am Mr Ratana came out of Ms Herewini’s home. He was carrying a sawn-off loaded shotgun and wearing Mongrel Mob regalia. Most of the Black Power members took cover. One member of the Black Power group fired a shotgun that was loaded with a single lead slug. The slug hit Mr Ratana in the neck and instantly killed him. The weapon that fired the slug has never been recovered.[84] Mr Rogerson then fired two shots from his shotgun at the house, spraying it with pellets. Those shots were intended to provide cover to the members of the Black Power group who were on foot and needed to get away from the scene.
[84]As stated above, the Crown contended that Mr Runga fired the fatal slug: see above at [90].
Loud yelling and banging occurred at different points throughout the altercation. A witness on Kōwhai Street, about 50 to 100 metres from 144 Pūriri Street, heard multiple male voices yelling angrily and the sound of metal banging on wood before he heard the shots. A witness on Maire Street, about 700 metres away, heard yelling after the shots.[85]
[85]This was a land surveyor who described hearing “yelling and screaming” following the shots. The surveyor was working on Maire Street (roughly east of 144 Pūriri Street and 60 Matipo Street).
According to the notice of admissions of fact agreed by the parties, Mr Ratana died from the gunshot at approximately 9.35 am. A visitor to a neighbouring house on Pūriri Street stated at trial that she made an emergency call at around 9.38 am.[86] According to call records, and his testimony at trial, another witness who was driving up Pūriri Street made an emergency call at 9.39 am. Also according to call records, Ms Herewini made three emergency calls between around 9.40 and 9.42 am.[87] Ms Gibson, the solicitor who was part of the Matipo Street eviction party, said at trial that she made an emergency call at 9.41 am.
[86]No record of this call appeared in the call records produced at trial.
[87]The first call does not appear to have connected and the second only lasted eight seconds.
After the shooting, the members of the Black Power group dispersed. Mr Friesen drove away in the Hyundai Coupé and Mr Rogerson drove away from the scene in the Holden Commodore. At around 9.37 am the Holden Commodore and the Hyundai Coupé were captured by CCTV travelling east on Pūriri Street, away from 144 Pūriri Street.[88] The Hyundai Coupé turned off Pūriri Street and travelled in a roughly southerly direction, away from Matipo Street. At around 9.50 am, the Holden Commodore parked in a carpark outside shops north of Pūriri Street and, at around 10.05 am, the Holden Commodore was captured travelling north, out of Whanganui.
[88]That is, away from the Tiki Street intersection.
Messrs Box, Fantham-Baker and Anthony Kuru walked back to Matipo Street. They got into the Nissan Primera and left the area. Mr Runga had either driven the Nissan Primera back to Matipo Street and was waiting for the foot party (the Crown’s theory), or he had walked back with the foot party to the Nissan Primera, which had been parked earlier on the other side of the street from 60 Matipo Street.[89] Around 9.39 am, according to the time recorded by his iPhone, the bailiff, Mr O’Neill, took photographs of the Black Power members walking from Tiki Street into Matipo Street.[90] The photographs also captured the Nissan Primera parked (at around 9.39 am) and in motion, moving towards the position of the photographer (at around 9.40 am).
Directions on party liability
The legislation
[89]See above at [89].
[90]See above at [83] and below at [232].
Section 66(2) of the Crimes Act 1961 provides as follows:
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.
The jury directions
The common purpose alleged in this case (as defined in the question trail given to the jury) was to go to the house where Mr Ratana was staying to damage his property and to threaten him, accompanied by firearms. Mr Runga was said to have participated in prosecuting that unlawful purpose by being one of those who went to the address of the victim. Mr Kuru was said to have participated by “ordering, sanctioning, or authorising that plan”. “Prosecute” was defined as “to continue with a course of action [here, going to 144 Pūriri Street to damage Mr Ratana’s property and threaten him, accompanied by firearms] with a view to its completion”.
