R v Fa'Apusa CA300/06

[2006] NZCA 522

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA300/06

THE QUEEN

v

EMILE FA’APUSA

Hearing:         30 November 2006

Court:            Chambers, Randerson and Potter JJ Counsel:   M F Tuilotolava for Appellant

H D M Lawry for Crown

Judgment:      13 December 2006         at 11 am

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed. B The conviction is quashed.

C        A new trial is directed.

DAn order is made prohibiting publication of the reasons for judgment in the news media or on the internet or in any other publicly available

database  until  final  disposition  of  the  new  trial.    Publication  of  the

R V FA’APUSA CA CA300/06  13 December 2006

reasons  for  judgment  in  a  law  report  or  law  digest  is,  however,

permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]      On 28 June 2006, the appellant was convicted in the District Court after a jury trial on one count of wounding with intent to cause grievous bodily harm, contrary to s 188(1) Crimes Act 1961.   Judge Epati presided at the trial and later sentenced the appellant to two and a half years imprisonment.

[2]      The conviction arose from an incident in South Auckland in the early hours of the morning of 9 March 2004 when the complainant was stabbed with a knife, sustaining very serious injury.  It was alleged the appellant was one of four young men involved in the attack.  The other three had already been convicted by the time of the appellant’s trial.  The Crown did not suggest the appellant was responsible for the stabbing.  Rather, the Crown case was that the appellant was a secondary party to the stabbing either under s 66(1) or s 66(2) Crimes Act.

[3]      The appellant appealed against both conviction and sentence.   The appeal against conviction was advanced on the basis that a miscarriage of justice had occurred on three grounds:

(a)     The trial Judge failed adequately to direct the jury on the legal elements of s 66(1) and 66(2);

(b)     The trial Judge misstated the defence case; and

(c)     The trial Judge over-emphasised the case of the Crown at the expense of a balanced discussion of the cases for both sides.

[4]      On the sentence appeal, it was submitted on the appellant’s behalf that the Judge failed to give adequate weight to the youth of the appellant, his limited role in the attack on the complainant, and his efforts to stop the co-offenders from further assaulting the complainant.

The Crown case

[5]      At trial, the Crown case was that the appellant was one of the four occupants of  a  motor  vehicle  on  the  evening  in  question.    The  driver  was  Epati  Finau (aka “Bucky”).  The passenger in the front seat was Junior Pritchard.  The rear seat passengers were the appellant and Feso Su (aka “Afa”).   The Crown alleged all four were members or associates of a South Auckland gang.    They came across three members of a rival gang walking on the footpath.  The complainant was one of these three.  Bucky stopped the vehicle and, after some sort of exchange between the two groups, those in the vehicle got out and chased those on the footpath.

[6]      Two  members  of  the  footpath  group  ran  away but  the  complainant  was knocked to the ground and subjected to an attack in which he was punched and kicked as well as being stabbed at least twice in the upper body by Junior, Bucky or both.   The complainant said he was also struck on the head with a bottle but the Crown case was that the wounding essential to the charge resulted from the knife wounds.

[7]      Afa was said to be involved in the kicking and there was some evidence that he hit the complainant with a recycling bin.

[8]      The appellant was alleged to have kicked the complainant while he was on the ground at some stage during the attack.  The Crown case against him was that he was aware an attack was going to be made against the members of the other gang and that he participated in the attack by getting out of the car and running after the members of the other group with the intention of taking part in the attack.   He assisted, the Crown said, by kicking the complainant when he was on the ground. He did so, the Crown alleged, in the knowledge that really serious harm was likely to result to the complainant.

The Defence case

[9]      The appellant did not dispute that the complainant was stabbed during the course of the attack and admitted seeing that happen.  But he maintained he had no prior knowledge that his associates had a knife and did not anticipate serious harm such as a stabbing would occur.  In a video interview, he told the police Bucky and Junior had run well ahead of him and that he was still some distance away when he saw the stabbing occur.   His only participation came after the stabbing when he kicked the complainant twice on the arm after the wounding had occurred.  When Afa continued to attack the complainant, he said words to the effect “that’s enough” and tried to drag the others away.

