R v Enoka
[2017] NZHC 698
•11 April 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-009-001603 [2017] NZHC 698
THE QUEEN
v
ALBERT ENOKA
Hearing: 10 April 2017 Appearances:
C J Lange for the Crown
A J D Bamford for the DefendantJudgment:
11 April 2017
ORAL JUDGMENT OF NATION J
[1] This is my judgment in relation to the disputed facts hearing that has proceeded today.
[2] On 3 June 2016, Mr Enoka pleaded guilty to:
(a) a charge of aggravated burglary that, on 15 February 2015 at Christchurch together with Mr Francis, he entered a building at Kibblewhite Street without authority and with intent to commit an imprisonable offence therein, namely assault, and he had with him a knife;
(b) wounding with intent to injure, namely that, on 15 February 2015 at Christchurch with intent to injure a Mr Kovacs, he wounded Mr Kovacs; and
R v ENOKA [2017] NZHC 698 [11 April 2017]
(c) unlawful detainment, namely that, on or about 15 February 2015 at Christchurch together with Mr Francis, he unlawfully detained a Ms Neho with her consent obtained by duress with intent to cause her to be confined.
[3] The summary of facts in relation to these charges indicated that between 8.00 and 8.30 pm on 15 February 2015 a woman, Miss Johnston, went to an address at Kibblewhite Street to visit a friend called Simon Kovacs. Also at the Kibblewhite Street address was Mr Kovacs’ partner Toni Neho, and Mr Kovacs flatmate Kyle Morgan.
[4] Around 10.00 to 10.30 pm, Miss Johnston telephoned the defendant Enoka. He was angry that she was not at home and thought that she was with some other man. It was arranged that the defendant Enoka would pick Miss Johnston up. She told him that she would meet him on the corner of Kibblewhite and Union Streets.
[5] Miss Johnston walked to the corner of Kibblewhite and Union Streets with Miss Neho and met the defendant Enoka. Mr Enoka was with the defendant Francis and a third unknown male. After they met up, Mr Enoka told the unknown male to stay with Miss Johnston in the car. Miss Neho, Mr Enoka and Mr Francis went back to the Kibblewhite Street address.
[6] Inside the house, Mr Enoka said to Mr Kovacs “Have you been fucking my Missus? What’s she doing here?” The summary referred to Mr Enoka punching Mr Kovacs twice in the mouth with a closed fist. As a result of the punches, Mr Kovacs sustained broken teeth and a fractured jaw.
[7] The summary referred to Mr Enoka telling Mr Kovacs and his flatmate, Mr Morgan, “you’re paying for having her here”. Also, that Mr Enoka told Mr Francis to keep guard on Mr Kovacs and Mr Morgan while he looked for money and other items of value during the course of which Mr Enoka used his knife to slice open Mr Kovacs mattress and base.
[8] There was no dispute as to the statement in the summary of facts:
At one point FRANCIS held KOVAC’s hand on a bedside table and told him that he would cut it off with the katana sword that the defendants had taken from MORGAN’s room. The Katana sword has two swords inside a wooden sheath. One blade is about 1 metre long and the other is approximately 6 inches shorter. The blades are very sharp and were capable of carrying out the threat made by FRANCIS.
[9] The summary referred to various items of property being put into bags and then the bags being taken out to their car.
[10] Mr Francis pleaded guilty to charges of aggravated burglary and kidnapping on 19 February 2016. He was sentenced on those charges on 12 April 2016.
[11] When Mr Enoka pleaded guilty on 3 June 2016, he was remanded for sentence to 12 July 2016. On 8 July 2016, through a new lawyer, he filed an application to withdraw his guilty pleas.
[12] In a judgment of 16 January 2017, I declined that application. Mr Enoka was remanded to 16 February 2017 for sentence.
[13] Just prior to the scheduled sentencing hearing, Mr Enoka, through counsel, sought a disputed facts hearing in relation to various other statements in the summary of facts. In a judgment of 16 February 2017, I deferred sentencing and set the matter down for a disputed facts hearing in relation to certain matters which, through his counsel, Mr Enoka said he wished to dispute.
