R v Fane

[2021] NZHC 1166

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI 2020-009-001480

[2021] NZHC 1166

THE QUEEN

v

SAMUEL FANE AND

SARA-LEE TAREI

Hearing:	18 May 2021
Appearances:	A J Pollett and J M Sutton for the Crown S J Lance and S N B Wimsett for Mr Fane D J Dufty for Ms Tarei
Judgment:	24 May 2021
Reissued:	12 August 2021

REASONS JUDGMENT OF VAN BOHEMEN J

[On application for discharge under s 147 of Criminal Procedure Act 2011]

This judgment was delivered by me on 24 May 2021 at 3.30pm and

re-delivered by me on 12 August 2021 in accordance with Criminal Procedure Rules 2012, r 1.6.

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor (Pollett Legal Limited) Tauranga S J Lance, Barrister, Auckland

D J Dufty, Barrister, Auckland

S N B Wimsett, Barrister, Auckland

R v FANE & TAREI (Reasons judgment for discharge under s 147) [2021] NZHC 1166 [24 May 2021]

[1]    At the conclusion of the Crown case on 18 May 2021, Mr Dufty applied under s 147 of the Criminal Procedure Act 2011 for the charge against Ms Tarei to be dismissed.

[2]    After hearing submissions from Mr Dufty and Ms Pollett for the Crown, I retired for 45 minutes to deliberate and to read the decisions in R v Johnson1 and Soles v R2 to which Mr Dufty had referred.

[3]    I returned to court and dismissed the application. I said my reasons would follow. This judgment sets out my reasons.

The charge against Ms Tarei

[4]    The charge against Ms Tarei is that she was an accessory after the fact to murder in that, knowing her partner, Samuel Fane, to have been a party to murder, she assisted him in order to enable him to avoid arrest.

[5]    As set out in the Jury Issues paper given to the Jury before closing addresses by the Crown and the defence, in order to find Ms Tarei guilty of the charge, the jury must be sure that:

(a)Samuel Fane committed a murder or was a party to a murder; and

(b)Ms Tarei knew that Samuel Fane had committed a murder or was a party to murder; and

(c)With that knowledge, Ms Tarei assisted Samuel Fane; and

(d)Ms Tarei’s assistance was for the purpose of helping Samuel Fane to avoid being arrested.

1      R v Johnson [2020] NZHC 1036.

2      Soles v R [2015] NZCA 32.

Relevant background

[6]    On the evening of 9 February 2020, Anthony Fane, Samuel Fane’s older brother killed his partner, Jessie-Lee Booth, while their two young children were asleep at their home at Lynwood Place in Tauranga. Anthony Fane believed that Jessie-Lee had been having an affair with Paul Lasslett, the owner of a property at 40A Ormsby Road, Omanawa, where Anthony Fane and Jessie-Lee Booth had previously lived.

[7]    Anthony Fane packed the two children into his car and drove to his mother’s house in Auckland, arriving  in  the  early  hours  of  10  February  2020.  Later  on 10 February 2020, Anthony Fane spent time with Samuel Fane and, later again, with the oldest brother, Jesse Fane. It appears Ms Tarei was present for some of the time when the brothers were together, but there is no evidence that Ms Tarei or Samuel Fane were present when Anthony Fane told Jesse Fane that he intended to confront and to kill Paul Lasslett.

[8]    On 11 February 2020, Samuel Fane exchanged text messages and had a telephone conversation with his cousin, Rerepo Nicholas, who lived at Waitakaruru, about obtaining bullets because he was in urgent need and in a life or death situation. Mr Nicholas arranged for his nephew, who was staying at his house, to leave some bullets in a letterbox outside the property. In the event, the bullets were never collected.

[9]    Later on 11 February 2020, Samuel Fane and Anthony Fane drove to Tauranga in a blue Ford Territory, a car usually used by Samuel Fane but registered to Mrs Tarei. Anthony Fane had a cut down .22 firearm in his backpack. At some point that afternoon, Samuel Fane and Anthony Fane also obtained a shotgun.

[10]   Samuel Fane and Ms Tarei exchanged text messages as the brothers travelled south. In particular:

(a)At 11.44, Mr Fane to Ms Tarei:

Me 2. Iloveyou babe we leaving now

(b)At 11.45, Ms Tarei to Samuel Fane:

Iloveyou! Please come home today!