The evidence at trial

[10]     For present purposes, the evidence of only two witnesses and the appellant’s video statement need be mentioned.  The complainant said there were four or five males in the car which stopped alongside him and his two friends.  He noticed they were wearing red clothing (indicating membership of one of the gangs).   Some remark was made by one of the occupants of the car and then some of them (he thought there were three) jumped out of the car and began chasing the complainant and his associates.  Later, he said he thought three or four men were involved in the attack but he was not able to identify any of them.  He said at one point he heard the sound of bottles smashing and he was hit on the back of the head by a bottle (which he thought was unbroken).  He was kicked about the upper body and head but did not realise he had been stabbed until afterwards.   In cross-examination, he was referred to a statement he had made to the police a week after the incident in which he said he had only seen two people running after him and that three were involved in the attack.

[11]     The Crown also called Bryce Woollen who was one of the complainant’s associates.  His evidence was that he, the complainant and the third associate were very drunk at the time but he could still remember what happened.  He thought there were four or five in the car which stopped.  The occupants were “getting smart” and

yelling out something about a gang.   All of them jumped out and he noticed two were carrying knives.  He said he saw the knives when the occupants got out of the vehicle and were running up the street.  Because he ran away, he was not able to give any evidence of any attack and was not able to identify any of those involved.

[12]     The only evidence linking the appellant to the attack came from his video statement to the police.   He said he had been picked up from his home by his associates on the evening in question.  Bucky was driving the car.  They noticed the complainant and his two associates walking along the street and that they were wearing the colours of a rival gang.  The car stopped and the other three jumped out. He was the last to leave the vehicle and was behind the others.  He saw Bucky catch up with one of the three men.   At that stage, Bucky was some distance away. Although it was dark, there were street lights and he was able to see Bucky start punching the complainant.   Junior was also there and he saw Junior stab the complainant.  He had not seen the knife that evening although he had seen the knife before, “ages ago”.  He saw Junior give the knife to Bucky who was also stabbing the complainant.  He admitted he and his colleagues had been drinking beer in the car from bottles and said he saw Bucky smash a bottle on the ground first and then begin chasing the complainant.  He did not see the bottle used.  At some point Afa had also hit the complainant with the recycling bin and had stomped on him.   He admitted the beating had occurred because the complainant and his associates were members of a rival gang.  He also admitted kicking the complainant twice in the arm but he said this occurred after the stabbing.  Afa was continuing the attack and they had to drag him away.  They then got in the car and left.  There was no evidence to contradict the appellant’s statement that he did not kick the complainant until after the stabbing.

Identifying the real issues

[13]     A critical part of the role of the Judge is to isolate the real issues at trial.  It is usually helpful to give to the jury a written statement of the essential issues for their determination.  This could have started with a statement of the matters not in dispute:

(a)     That the complainant was stabbed with a knife either by Junior or

Bucky or both; and

(b)That this was a deliberate wounding which resulted in grievous bodily harm (really serious harm) to the complainant.

[14]     The essential issues for the jury would then have been confined to whether the Crown had proved to the required standard that the appellant was a party to the wounding under s 66(1) or 66(2).

[15]     The issues under s 66(1) and s 66(2) are distinct and involve very different considerations.   Under s 66(1)(b) and (c), the essence of aiding and abetting is intentional help for the purpose of assisting the principal to commit the offence: R v Samuels [1985] 1 NZLR 350 at 356. On the facts of the present case, the appellant might also have been guilty as a secondary party under s 66(1)(d) if the Crown could prove he encouraged one or more of the others to wound the complainant and intended that to occur. The assistance must be active; a mere passive bystander will not be guilty as a secondary party.

[16]  Critically, the assistance or encouragement must occur before or contemporaneously with the act which constitutes the actus reus of the offence: R v Beuth [1937] NZLR 282 at 289 and R v Larkins [1987] 2 NZLR 282 at 286. As a matter of logic, the actions of an accused person after the offence is complete cannot assist the principal offender to commit the offence. Here, that meant the Crown had to prove the appellant actively assisted or encouraged the wounding before or at the same time as the wounding occurred. It was also essential for the Crown to prove the appellant knew one or more of his associates intended to wound the complainant or one of his group: R v Kimura (1992) 9 CRNZ 115 at 117.

[17]     In summary, the written statement of issues for the jury in this case could have stated that, for the purposes of s 66(1), the Crown had to prove beyond reasonable doubt that:

(a)     The accused knew that one or more of his associates intended to wound the complainant or one of his group; and

(b)The accused actively assisted or encouraged the wounding by his words or actions before or at the same time as the wounding occurred; and

(c)     He intended (meant) the wounding to occur.