Assuming that the jury was satisfied about the existence of the common purpose, that the two men were part of the common purpose and that Mr Ratana’s shooting occurred in the course of the prosecution of that common purpose, the question trail for both men then asked whether the jury was sure that the two men appreciated or foresaw that the victim would be murdered (meaning shot with murderous intent) as a probable consequence of the prosecution of the common purpose.[91] If that question (foresight of murder) was answered in the negative, the question trail then asked whether the jury was sure that Mr Kuru and/or Mr Runga foresaw as a probable consequence of the prosecution of the common purpose that there would be an unlawful shooting, in which case the relevant defendant would be guilty of manslaughter. “Probable consequence” was defined in the question trail as “something that might well happen”.
Mr Kuru’s submissions
[91]The trial Judge also directed the jury on the possibility of self‑defence, but the jury must have rejected this: HC sentencing notes, above n 70, at [24]–[25].
Mr Kuru submits that the Judge’s directions were in error in two respects. It is submitted that, for a party to be liable for manslaughter under s 66(2), they must have foreseen death as a probable consequence of the common purpose. Secondly, it is submitted that the term “probable consequence” ought to follow its ordinary meaning. In his submission that requires, at least, that the consequence is foreseen to be more likely than not.
The Crown’s submissions
The Crown submits that the Court of Appeal was correct to hold that all that had to be foreseen was an unlawful act causing more than trivial harm.[92] The Crown submits that the directions overstated the mens rea for a party to manslaughter under s 66(2), but in a manner favouring Mr Kuru. The Crown also notes that there have been decades of judicial decisions favouring the “could well happen” meaning, without legislative intervention.
My assessment
[92]CA judgment, above n 68, at [78] per Collins and Muir JJ. This was based on the majority’s reasons in the Court of Appeal in Burke v R [2022] NZCA 279, (2022) 30 CRNZ 387 at [66(a)] per Brown and Moore JJ.
Since the hearing of the appeal, this Court has released its decision in Burke v R.[93]In Burke this Court held that foresight of death is not necessary for a conviction for manslaughter under s 66(2),[94] but that, in the circumstances of that case, a weapons direction was required.[95] In addition, the jury “had to be satisfied that Mr Burke knew an assault of the type that actually occurred was a probable consequence of the prosecution of the common purpose”.[96]
[93]Burke v R [2024] NZSC 37, [2024] 1 NZLR 1.
[94]At [172] per O’Regan, Williams and Kós JJ. Winkelmann CJ and Glazebrook J dissented on this point: at [244] per Winkelmann CJ and [316] per Glazebrook J.
[95]At [142] per O’Regan, Williams and Kós JJ, [240] per Winkelmann CJ and [252] per Glazebrook J.
[96]At [142] per O’Regan, Williams and Kós JJ (emphasis added).
This case is similar to Burke[97] and also required a weapons direction. There was no misdirection in this regard because the common purpose was defined as including the carrying of firearms (essentially the equivalent of a weapons direction). Again as in Burke, it was necessary for Mr Kuru to foresee the type of assault which actually occurred: an unlawful shooting.[98] The trial Judge’s direction accorded with this.[99]
[97]I note, however, that, unlike in Burke, it was not part of the plan to cause injury to the victim.
[98]On the facts, the only relevant weapons were firearms.
[99]Contrary to the submission of the Crown, the Court of Appeal in this case was not correct to hold that all that had to be foreseen was an unlawful act causing more than trivial harm: see above at [101].
In Burke this Court also rejected the submission that “could well happen” was not a suitable explanation of “probable consequence”.[100] This means that the Judge’s direction in this regard was also correct.
Detective Inspector Scott’s evidence
[100]Burke v R, above n 93, at [88]–[89] per O’Regan, Williams and Kós JJ and [251] per Glazebrook J. Winkelmann CJ dissented on this point: see at [230]–[238]. The phrase “might well happen”, which was used in the question trail, has the same meaning as “could well happen”.
I now turn to the next substantive ground of appeal: the issue of the admissibility of the evidence given by Detective Inspector Scott, a police witness called by the Crown to give expert evidence on the behaviour of gangs.