(c)At 11.47, Samuel Fane to Ms Tarei:

Ill try my best babe I just cant let my brotha do it alone. Iloveyous with all my heart 4eva okay. My card in in the kitchen I told jess 2 tell u wea it it

(d)At 11.49, Ms Tarei to Samuel Fane:

I know babe! Weloveyou! Foreever! Be safe and I’ll see you when you come home xxxxx

[11]   Later in the evening of 11 February 2020, Samuel Fane and Ms Tarei exchanged further text messages:

(a)At 18.53, Samuel Fane to Ms Tarei:

Iloveyoouz babe im sorry 4 wateva happenz. Always tell [redacted] i love her and remind her everyday im her best friend.. see uz in a lil bit xox

(b)At 18.54, Ms Tarei to Samuel Fane:

Weloveyou! Xx please come home now!

[12]   At 19.18 on 11 February 2020, the blue Ford Territory was filmed on CCTV driving up Omanawa Road in the direction of Ormsby Lane.

[13]   At 19.39 on 11 February 2020, the blue Ford Territory was filmed on CCTV arriving at 40A Ormsby Road. Anthony Fane was filmed getting out of the driver’s seat. Samuel Fane is partially filmed getting ready to exit the front passenger seat.

[14]   Daniel De Martin, a person working at the end of the property, heard a volley of gun shots. He said he saw two men with guns firing into the converted shed where Paul Lasslett lived. The two men ran to their car and reversed rapidly up the road.  Mr De Martin said shots were fired in his direction before the car turned around and drove away.

[15]   Mr De Martin found Paul Lasslett and Nicholas Littlewood, who had been waiting for Mr De Martin with Paul Lasslett, dead or dying from shotgun and bullet wounds.

[16]   At 19.39, the blue Ford Territory was filmed on CCTV driving down Omanawa Road away from Ormsby Lane.

[17]   From 20.13, Samuel Fane and Ms Tarei exchanged further text messages. In particular:

(a)At 20.13, Samuel Fane to Ms Tarei:

Meet us in waitak plz asap.

(b)At 20.14, Ms Tarei to Samuel Fane:

Gonna use $30 on card for gas. I’ll leave now

(c)At 20.15, Samuel Fane to Ms Tarei:

Algud

[18]   At 20.20 Ms Tarei was filmed on CCTV at a service station in Papakura putting petrol into her silver Toyota.

[19]Ms Tarei and Samuel Fane then had a further text exchange:

(a)At 20.25, Ms Tarei to Samuel Fane:

Coming now

(b)At 20.25, Samuel Fane to Ms Tarei:

Thank u

[20]   Ms Tarei met Samuel Fane at Rerepo Nicholas’s house at Waitakaruru. Later that evening, Samuel Fane and Ms Tarei returned to Auckland. The blue Ford Territory was subsequently found parked up Rerepo Nicholas’s driveway, covered with a tarpaulin and with its licence plates removed.

[21]   Ms Tarei, Samuel Fane and their daughter, then drove to Hamilton. They arrived in the early hours of 12 February 2020 at the home of Mrs Tarei’s brother, Karewa Tarei, and stayed the night. The next morning, 12 February 2020, they drove to Tūrangi and then Wellington. In the course of the journey, Ms Tarei booked ferry tickets for herself, her daughter and Samuel Fane, using a family nickname for Samuel Fane’s ticket. Mr Tarei also exchanged text messages with another brother, Bon-Scott Te Poono, and arranged for herself and her family to stay with him.

[22]   At 20.46 on the evening of 12 February 2020, while being driven to and waiting at the ferry terminal, Samuel Fane had a telephone conversation with his brother, Cody Fane, who was then resident at South Auckland prison. The call lasted for almost two hours. The call was recorded. Samuel Fane joined Anthony Fane to the call for the period. Ms Tarei and her daughter could be heard speaking to each other and also to Samuel Fane at various points in the conversation.

[23]   The brothers discussed, in poorly disguised terms, what had had happened at 40A Ormsby Road and what was going to happen next. Among other things, Samuel talked about what he had done, his unsuccessful effort to return the shotgun to whoever had provided it, and how he might get the gun on the ferry if they were not able to get a place for the car on the ferry. He also talked about changing his appearance.

[24]At various points in the call, Samuel Fane spoke to and about Ms Tarei.

[25]   After crossing Cook Strait on the night of 12 February 2020 and then driving south, Samuel Fane, Ms Tarei and their daughter arrived at Mr Te Poono’s house at New Brighton in Christchurch on the morning of 13 February 2020. In the early afternoon of 13 February 2020, Ms Tarei purchased razor blades, nappies and other items from a supermarket in New Brighton.

