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Kuru v The King

Kuru v The King

Case [2023] NZCA 150 5 May 2023

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA182/2022
[2023] NZCA 150

BETWEEN	DAMIEN SHANE KURU Appellant
AND	THE KING Respondent

Hearing:	26 October 2022; (further submissions 22 February 2023)
Court:	Collins, Muir and Cull JJ
Counsel:	C W J Stevenson and J H C Waugh for Appellant S K Barr and H S Cunningham for Respondent
Judgment:	5 May 2023 at 9.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS

Collins and Muir JJ [1]–[81]
Cull J (dissenting) [82]–[123]

COLLINS AND MUIR JJ

(Given by Collins J)

Introduction

On 21 August 2018 Mr Ratana was shot dead at his partner’s home at 144 Pūriri Street, Whanganui. Mr Ratana, who was a member of the Mongrel Mob, was shot after a number of Black Power members went to his partner’s home with firearms and other weapons to intimidate Mr Ratana and persuade him to leave the neighbourhood. Black Power considered the area where Mr Ratana was staying as their territory.
Mr Damien Kuru (Mr Kuru), who was the president of the local chapter of the Black Power, was not part of the group who went to Pūriri Street. He initially remained at 60 Matipo Street, located approximately 300 metres from where Mr Ratana was shot. That address was Mr Kuru’s home and the Black Power headquarters. Before the shooting Mr Kuru walked a short distance along Matipo Street towards the local school. At about the time of the shooting Mr Kuru was seen on Tiki Street, which links Pūriri and Matipo Streets. At that stage he was about 100 metres from where Mr Ratana was shot.
Seven Black Power members were charged with having murdered Mr Ratana and with participating in an organised criminal group. Before trial, Mr Rogerson, one of the defendants, pleaded guilty to being a party to murder. Three other defendants (Messrs Box, Fantham-Baker and Anthony Kuru) pleaded guilty to manslaughter. Mr Newton, one of the seven originally charged with Mr Ratana’s murder, had the charge against him dismissed pursuant to s 147 of the Criminal Procedure Act 2011. Mr Box and Mr Anthony Kuru also pleaded guilty to participating in an organised criminal group. Mr Friesen was also involved, but was granted immunity from prosecution and gave evidence for the Crown at the trial.
Mr Kuru and Mr Runga, the Sergeant-at-Arms and a senior member of the local Black Power chapter, proceeded to trial and were found guilty of having been parties to the manslaughter of Mr Ratana. The charges against them of having participated in an organised criminal group were dismissed pursuant to s 147 of the Criminal Procedure Act.
Mr Kuru was sentenced by Ellis J on 24 February 2022 to five years and two months’ imprisonment.[1] He appeals only his conviction.
[1]R v Kuru [2022] NZHC 309 [Sentencing notes] at [56].
Three grounds have been advanced in support of the appeal:
(a)The jury’s verdict was unreasonable and not supported by the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kuru v The King

Details

AGLC: Kuru v The King [2023] NZCA 150
Case: [2023] NZCA 150
Decision Date: 5 May 2023 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Damien Shane Kuru, the appellant, appealed against his conviction for being a party to the manslaughter of Mr Ratana, arguing that the jury's verdict was unreasonable, that Detective Inspector Scott's evidence should not have been admitted, and that the jury was misdirected on the prerequisites to being a party to manslaughter. The Court dismissed the appeal. The majority held that the jury's verdict was not unreasonable, as there was sufficient evidence for them to reasonably convict Mr Kuru. The Court also found that Detective Inspector Scott's evidence was admissible and not unfairly prejudicial, as it was relevant and helpful to the jury. Lastly, the Court concluded that the jury was not misdirected on the prerequisites to being a party to manslaughter, as the Crown was required to establish that Mr Kuru knew the common purpose involved an unlawful act likely to cause more than trivial harm to the deceased, which was a probable consequence of the prosecution of the common purpose. Cull J, however, dissented, arguing that the jury's verdict was unreasonable and that the conviction was unsafe due to insufficient evidence and the expert evidence from Detective Inspector Scott.

Orders