First, I outline the admissibility challenge to his evidence pre‑trial. I then summarise the evidence given at trial (in relevant part) as well as the directions given by the Judge and discuss the evolving nature of the common plan alleged by the Crown. I then summarise the Court of Appeal decision and the submissions of the parties. After this, I discuss the criteria for admissibility of police expert evidence on gangs. Then, I discuss some overseas cases of particular relevance to the issues in this case. Finally, I assess whether Detective Inspector Scott’s evidence was admissible and the consequences if it was not.
Challenge to admissibility
A challenge to the admissibility of Detective Inspector Scott’s evidence was dealt with by the trial Judge prior to trial.[101] The Judge noted that the proposed evidence was largely generic about gangs in New Zealand but there was also some “more specific (but nonetheless general) evidence about the Mongrel Mob and Black Power”.[102] Objection was taken to the following paragraphs of Detective Inspector Scott’s proposed evidence:[103]
39.The President is the figurehead of the gang or chapter, and is the chairman at meetings.
40.In some gangs the President can also be known as the ‘Prez or Captain’.
41.He is a senior member who has developed into the recognised leader usually through a combination of personal strength, leadership skills and personality. He has the final authority over all chapter business and its members.
42.An organised gang crime against another gang would only occur with the sanction of the president.
43.The president’s authorisation would be required due to the obvious risks and consequences that the particular gang would be exposed to which would likely include intense scrutiny by the Police and serious retaliation by the opposing gang.
[101]R v Fantham‑Baker [2021] NZHC 2632 [Pre-trial admissibility ruling].
[102]At [7].
[103]The Crown had agreed that the two paragraphs following ([44] and [45]) would be omitted: at [7], n 3.
The Judge noted that Detective Inspector Scott’s expertise was not in issue. Nor was it contested that gang structures and obligations were relevant and that jurors were unlikely to be familiar with these.[104] This meant that the evidence on these matters was likely to be of substantial help to the jury.
[104]At [15]. The Judge encouraged the parties to explore the extent to which such information could be conveyed through a s 9 statement.
The Judge, however, agreed that paragraphs [42]–[43], and [42] in particular, went too far. She said:[105]
[16] … Paragraph 42 would effectively suggest to the jury that DI Scott was expressing the expert view that:
(a)the attack on Mr Ratana was an “organised gang crime”; and
(b)it occurred with the President’s (Mr Kuru’s) authority.
[17] The extent to which the confrontation in this case was planned or organised in any significant way will need to be established by reference to other evidence. If it was, there is plainly a submission to be made that in a Chapter with a relatively small membership, it is unlikely that there would be such a confrontation without the President’s knowledge or authorisation. DI Scott can legitimately lay the foundation for that submission by speaking in general terms about his experience and knowledge of a President’s role. But in my view he can go no further than that.
[18] There is, accordingly, no difficulty with paragraphs 39 to 41. But to the extent DI Scott wishes to opine on the matters in paragraphs 42 and 43, they need to be reframed in a more contingent way, and by reference to his experience (“in my experience it is unlikely that ….”). Whether counsel for Mr Kuru will then need to call evidence in response from Dr Gilbert will remain a matter for them.
[105]Footnote omitted and emphasis in original.
On the Crown’s submission, Mr Kuru’s leadership of the gang was evident once he knew of Mr Ratana’s death. It was shown in his actions fortifying 60 Matipo Street, giving instructions to his members and attempting to manage the response from the Mongrel Mob. It would be strange, the Crown submits, if the consequences of the death were his business, but not the dangerous conflict which had caused it.
Overall, it is submitted that there was a strong case for party liability. It was reasonable for the jury to conclude, based on the evidence of his actions, that Mr Kuru was part of the common unlawful purpose of intimidating Mr Ratana at his home. Indeed, it is submitted that Detective Inspector Scott’s evidence on gang structures had limited work to do.
My assessment
I must deal with this ground of appeal taking into account only the evidence that was admissible. This will include the evidence of Detective Inspector Scott as to the role of a president and that of sergeant-at-arms (assuming it was suitably qualified, see above at [182]–[184]). But it will not include his opinion on the likelihood that a president would have known about and sanctioned “a (serious) organised gang crime” against a rival gang member.[298]
[298]See above at [111]–[115] and [196]–[197].