[14] Those matters were as follows:
·that, when he accused Mr Kovacs of having sex with his “Missus”, he pointed his knife at Mr Kovacs and inside the house, held the knife against Mr Kovacs throat at around the same time he punched him twice in the mouth with a closed fist;
· that, after this, he dragged Mr Kovacs into Mr Morgan’s room;
· that he threatened to stab Mr Kovacs and Mr Morgan while in Mr Morgan’s
bedroom;
· that he grabbed an ornamental machete and threatened Mr Kovacs and Mr
Morgan with it; and
· that he ransacked the house.
[15] At the disputed facts hearing today, the Crown called evidence from Mr
Kovacs and Mr Morgan.
[16] On his evidence, Mr Kovacs described how Miss Johnston and Miss Neho had left his home. He understood from conversations he had with Miss Johnston that they were going to meet a man called Ray who Miss Johnston said she had recently partnered up with in some way. He said the door to the house was left open as he was expecting Miss Neho to return. He described hearing male voices at the door to the house. He described how there were two men involved. The one who he would have been able to identify was Mr Francis. The other person was wearing a balaclava and had some gang insignia. Given Mr Enoka has pleaded guilty to these charges, there is no dispute that the man with the balaclava was Mr Enoka.
[17] Mr Kovacs described how Mr Enoka went into his bedroom where Mr Kovacs was in his bed. He described how Mr Enoka was holding a knife. He initially described it as a knife with a six inch blade. With the assistance of a ruler, he indicated the whole knife as being 18 centimetres long. He described how Mr Enoka was swearing, abusing him and accusing him of having sex with Miss Johnston. He described Mr Enoka holding the blade of the knife against his throat and said he was able to feel the blade against his throat. He said he was punched in the face with a closed fist, he thought more than once. As a result, one tooth was completely dislodged from his mouth. Another tooth was broken. That tooth and another were partially dislodged. His lip was also pierced. As a result of those injuries, he subsequently received more than 20 stitches to the inside of his mouth. The damage to his teeth and the injury to his lip was apparent in photographs which were produced as an exhibit.
[18] Mr Kovacs said he was bleeding profusely. He grabbed some garment, perhaps a tee-shirt to hold against his face to stem the bleeding. He said he was sitting on his bed doing this. He described Mr Enoka as acting hysterically towards
him. He said Mr Enoka then grabbed him by the garment he was wearing on his upper body and forced him to go to the bedroom next door. This was Mr Morgan’s bedroom.
[19] Mr Kovacs described him lunging at Mr Morgan with the knife and punching him in the head and torso area. He said both he and Mr Morgan were on the bed, Mr Enoka was “going psycho” at both of them and Miss Neho was behind in the doorway with the other offender. He said that, when Mr Enoka was in that bedroom, he abused Mr Morgan in a similar way. Mr Morgan had been on his Playstation with headphones and was on his bed.
[20] He said Mr Francis was also in Mr Morgan’s room at that stage, standing back but supporting Mr Enoka in what was happening. Mr Francis had Miss Neho with him. He said Mr Enoka was holding the knife at this stage in a way that was threatening and aggressive. He said Mr Morgan was curled up in a foetal position on the bed.
[21] Mr Kovacs then described how both men, but mainly Mr Enoka, started going through places in Mr Morgan’s room. He said they wanted money but seemed to be looking for anything of value. He described them pulling blankets off the bed, going through a chest of drawers which was in a wardrobe, keeping some items they wanted and throwing other items about. He said they took ornamental items off the wall and also collectibles which Mr Morgan had on a shelf. They also found a crossbow. At one point, Mr Enoka pointed this at Mr Morgan in a threatening manner. He, Mr Kovacs, said he saw them get Miss Neho to help put items they had found in a pillow case and a blanket. He said, at one point Mr Francis had been brandishing a machete. He also said he heard Mr Francis say that Kovacs and Morgan were lucky because Mr Enoka had done worse things on other occasions.
[22] Mr Kovacs said that, after this, he was taken back to his bedroom where he said they went through his bedroom looking for money and valuables. He described them taking jewellery, after-shave, iPads and various other items associated with his computer. He said they made him tip his bed up. He said Mr Enoka stabbed the mattress with his knife.