[18]     For the purposes of s 66(2), the Crown had to prove two elements.  The first was whether the appellant had formed a common intention with one or more of his associates to assault the complainant and to assist each other in doing so.   As the Judge said, the common intention or agreement is usually inferred from the words or actions of the participants. The second was whether the appellant knew that a wounding could well happen (or was a real and substantial risk) in the course of carrying out the assault:  R v Curtis [1988] 1 NZLR 734 at 739.

[19]     Under s 66(2), it was not necessary to show the appellant actually took part in the assault or that he intended the wounding to occur.  But the fact that the appellant did take part in the assault or encouraged it to happen could constitute evidence from which the jury could infer he formed the necessary common intention to attack the complainant or his group.

[20]     The written statement of issues for the jury could therefore have stated that, for the purposes of s 66(2), the Crown had to prove beyond reasonable doubt:

(a)     That the accused agreed with one or more of his associates to assault the complainant or one of his group and agreed to assist each other to do so; and

(b)That  the  accused  knew  a  wounding  could  well  happen  during  the assault.

The summing up

[21]     In the present case, the only written material the jury had was a copy of s 66 and a statement which effectively repeated the elements of the indictment which was in the following form:

THE CROWN SOLICITOR AT AUCKLAND charges that EMILE FA’APUSA,  on  or  about  9  March  2004,  at  Auckland,  together  with JUNIOR PRITCHARD, EPATI FINAU, and FESO RICHARD MARTEL SU (also known as AFA FRASER) with intent to cause grievous bodily harm to ZARN TARAPATA, wounded ZARN TARAPATA.

[22]     In his summing up, the Judge referred at various points to most (but not all) of the issues.  Nevertheless, we are satisfied that the summing up was defective in a number of ways.  In summary, these were:

(a)     It  was  unnecessarily  complex  because  it  dwelt  at  some  length  on matters not in dispute such as the wounding and who did it.

(b)It was confusing because the Judge discussed at one point whether the appellant was guilty as a principal even though this had never been alleged by the Crown.

(c)     The Judge failed to differentiate clearly between the elements necessary to establish guilt as a secondary party under s 66(1) and (2).

(d)The Judge wrongly adopted the Crown’s submission that the appellant could be a party under s 66(1) if he participated in the attack after the wounding had occurred.

(e)     The Judge failed to link to the facts of the case the legal elements necessary to establish guilt as a party and to identify the competing contentions of Crown and defence in relation to each.

(f)     The  Judge  over-emphasised  the  Crown  case  at  the  expense  of  the defence case.

(g)     The Judge incorrectly advised the jury the appellant did not challenge the issue of common intention under s 66(2).

[23]      We do not intend to detail each of the defects in the summing up but, to illustrate some of the matters, we quote the following passage when the Judge was discussing s 66(2):

The third one is that the agreement involved them helping each other to do it. They may have had different roles or degrees of involvement.   What is important is that each of them agreed to participate in some way in achieving their common goal.  What the Crown says is, okay not only did the accused run over with them, he participated, kicked.   It would have probably been different if he just ran over and stood by and didn’t say anything or do anything or – what the Crown says is he participated in the common goal which is assault or to do harm to the complainant so therefore he intended in terms of the grievous harm.

More so, what the Crown case is, even if he did not realise what the other one was going to do with the stabbing, he ran over and he actually saw the stabbing before he participated.   The Crown’s argument is that if he had participated with just a punching and things and then when he saw the knife produced he moved back and did not do anything more, then you probably would have a doubt but the Crown says it is even more so that despite the fact that he saw the knife come out, and you saw his video, he got up and he said he saw the knife come out, then he saw not only Buck but also Junior. But he saw after that Bucky and it was after that that he then hopped in and gave him his two kicks.  And what the Crown says is that is sufficient.  Well as a matter of law, if you are satisfied that that is the case then that is sufficient.  You can infer from that that he intended to do the grievous bodily harm even although he did not himself do the grievous bodily harm.

Now if you are satisfied that that is the case then all of them would be parties including the accused, of the commission of the agreement and putting it into effect.   You should also be satisfied that the particular offence, which the subject, namely the stabbing, was known to the accused, was known to him to be something that could well happen while they are carrying out the agreement.  The Crown says that was indeed the case.  He knew that there was going to be some assault and some harm and even after he knew about the  stabbing  he  nevertheless  continued  with  the  participation  which  he started when he ran out to the scene.