The Crown would have been entitled, on the basis of the parts of Detective Inspector Scott’s evidence that were admissible (namely the evidence as to the role of the president and the sergeant-at-arms), to make the submission it did: that Mr Kuru must have known about the attack and been part of the plan. I comment, however, that, had the only evidence against Mr Kuru been Detective Inspector Scott’s evidence about the role of the president and the sergeant-at-arms, no reasonable jury could have come to the conclusion (beyond a reasonable doubt) that he did know of and authorise the attack. This means that the evidence of his actions and the inferences the jury was asked to draw from Mr Kuru’s actions before and after the shooting were vital. I must therefore analyse that other evidence to decide whether or not the verdicts were unreasonable.
I do so under the headings I have used when discussing the evidence at trial and then make an overall assessment. In summary, I conclude that, without Detective Inspector Scott’s evidence on the ultimate issue, the Crown case was in fact very weak.[299] It rested on circumstantial evidence from which the jury could draw two equally available inferences. To decide between them would require impermissible speculation. I agree with Cull J’s comments reproduced above at [261]–[263].
Proximity
[299]This is reflected in the trial Judge’s assessment, set out above at [117], that Detective Inspector Scott’s evidence was “quite an important plank of the Crown case”.
The Crown submission that Mr Kuru’s involvement can be inferred from the assembly near his house in Matipo Street does not stand scrutiny. I note the evidence of other meetings of Black Power members elsewhere in the area.[300] While I accept the evidence of a brief assembly on the corner of Tiki and Matipo Streets after the arrival of the bus had disrupted the first attempt, and that the foot party set out for 144 Pūriri Street from there, there is no evidence that Mr Kuru was present. In fact, there is positive evidence against this: none of the witnesses of the gathering claimed to have seen him.[301]
Mr Kuru leaves home
[300]See above at [218].
[301]See above at [265].
The Crown relied on Mr Kuru being out on the street by 9.35 am. It accepts that Mr Kuru had an appointment at his son’s school but says that the jury could eliminate that as a reason for his being on Matipo Street, as he would have been unreasonably early for his appointment.
While I accept that, had he gone directly to the school, this would have taken only some five minutes (at most), I do not accept the submission that leaving some 15–20 minutes early to make the appointment could automatically lead to the conclusion that he must have left the house because he knew about the plan.[302] Some people like to be early for appointments. Some people like to leave leeway for unexpected delays (for example meeting a friend or neighbour on the way). Mr Kuru being early therefore is not in itself sufficient to reject, as a reasonable possibility, that his explanation may have been true.
[302]This is assuming that I accept the Crown submission that he was out on the street by 9.35 am and did not need to leave his house any sooner than 9.50 am: see above at [220]. Defence counsel had submitted in closing that he had likely left home near to 9.40 am, but this timing does not seem to accord with the agreed statement of facts, which had 9.35 am as the time of the fatal shot: see above at [94].
There is also the fact that it was common ground that it was a genuine school appointment that Mr Kuru had apparently booked. It is unclear why he would book a school appointment as an alibi, only to leave early and not attend the appointment. If Mr Kuru had planned the intimidation, and wanted to use the school appointment as cover, I accept his submission that he could simply have orchestrated the attack to occur while he was at the appointment.[303]
Mr Kuru on Tiki Street
[303]See above at [229].
I note first that, while the Crown case was not dependent on Mr Kuru being present on Pūriri Street, there is no evidence, besides that of Mr Edwards, that he was there, or in the company of any of the foot party at any time before, or indeed immediately after, the shooting. The jury could not reasonably have relied on the statement by Mr Edwards in his examination in chief that he saw Mr Kuru with the group of Black Power members outside 144 Pūriri Street, given that he retracted his evidence in cross‑examination and gave evidence at trial contrary to his earlier police statements.[304] Ms Herewini (who knew Mr Kuru) did not see him there, and Mr Friesen (whom the trial Judge found credible) stated that he was not part of the group.[305] Ms Burton also did not see him with the rest of the foot party,[306] and the eviction party described gaps of between 10 and 20 seconds between seeing Mr Kuru and those on foot.[307]
[304]See above at [223].
