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Pakai v R

Pakai v R

Case [2016] NZCA 343 20 July 2016

Criminal Liability

Mens Rea & Intention

Self-Defence

Unconscionable Conduct

Prosecutorial Misconduct

Admissibility of Evidence

Criminal Law

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NOTE: ORDER MADE IN THE HIGH COURT PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESSES PURSUANT TO SECTION 202 CRIMINAL PROCEDURE ACT 2011.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA663/2014 [2016] NZCA 343

BETWEEN
DILLIN PAKAI

Appellant

AND

THE QUEEN Respondent

CA554/2014

BETWEEN SHANE PIERRE HARRISON Appellant

ANDTHE QUEEN Respondent

Hearing: 8 June 2016

Court:

Randerson, Harrison and Stevens JJ

Counsel:

K R Smith and C J Tennet for Appellant (CA663/2014) CWJ Stevenson and S J Gill for Appellant (CA664/2014) G J Burston for Respondent

Judgment:

20 July 2016 at 10.15 am

Reissued:

22 July 2016

JUDGMENT OF THE COURT

A The appeals against conviction are dismissed.

PAKAI & HARRISON V R [2016] NZCA 343 [20 July 2016]

B The appeal in CA663/2014 against the minimum period of imprisonment

is dismissed.

REASONS OF THE COURT (Given by Harrison J) Contents

Introduction [1] Facts [4] Conviction [15] Unreasonable verdicts [15] (a) Appeal case [15] (b) Self-defence [23] (i) Elements [23]
(ii) Circumstances as believed to be [25] (ii) Purpose of self-defence [29] (iv) Reasonable force [32]

Directions [36] Prosecutorial misconduct [42] Intercepted communications [58] Party liability [65] Sentence [74] Result [80]

Introduction

[1] Dillin Pakai and Shane Harrison were found guilty of murdering Alonsio Matalasi and of discharging a firearm with reckless disregard following a trial before Mallon J and a jury in the High Court at Wellington. Mr Pakai pleaded guilty before trial to two separate charges of recklessly discharging a firearm in a related incident. Both men were convicted and sentenced to life imprisonment. Mr Pakai was sentenced to a minimum period of imprisonment of 12 years and three months; Mr Harrison was sentenced to a minimum period of 13 years and three months.

[2] Messrs Pakai and Harrison appeal against their convictions on the primary grounds that the jury’s verdicts were unreasonable, the Judge misdirected the jury, the prosecutor misconducted himself, and a miscarriage of justice arose from the admission of intercepted communications.

[3] Mr Pakai appeals against the minimum period of his sentence. The Solicitor-General’s appeal against Mr Harrison’s finite sentence was heard separately and is yet to be determined.

Facts

[4] The essential facts are largely undisputed. The issues primarily relating to the conviction appeals arise from a contest about one part of the relevant evidence and the availability of inferences from all the facts as a foundation for a defence of self-defence.

[5] In broad outline, on the evening of 22 August 2013 Messrs Harrison and Pakai drove to a flat occupied by Mr EE and his partner, Ms MN, in Jackson Street, Petone. Mr Harrison, who was then aged 44 years, was a member of the Mongrel Mob gang; Mr Pakai, then aged nearly 19 years, was also associated with that entity as a prospect seeking to prove himself for membership.

[6] Mr EE was separately associated with a different chapter of the Mongrel Mob. He was said to be a drug dealer. He was absent when Messrs Harrison…

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 Pakai v R

Details

AGLC: Pakai v R [2016] NZCA 343
Case: [2016] NZCA 343
Decision Date: 20 July 2016 at 10.15 am

CaseChat Overview and Summary

Dillin Pakai and Shane Harrison were convicted of the murder of Alonsio Matalasi and discharging a firearm with reckless disregard. Both men were members of the Mongrel Mob gang. Their appeals against conviction and sentence were dismissed by the Court of Appeal. The appeals against conviction were dismissed on the basis that the jury could reasonably have concluded that the defence of self-defence was not available. This was because the evidence did not establish that the circumstances as they believed them to be warranted the use of a firearm, that they were acting in self-defence, or that the force used was reasonable. The appeal against sentence was also dismissed because the sentence was not manifestly excessive.

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