R v D HC New Plymouth CRI 2006-021-001478

[2007] NZHC 2010

This case has been anonymized

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2006-021-001478

THE QUEEN

v

D
T

Hearing:         13, 14, 15, 16, 17 August 2007

Appearances: C E Clarke and J S Gurnick for Crown

P E Keegan for D 
P J Mooney for T 

Judgment:      17 August 2007

JUDGMENT OF COOPER J ON s 347 APPLICATION

Solicitors:

Auld Brewer Mazengarb & McEwen, Crown Solicitors, PO Box 738, New Plymouth

Gordon & Mooney, PO Box 190, Stratford
Copy to:

P E Keegan, PO Box 8152, New Plymouth

R V D AND ANOR HC NWP CRI 2006-021-001478  17 August 2007

[1]      The accused D   and T   are on trial on a count alleging that on 23 November 2006 at Eltham, they assaulted one with intent to injure him.  Mr D   is also being tried on other counts, together with another co-accused, one W, But there is only the one count against Mr T  .

[2]      On  the  evening  of  Thursday 16  August  2007  after  the  jury  had  retired, Mr Keegan  made  an  application  under  s 347  of  the  Crimes  Act  1981  for  the discharge of Mr D   on count 2.   Mr Mooney, for the accused T  , made a similar application, although advanced on different grounds.

[3]      At the time the application was made the Crown’s case had all but been completed with only uncontroversial evidence to be led the following day.  The eye- witness accounts of what had taken place had all been given.  Mr Keegan submitted that the evidence that had been called on count 2 was insufficient, insofar as Mr D   was concerned to go the jury, and that no properly direct jury could convict him on that charge.

[4]      That submission was based upon inadequacies in the evidence of the only Crown witness who actually described the assault on which count 2 was apparently based, Ms Rachel Morehu.   Mr Keegan submitted that her identification of Mr Transom’s attackers was wholly inadequate, that she had  admitted  to  confusion between the subject incident and another assault forming the basis of another count and that her evidence was in conflict with that of three other Crown witnesses.  He maintained that the jury would be in no position to prefer her evidence to that of the other Crown witnesses and that in the circumstances Mr D   should be discharged.

[5]      Mr Mooney, for Mr T   advanced his argument on a different ground.   He submitted  that  Ms  Morehu  was  the  only  witness  who  said  that  the  assault  on Mr Transom, which is the subject of count 2, was committed by three people.  The other witnesses called by the Crown were credible and could not be preferred to Ms

Morehu, who had admitted to confusion.   In the circumstances, he argued that the jury could not reasonably convict Mr T  .

[6]      On the following morning, Ms Clarke for the Crown, argued that the issues that had been raised were matters of fact going to credibility and weight.   She referred to the well known statements of the law in Parris v The Attorney-General [2004] 1 NZLR 519 at [10]. She relied also on R v Bromby (HC DN T05/5334, 10

August 2006, John Hansen J).  In that case, it was held at [11] that:

A  Judge  hearing  a  s 347  application  must  guard  against  a  tendency  to determine issues on what the Judge may regard as reasonable, rather than whether or not the Jury could reasonably come to a conclusion of guilt.  For the purposes of argument, the evidence must give [sic] the construction most favourable to the Crown, and unless a case is clear cut in favour of an accused it should be left to a Jury to determine.

[7]      After  hearing  counsel  I  indicated  that  I  intended  to  allow  Mr  T  ’s application, but to reject Mr D  ’s application.  I indicated that I would give my reasons later and I now do so.

[8]      In her evidence, the witness Ms Morehu had described two Mäori boys as having participated in the attack on Mr Transom together with Mr T  .  It was only the  Mäori  boys,  however,  who  had  kicked  him,  and  they  had  engaged  with Mr Transom after his tussle with Mr T   was already underway.  Ms Clarke properly conceded that Ms Morehu’s reference to two Mäori boys was insufficient, even in context to clearly identify Mr D  .  Ms Morehu’s purported identification of Mr D   in the Courtroom was also plainly inadequate.  She initially said that she did not see him in the Courtroom and a few moments later purported to correct herself, saying that the person in the suit sitting at the back of the Courtroom was the accused  D  ,  but  that  she  had  initially  mistaken  him  for  being  one  of  the lawyers.

[9]      However, Ms Clarke pointed out that her reference to the two Mäori boys was clearly a reference to the same two persons who she had also described as having been involved in an attack on the other victim in the matter (the subject of count  1)  Mr  Hareb.    Then,  she  relied  on  the  fact  that  another  Crown  witness, Mr Harnett, had given evidence clearly identifying Mr D   (someone he knew)

as being one of those who had attacked Mr Hareb.  It followed that it would still be possible for the jury to link Mr D   to the attack on Mr Transom, because notwithstanding  the  inadequacies  of  Ms Morehu’s  description  of  the  two  Mäori boys,  Mr  Harnett’s  specific  identification  of  Mr  D    could  be  added  to Ms Morehu’s  evidence  that  the  same  two  persons  that  attacked  Mr  Hareb  had attacked Mr Transom.

[10]     I concluded that Ms Clarke was correct, notwithstanding the inadequacies of Ms Morehu’s evidence which Mr Keegan had pointed out, and that count 2 should be left to the jury insofar as Mr D   was concerned.

[11]     Insofar as Mr T   is concerned, Mr Mooney pointed out that it was only Ms Morehu’s evidence that had three people involved in the attack on Mr Transom which is the subject of count 2.   It was only on the basis that three people were involved, namely Mr T   and the two Mäori boys, that the evidence could possibly support a conclusion that any assault committed by Mr T   had been done with an intent to injure Mr Transom.  There was nothing apart from the number of attackers said to have been involved that would justify any inference of there being an intent to injure on his part.  On the other hand, it was Mr Harnett’s evidence that Mr T   had simply jumped in Mr Transom’s direction for the purpose of knocking batons that he was carrying out of his hand.  Mr T   had managed to knock the weapons out of his hands and they fell to the ground and the two men had fallen to the ground. On the ground they were rolling around, but Mr Harnett had not observed any punches.  The incident ended when Mr Transom had got up and left.  Another eye- witness, Ms Ngaau said that the incident in question had been all over within a few seconds and that no one else had been involved, apart from Mr T  .

[12]     Ms Morehu on the other hand had said during her cross-examination that she could well have been confused as to how many people had been involved in each fight.  Mr Mooney submitted that there was in the circumstances no basis on which the jury, properly instructed, could prefer the evidence of Ms Morehu to the evidence of Mr Harnett and Ms Ngaau.

[13]     I concluded in all the circumstances that the jury must inevitably have been left in a state of doubt about whether Mr T   had been involved in an assault on Mr Transom  with  intent  to  injure  him.    I  indicated  to  Ms Clarke  that  I  would discharge Mr T   on count 2 unless she wished to seek to amend the charge against him.   She made application accordingly, seeking to substitute a charge of assault simplicita under s 196 of the Crimes Act.   That  amendment was made without opposition from Mr Mooney.