[305]See above at [248]–[250].
[306]See above at [224].
[307]See above at [231].
Putting the claim that Mr Kuru was on Pūriri Street to one side, I now consider his presence on Tiki Street. The Crown makes the point that Tiki Street was not a direct route to the school and therefore that his appointment with the principal did not provide Mr Kuru with a reason for being outside Ms Burton’s house, coming back down Tiki Street around the time of the third gunshot.
Mr Kuru’s statement to the police said that he was “on [his] way to a meeting at [his] son’s school … when [he] heard the gun‑shots”. The implication from this statement is that he went up Tiki Street because he heard the shots. I also note Mr Kuru’s submission before us that the noise preceding the shots could have drawn him up Tiki Street. There would also have been an interval between the fatal shot and the covering shots, although this was probably a matter of seconds.[308]
[308]Some witnesses said around five seconds. Another said 20 seconds.
While Mr Kuru’s presence on Tiki Street is suspicious, particularly because he was seen by Ms Burton walking back towards Matipo Street at the time of the third shot, I consider that the jury could not discount as a reasonable possibility that he had been drawn up Tiki Street either by the yelling or by hearing the first shot.
The Crown also relied on Mr Kuru’s demeanour when talking to Ms Burton.[309] I consider this is at least as consistent with Mr Kuru knowing about the intimidation plan beforehand as it is with him not knowing. If he knew about the plan, he must have known that something had gone wrong, as firearms had been discharged (which had not been part of the plan). He would have been keen to distance himself from that when interacting with Ms Burton by appearing calm. If he did not know about the plan, then his demeanour and words appear consistent with those of an interested bystander. A third possibility is that he suspected that the shots may have had something to do with Mr Ratana, given that he likely knew where Mr Ratana was residing, but did not know the specific details of what had occurred or that any intimidation was intended that morning. On this hypothetical, it would not be surprising for Mr Kuru to be keen to distance himself from whatever had occurred.
[309]See above at [224].
Ms Burton accepted in cross‑examination that Mr Kuru might have said: “That doesn’t sound good.” Moreover, she was “pretty certain” that he in any event said more than “strange eh”, as he spoke for “about five seconds”.[310] Given the ambiguity of this evidence regarding what Mr Kuru actually said to Ms Burton, it is unreasonable to put too much weight on the particulars of what he did or did not say. Ms Burton also could not recall anyone else on the street along with Mr Kuru.[311]
Mr Kuru returns home
[310]See above at [224].
[311]See above at [224].
The evidence of the eviction party indicates that Mr Kuru reached Matipo Street ahead of the foot party and that he sped up to some degree as he was nearing his house.[312] This behaviour is consistent with the views of both sides. His desire to distance himself from what had occurred accords equally, as noted above, with him both knowing or not knowing about the plan beforehand. The same applies to the lack of interaction between Mr Kuru and the returning foot party.
Meeting the next day
[312]See above at [230]–[231].
It was alleged at trial that Mr Kuru’s anger at the meeting was feigned and an elaborate front to hide his involvement.[313] This relies on Mr Kuru believing that someone at the meeting would later agree to give evidence about it.[314] While this is possible, I do not consider that the jury could legitimately have discounted, as a reasonable possibility, that this was simply a genuine meeting and that Mr Kuru’s anger was also genuine. In light of these factors, a reasonable jury could not have accepted the Crown submission that the meeting was a ruse.
[313]See above at [237].
[314]It was not suggested to Mr Friesen that his giving evidence had been pre-arranged.
The Crown submits before us that Mr Kuru’s anger was rather directed at the fact that Mr Ratana had been killed. I accept that, if Mr Kuru knew of the plan before, he would want to know who had fired the shot and could have been angry because the shooting of Mr Ratana was not part of the plan. But, equally, his wish to know who had fired the shot and his anger would be just as consistent with not knowing about the plan beforehand. Moreover, on the defence theory that Mr Kuru had not authorised the intimidation, it would still make perfect sense for him to focus the meeting (and his anger) on the killing itself. It was after all the shooting (rather than the bare fact of an unauthorised intimidation attempt) which had adverse consequences for the gang.