[23] Mr Kovacs said Mr Enoka and Mr Francis threatened that, if they left the property and contacted the Police, they would be back, spoke of the gang and at least implied there would be violence. He said they left the house with Miss Neho, taking the property which they had stolen. He said Mr Morgan had been able to hide a cell phone from them. After a time they looked out, saw the men had left and rang the Police.
[24] In cross-examination, Mr Bamford suggested Mr Kovacs had met Mr Enoka before the night of these events. He suggested Mr Enoka was demanding money because Mr Kovacs owed Mr Enoka money for a drug debt.
[25] Mr Kovacs strongly denied both assertions and said all he knew of Mr Enoka was what Miss Johnston had told him about their relationship.
[26] Mr Bamford suggested Mr Enoka had never threatened either Mr Kovacs or Mr Morgan in the way Mr Kovacs had described. Mr Kovacs said what he described was true and indicated quite clearly, to my satisfaction, that he knew and could remember what had happened to both of them.
[27] The Crown also called Mr Morgan to give evidence. He had been served with a witness summons but did not come to Court when the hearing began. I had to issue a warrant for his arrest and he was brought to Court and was able to give evidence at 2.00 pm.
[28] In his evidence, such as it was, Mr Morgan was, in my view, deliberately vague. There was a lot that he said he could not remember. He seemed most reluctant to particularise what either of the men who had been at the house had done, he could not say what, if any, of his property had been taken. All this led to my ultimately declaring him a hostile witness. He was cross-examined on an extensive statement that he had made to the Police at 2.00 am on 16 February 2015, very shortly after the events in question. That statement contained considerable detail about what had happened. He did say in that statement that a person, not Mr Enoka, had smashed his way through the bedroom door with a knife and started to attack him. He talked about how he had been hit around the face by this person and had put
his arms over his head to protect himself. He also in that statement said that Simon was thrown into his bedroom and looked like he had been beaten up. That part of his statement is, of course, consistent with the evidence which was given by Mr Kovacs. He said that Simon had a gash on his bottom lip and a red mark on the right hand side of his face like he had been punched. He described the person who threw him in the room as being a patched-up Rebel gang member. On that evidence, it was clearly Mr Enoka. He referred to his being able to throw his cell phone under his bed just before he was dragged and taken to Simon’s bedroom. That again was consistent with Mr Kovacs evidence. He said the patched-up Rebel gang member placed Simon Kovacs on his bed and said that he was forced to sit in the corner of Mr Kovacs room. He said that the other man, who would have been Mr Francis, was still holding the knife so he referred to him as being the person holding the knife but said the person who would have been Mr Enoka kept saying “keep an eye on them and if they move stab them up”.
[29] He talked about how these men came to take turns searching for stuff in Kovacs bedroom. He also referred to them taking his wallet and a watch that had cost him $900, also stealing his Panasonic blue-ray player and a Hewlett Packard laptop. He referred to them taking his ornamental machete and described it as having a green rope around the handle, the blade being about 80 centimetres long. He referred to them taking the katana sword.
[30] He referred to the patched-up Rebel gang member as having a full-faced black balaclava which was rolled down and also wearing gloves. He referred to Mr Kovacs girlfriend, Toni, being in the house while this was happening. He said she was following them around and “they were treating her like shit and ordering her to do stuff like unplug this and that, get plastic bags and asking her questions about where the money was”. He referred to Mr Enoka leaving the room first and the other person, who would have been Mr Francis, staying in the house and of him telling him to “wipe down the stuff” and of saying “if you ring the cops, I will burn the house down and kill you”.
[31] He had said in evidence before he was declared a hostile witness that he could not recall ringing the Police but, in his statement, he said that Mr Francis left
soon after and “we waited for about 15 to 20 minutes before we got up and Simon called the Police on my cell phone”.
[32] To the extent that there is any conflict between the evidence of Mr Morgan and Mr Kovacs, I have no hesitation in preferring the evidence of Mr Kovacs. I consider that he was clear and firm in his recollection of events and, to the extent there is an inconsistency between them, I prefer the evidence of Mr Kovacs but there was much in Mr Morgan’s statement which, when he was cross-examined, he did acknowledge was true and what he said is broadly consistent with Mr Kovacs account of what happened. To the extent there are inconsistencies, that is explicable given how frightening these events must have been for both of them.