[24]     This passage confuses the approaches under ss 66(1) and (2) and wrongly suggests that the appellant’s participation in the prosecution of the common intention to assault the complainant was a necessary element under s 66(2).

[25]     The  Judge  also  repeats  in  this  passage  the  Crown  contention  that  the appellant could become a party to the wounding by his actions after it had occurred.

That was wrong as a matter of law.  It was incumbent on the Judge to direct the jury exactly what words or conduct were relied upon by the Crown to support its case that the appellant was a party to the wounding.  That could have included the appellant’s actions in pursuing the complainant with the others from which the jury might have inferred he intended to assist or encourage the others in the attack.   But the jury should  have been  directed  that  if  they found  there  was  no  active  assistance  or encouragement by the appellant until after the wounding, he could not be guilty as a party under s 66(1).

[26]     The jury would have had a clearer picture if the Judge had, when dealing with each of the essential elements, described these by reference to the relevant facts and the competing contentions of the Crown and defence in relation to each.  To take an example, one of the critical factual issues was the extent of the appellant’s involvement in the incident.  Under s 66(1), the first important issue was whether he actively assisted or encouraged the stabbing.   That depended on whether, as the Crown contended, the appellant ran with the others towards the complainant and what his involvement was, if any, prior to the stabbing.   The Judge should have identified the competing contentions on that issue.  For the Crown, it was contended he was part of the group running towards the complainant and that, even if the appellant was behind the others, he was sufficiently close to see what was happening and he joined in with the kicking and punching of the complainant.   On the other hand, the defence contention was that the appellant was some distance back from the others and did not take any part in the assault until after the stabbing.

[27]     To take another example, the second critical issue under s 66(1) was whether any  assistance  or  encouragement  offered  by  the  appellant  was  done  with  the intention that the complainant would suffer really serious harm.  That depended in turn on whether the appellant was aware the other occupants of the car had a knife. The Crown contended he was aware of the knife from an early stage or at least when he saw it being used.  Whereas the defence submitted he was not aware of it until he saw it being used to stab the complainant.  This same factual issue was also relevant to whether, in terms of s 66(2) the appellant was aware that a wounding causing really serious harm could well result from the assault.   This factual issue and the competing contentions should have been highlighted.

[28]     The over-emphasis of the Crown case arose in part because the Crown relied crucially on the appellant’s video statement to the police.  It was natural the Crown would place substantial reliance on that statement but, unusually, the Judge read to the jury lengthy passages from the transcript of the video interview covering some seven pages of the record of his summing up.  We have some concern the recitation of  these  passages  from  the  video  interview  may  have  left  the  jury  with  the impression the Judge was adopting the Crown’s submission that they should rely on this material to support the Crown’s case.

[29]     We are sure this was inadvertent because, at some points, the Judge did refer to the contentions of the defence, but the heavy emphasis on the appellant’s video statement led to a significant imbalance in favour of the Crown case.   That could have been avoided if the Judge had adopted the step by step process of dealing with each of the critical elements and identifying the competing contentions in relation to each.  The jury had the transcript of the video statement available to them and should have been left to read it for themselves.

[30]     We would add that the appellant’s admission he was aware of the broken bottles could have supported the Crown case under s 66(2) that the appellant was aware a wounding could well happen, even though the wounding was, in the end, inflicted by a knife.  The Judge declined a request by the prosecutor to recall the jury to address them on this point.

Conclusion

[31]     We are satisfied the identified defects in the summing up are such that there was a real risk of a miscarriage of justice.  The appeal must therefore be allowed. The sentence is quashed in consequence.  A re-trial is ordered.

[32]     We mention one final matter.  The admission made by the appellant in his video interview provided evidence upon which he could at least have been convicted of assault.   It is entirely a matter for the Crown to determine what charges are included in the indictment.  But if the Crown proceeds at the new trial solely under s 188(1), the Judge presiding at the retrial should consider reminding the jury they

must focus on whether the Crown has proved that charge and that they should not convict merely because they consider the appellant may be guilty of some lesser charge.

Solicitors:

Ferguson Tuilotolova, Manukau, for Appellant

Crown Law Office, Wellington