I comment that the wording of Mr Kuru’s query as described by Mr Friesen accorded more with Mr Kuru not knowing of the plan beforehand. The phrase “that shit up the road” seems more naturally to refer to the events at 144 Pūriri Street as a whole. Also supportive of the defence theory is the fact that three of the members invited to the meeting were not involved in the attack. The trial Judge in her summing up noted that “on its face [Mr Friesen’s evidence about the meeting] supports Mr Kuru’s lack of knowledge”. I do not accept that the presence of these members who had not been involved supports the Crown’s interpretation of the meeting. It would be plausible for Mr Kuru to invite uninvolved members if the entire meeting was a ruse but, if the meeting was to confront the shooter, it would have made more sense to invite only those he knew were involved. The presence of uninvolved members at the meeting is in fact more consistent with a genuine lack of knowledge.
Other events following the shooting
Mr Kuru’s actions after the shooting could also equally support the contention that he did not know about the plan beforehand as that he did know about it. In both cases his actions could be regarded as attempts to control the fallout from the shooting which, even on the Crown theory of the case, had not been part of the plan. A crisis (like the shooting of a high‑ranking member of the Mongrel Mob) will necessitate a high level of involvement from the president, regardless of the level of knowledge they had before the event.[315]
Overall assessment
[315]The defence submission at trial was that the post‑shooting response organised by Mr Kuru was “cobbled together”: see above at [246].
I have considered the individual strands of circumstantial evidence relied on by the Crown and have concluded that individually they would not have enabled the jury to consider the charge proved beyond reasonable doubt. The evidence of Mr Kuru leaving early for his school appointment and his presence on Tiki Street would not on their own have sustained the inference (beyond reasonable doubt) that he left 60 Matipo Street not for his appointment with the principal but to oversee the plan. The other actions relied on by the Crown are just as consistent with him knowing as not knowing about the plan beforehand.
I have, however, not yet considered the other two strands of the Crown case: Mr Kuru’s role as president and Mr Runga’s role as sergeant-at-arms, supported by the admissible portions of Detective Inspector Scott’s evidence (assuming that evidence was suitably qualified).[316] The question is whether these factors would have been enough, combined with the otherwise insufficient circumstantial evidence considered as a whole (as it must be), to allow the jury legitimately to have been satisfied beyond reasonable doubt that Mr Kuru knew about and authorised the intimidation plan.
[316]See above at [182]–[184].
It is important here to establish precisely what level of knowledge Mr Kuru needed to have to be guilty. The Judge said in her summing up that the Crown had to prove:[317]
… that Mr Kuru knew about the plan and about all of it—the plan to go to Puriri Street, the plan to threaten Mr Ratana, the plan to damage his property and the plan to take guns along. You will need to be sure that he participated or helped prosecute the plan by … authorising it or sanctioning it or ordering it.
[317]See above at [251].
The Crown submits before us that Mr Kuru did not need to know all the details of the plan. He did not need to know “for example, that damage to property would be an element or guns would be taken”, although (on the Crown’s theory that he had authorised the intimidation) he would have had reason to expect the mobilising of more members and that guns would be taken. It was enough, the Crown submits, for the jury to be sure that Mr Kuru must have known about the presence of Mr Ratana and the earlier failed intimidation attempts and authorised a further intimidation attempt which was “bigger than before”, leaving the details to his sergeant-at-arms.
I agree that Mr Kuru would have known about the presence of Mr Ratana and likely also the previous intimidation attempts.[318] I do not, however, accept the submission that it would have sufficed for Mr Kuru to have given a general approval for further action (if indeed this could be inferred from the evidence). In the circumstances of this case, I consider the Judge was right to require proof beyond reasonable doubt that Mr Kuru knew of and joined the particular plan. It was especially important that he knew of the part of the plan that involved taking firearms, as that is how Mr Ratana was killed.[319]
[318]The trial Judge in her sentencing notes was also satisfied that Mr Kuru would have had this knowledge: see above at [123].
[319]See above at [102]–[103].