[26]   On the evening of 13 February 2020, Anthony Fane was killed near Tauranga in an incident with the Police.

[27]   On the morning of 14 February 2020, the Police came to Mr Te Poono’s house and arrested Samuel Fane. When he was arrested, Samuel Fane’s head was shaven and he had hair on his shoulder.

Submissions of counsel

[28]   Mr Dufty submitted that there was no evidence of Ms Tarei having any knowledge that a murder had been committed or that Ms Tarei had offered assistance to Mr Fane with such knowledge upon which a properly directed jury could not reasonably convict Ms Tarei.

[29]   Mr Dufty referred to R v Johnson,3 a decision in which Ellis J dismissed a charge of being an accessory after the fact to murder because she considered that any inferences as to the defendant’s knowledge that the deceased person had been shot or had been murdered were not reasonably available on the evidence.4

[30]   Mr Dufty submitted that the analysis in R v Johnson was applicable to the present case because there was no evidence that Ms Tarei knew of any plan to commit a murder or had seen, been told of or otherwise knew of any murder or of Mr Fane being a party to murder.

[31]   Mr Dufty submitted that to say that Ms Tarei must have known that Samuel Fane had been involved in the killing of Paul Lasslett and Nicholas Littlewood because she was Samuel Fane’s partner and had travelled down to Wellington and then to Christchurch with him was simply speculation. Mr Dufty also referred to the Court of Appeal’s decision in Soles v R,5 in which the Court had held that wilful blindness did not amount to actual knowledge.

[32]   Ms Pollett for the Crown noted that the relevant period in the Charge List was 11 to 14 February 2020 and that Ms Tarei’s knowledge of events could occur at any point along that continuum. Ms Pollett said the text messages Ms Tarei and Samuel Fane exchanged on 11 February 2021, the fact Samuel Fane contacted Ms Tarei within

3      R v Johnson, above n 1.

4 At [23].

5      Soles v R [2015] NZCA 32, above n 2.

a short space of time after the brothers had left 40A Ormsby Road that evening and asked her to meet them at “Waitak”, and Ms Tarei’s unquestioning response and almost immediate departure after receiving that text message showed that she knew what Samuel and Anthony had been intending, knew that that intention had been realised, knew where to go to meet Samuel Fane and was acting to assist him to avoid arrest.

[33]   Ms Pollett also submitted that evidence of Ms Tarei’s  assistance included   Ms Tarei driving Samuel Fane and their daughter south from Auckland, arranging accommodation with her relatives in Hamilton and in Christchurch, purchasing ferry tickets and had purchasing a razor in Christchurch which Samuel Fane had used to shave his head in an attempt to change his appearance.

Analysis

[34]   I  was  satisfied  there  were  significant  differences  between  the  facts  in   R v Johnson,6 and those in the present case. In particular, the nature of the acts leading to the charges of murder and to the charges of being an accessory after the fact, the nature of the relationships between the party charged with murder and the party charged with being an accessory after the fact are significantly different. In addition, the bases for inferring knowledge on the part of the party charged with being an accessory after the fact were significantly different.

[35]   While there was little direct evidence of what Ms Tarei did in Auckland on 10 and early 11 February 2020, there was a continuing record of her relevant actions from the time she and Samuel Fane exchanged text messages as he headed south with Anthony Fane on 11 February 2020. There was also the evidence of the three brothers’ phone conversation which took place while Samuel Fane, Ms Tarei and their daughter were in Wellington waiting for the ferry.

[36]   For these reasons, I was satisfied there was ample evidence from which a properly directed jury could infer that:

6      R v Johnson, n 1.

(a)Samuel Fane had accompanied Anthony Fane to Tauranga for the purpose of killing Paul Lasslett; and

(b)Ms Tarei knew that Samuel Fane had accompanied Anthony Fane to Tauranga for the purpose of killing Paul Lasslett; and

(c)Knowing that the purpose of the journey to Tauranga had been achieved, Ms Tarei had actively assisted Samuel Fane to avoid arrest by driving to Waitakaruru to collect him and then driving him with him and their daughter to Wellington, arranging accommodation with her relatives in Hamilton and in Christchurch, purchasing ferry tickets and purchasing a razor in Christchurch; and

(d)Ms Tarei had provided that assistance for the purpose of assisting Samuel Fane to avoid arrest.

[37]   For these reasons, I dismissed the application to dismiss the charge against Ms Tarei.

G J van Bohemen J