[33] Mr Enoka was called to give evidence. In his evidence, he described how he and Ms Johnston and Ms Neho went back to the house. He acknowledged and said that he had been wearing a balaclava at the time. He said this was all about collecting a drug debt but he did not want anyone to be able to identify him as the person who was there doing that because he did not want anyone to know about the drug dealing. But, in his evidence today when I sought clarification, he was adamant that he was saying that Ms Neho, Ms Johnston and he and Mr Francis had all gone back to the house at Kibblewhite Street. I note that is quite contrary to the statements that were in the summary of facts that he did not dispute that Ms Johnston had been left at the corner of Union and Kibblewhite Streets and that she had been left in the company of a third person. There had been no dispute that it was Ms Neho, Mr Francis and Mr Enoka who returned to the house at Kibblewhite Street.
[34] In his evidence, Mr Enoka said this was all about collecting a drug debt. He denied that he had been angry or jealous of Ms Johnston because of his suspicion that she had sex with someone at Kibblewhite Street. Again, I note there was no dispute with that part of the summary of facts which had indicated that he had telephone Johnston and that he was angry that she was not at home and thought that she was with some guy. There was also no dispute with the statement in the summary of facts that Enoka had said to Kovacs when he went into his bedroom “have you been fucking my missus, what she’s doing here?” I consider Mr Enoka’s evidence, that this was all about collecting a drug debt and that it had nothing to do
with his jealousy about what he supposed Ms Johnston had been up to, was false and suggests to me that he is simply making this up to give the best possible account he could and the best explanation in his eyes as to what had happened.
[35] He denied ever going into Mr Morgan’s room when there was any sort of altercation or at any stage but, at the same time as he said that, he also said that he could recall Simon Kovacs coming into the bedroom and sitting on one side of the room. That was in his room.
[36] Mr Enoka described running from the house with Ms Neho and later being picked up by a car. He said that she had been with him voluntarily the whole time and also denied threatening her in any way when she was in the house. However, the fact remains that he has pleaded guilty to unlawfully detaining Ms Neho. I have considered the details in relation to that in my judgment dealing with his application to withdraw the guilty plea.
[37] He was asked if he recalled either of them having a knife. He said he only recalled a knife being taken off the wall. The knife that was on the wall was in Mr Morgan’s room. The fact that he was able to recall that, indicated to me that he was in Mr Morgan’s room when things were taken off the wall. Mr Enoka did agree with the proposition put to him by Mr Lange for the Crown that these two men had ransacked the house.
[38] Having listened to the evidence of Mr Enoka, I am satisfied and remain satisfied and sure that Mr Kovacs’ account of what occurred is an account that can be relied upon and that the events as he described them did occur.
[39] I am satisfied that, during this incident, Mr Enoka presented or pointed a knife at Mr Kovacs and, by his actions in conjunction with the way he was abusing both Mr Kovacs and Mr Morgan, was threatening to do violence to both men with the knife that he was holding.
[40] I am satisfied that Mr Enoka dragged Mr Kovacs into Mr Morgan’s room
and, while there, through his actions, threatened to stab both Mr Kovacs and Mr
Morgan. I am satisfied that, while in Mr Morgan’s room, Mr Francis was holding a machete, not Mr Enoka, but that Mr Francis, in doing that, in conjunction with Mr Enoka, was threatening the men in the bedroom.
[41] I am also satisfied that, while they were in the house, they went through Mr Morgan and Mr Kovacs’ bedrooms looking for money and items that they wanted to take and, while doing this, they damaged property, in particular Mr Kovacs mattress which Mr Enoka cut with the knife. I am sure they did that with a complete disregard for Mr Kovacs and Mr Morgan’s ownership of that property and their feelings about the property, and that both bedrooms were left in a dishevelled and messy state as a result. That is confirmed by photographs of each room which were produced as exhibits and, of course, it is consistent with Mr Enoka’s concession and acknowledgement that they had ransacked the house.
[42] That is my determination in relation to the matters which are in dispute.
Solicitors:
Raymond Donnelly & Co., Christchurch
Bamford Law, Nelson.
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