It is also important to consider the precise nature of the alleged plan, especially considering the Crown allegations in that regard had changed in the course of the proceedings. The answer to the question of whether it was a planned shooting of Mr Ratana (as originally alleged), a planned intimidation or a hastily organised intimidation will have a direct effect on the likelihood that Mr Kuru knew about the plan.
I do not know whether or not the jury accepted the Crown submission of coordinated planning over the course of about a week or the defence submission of a hastily put together plan on the morning of 21 August. The trial Judge’s view was that the plan was hastily conceived on the morning of Mr Ratana’s death.[320] This finding was based on her assessment of the evidence given at trial and was the foundation for the sentence imposed.[321] There was certainly a respectable basis on the evidence for concluding that the attack was poorly planned, and the Judge was in the best position to assess the evidence as a whole in that regard. I will therefore examine the case on the basis of the trial Judge’s findings on that issue.
[320]See above at [121].
[321]Sentencing Act 2002, s 24.
There is no evidence (as noted above) of any interaction between Mr Kuru and the other Black Power members on the morning of 21 August.[322] It would therefore have been pure speculation for the jury to decide that Mr Kuru must have nevertheless known about and authorised the plan conceived that morning, including the presence of firearms. This is particularly the case because the plan did not involve any intention to injure anyone but only damage to property. On this theory of the alleged plan, the circumstantial evidence and Mr Kuru’s role as president and Mr Runga’s role as sergeant-at-arms are insufficient to establish Mr Kuru’s involvement beyond reasonable doubt. The more spontaneous and disorganised the plan is conceived of as being, the less weight the idea that Mr Kuru “must have known” about it can carry.
[322]See above at [285]–[289] and [295].
In any event, even if the Crown theory of the genesis of the plan (as arising after the failed intimidation attempt of 14 August) had been accepted by the jury, I do not consider this would have changed the position. The fact that communication between Mr Runga and Mr Kuru may have been easy, and that there had been some discussion between Mr Runga and Mr Friesen outside 60 Matipo Street,[323] does not constitute evidence that there had been communication between Mr Kuru and Mr Runga. There was still no direct evidence of Mr Kuru’s involvement and in particular of his knowledge that it involved firearms.
[323]See above at [274].
I do not accept the Crown submission made at trial that this was a sophisticated plan, even if it had been conceived, contrary to the Judge’s view, earlier than the morning of 21 August 2018. As I have said earlier, I accept the submission made on behalf of Mr Kuru that it was not much different from the earlier intimidation attempts.[324] I also consider it highly significant that the plan, as put forward by the Crown at trial, did not involve inflicting any injury on Mr Ratana.
[324]See above at [213].
In these circumstances I do not consider that, even assuming the genesis of the plan was the incident of 14 August, a reasonable jury could have been satisfied to the requisite standard of Mr Kuru’s guilt. Suspicion about his involvement, even strong suspicion, is not sufficient.
Had injury to Mr Ratana been part of the plan, the suspicion that Mr Kuru must have known about it and that Mr Runga must have been acting on his instructions would have been much stronger. I do not need to decide whether, had that been the case, it would have been enough to allow the jury to be satisfied, on the basis of the strands of circumstantial evidence considered as a whole, of Mr Kuru’s guilt beyond reasonable doubt.
Conclusion
For all of the above reasons I consider that no reasonable jury could have been satisfied of Mr Kuru’s guilt beyond reasonable doubt.[325] While appellate courts must be careful not to usurp the function of the jury as fact‑finder, this is not a case where there was a plausible route for a reasonable jury to convict Mr Kuru beyond reasonable doubt. There was a total absence of direct evidence against him. The remaining strands of circumstantial and other evidence are either equivocal or otherwise insufficient to establish guilt either individually or considered as a whole. It is therefore not appropriate to order a retrial and a verdict of acquittal must be entered.
Result
[325]I do not of course know how the jury analysed the case. But it is likely that, in accordance with the urging of the Crown, they relied heavily on the evidence of Detective Inspector Scott as to the likelihood of a president knowing about an attack on a member of a rival gang, which I have now held to be inadmissible. I note that Cull J was also of this view: see above at [126]–[127]. She was also of the view that the evidence was otherwise insufficient to convict: see above at [261]–[263].
For these reasons I agree with the making of the formal orders set out above at [69]–[71].
KÓS J
I agree with the reasons delivered by the Chief Justice, and to that extent with those delivered by Glazebrook J, save in one respect. That concerns the “additional observations” made as to the admissibility generally of Detective Inspector (DI) Scott’s evidence on gang structures and behaviour.[326]
[326]Above at [59]–[64].
I agree that DI Scott’s evidence that “[i]n my experience a (serious) organised gang crime against another gang would likely occur with the sanction of the president” was impermissible in terms of the prior ruling given by the trial Judge,[327] and on any view impermissible for the reasons given by the Chief Justice at [52]–[58] above. That evidence lacked the essential qualification the Judge’s ruling had demanded and invited illegitimate reasoning on a critical issue the jury had to determine.[328] That it was perhaps the strongest evidence on that issue made it worse. It thereby failed each of the relevance, non-undue prejudice and substantial helpfulness tests in ss 7, 8 and 25 of the Evidence Act 2006. I agree its admission likely caused a miscarriage of justice and that, without it, this is that rare case where a jury verdict must be found unreasonable.
[327]R v Fantham-Baker [2021] NZHC 2632 at [16]–[18].
[328]See at [18].
As to the other matters related by DI Scott, and the additional observations offered by the Chief Justice, I simply note the following.
First, gangs galvanise public prejudice—not without substantial justification, but misconceptions abound. Gangs are complex and organisationally diverse.[329] As Dr Gilbert said in the brief of evidence referred to by the Chief Justice, gangs have a level of discipline and structure, but “ultimately they are made up of rebellious and difficult to control men”. Jurors should not be assumed to have a working understanding of gang structures and behaviour—unlike those of social clubs, sports teams, school committees and church congregations. Suitably qualified and tailored expert evidence on gang structures and behaviour is likely to be substantially helpful to a jury and admissible for the purposes of ss 7, 8 and 25. In my view, that may include expert narrative on gang history and culture, including inter-gang conflict, so long as it is broadly relevant to matters in issue and intended to inform rather than cause prejudice.
[329]Jarrod Gilbert Patched: The History of Gangs in New Zealand (Auckland University Press, Auckland, 2013) at ch 9, referencing not only the organisational and behavioural differences between different patched gangs, but also contrasting the “LA style street gangs” that emerged in the 1990s.
Secondly, DI Scott was qualified by experience to give such evidence. That was unchallenged. That he did so from a law enforcement background was a potential bias perfectly obvious to jurors. That did not disqualify him, but meant he had a heightened duty to be scrupulously fair and balanced.[330]
[330]Myers v The Queen [2015] UKPC 40, [2016] AC 314 at [60]. See also R v Carter (2005) 22 CRNZ 476 (CA) at [47]; and W (SC 38/2019) v R [2020] NZSC 93, [2020] 1 NZLR 382 at [199], n 202 per Winkelmann CJ and Williams J citing High Court Rules 2016, r 9.43(2)(b) and sch 4 cls 1–2 for the code of conduct for civil proceedings, which is now also applied in criminal proceedings as a matter of course.
Thirdly, most of DI Scott’s evidence was entirely uncontroversial. It elicited no cross-examination by any defence counsel.[331] The passage cited above at [59] of the reasons of the Chief Justice is objectionable for being argumentative, but it is also largely irrelevant and that reality mostly disposes of its prejudicial potential. It is also a rare departure from what otherwise amounted to relative neutrality. The objections advanced by trial counsel centred on the passage referred to above at [315].[332] In my view, that on‑the‑ground assessment was sound and there is no need here to go beyond it.
[331]Mr Stevenson did not appear at trial, but trial counsel were also eminently capable.
[332]R v Fantham‑Baker, above n 327, at [8] and [18].
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
APPENDIX
Below is a map showing the main locations relevant to the alleged offending. It is a diagrammatic representation only designed to give a general orientation of the area and is not to scale.
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