R v Johnson
[2019] NZHC 489
•19 March 2019
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2017-027-000774
[2019] NZHC 489
THE QUEEN v
PAUL MALCOLM JOHNSON LINTON GORDON MCINTYRE MAURICE JOHN RETI
FRANK KOKIRI ROTA JASON WIREMU WILLIAMS
Hearing: 28 February 2019 Appearances:
M B Smith and S J Barnaart for the Crown N S Leader and A Harvey for P M Johnson A J Holland for L G McIntyre
W D McKean and J L Tulloch for M J Reti J A G Moroney and S Thode for F K Rota D J Blaikie for J W Williams
Judgment:
19 March 2019
JUDGMENT OF POWELL J
[Reasons for Ruling (No. 3)]
This judgment was delivered by me on 19 March 2019 at 4 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v JOHNSON & Ors [2019] NZHC 489 [19 March 2019]
[1] On 27 February 2019, following the conclusion of the Crown case against the defendants, I issued Ruling (No. 3) that the Crown could not rely upon s 66(2) of the Crimes Act 1961 as a basis for liability against the defendants in this trial. These are the reasons for that Ruling.
Background
[2] The Ruling came in the course of a trial in which four of the five defendants (Paul Johnson, Linton McIntyre, Frank Rota and Jason Williams) were accused as principals in the kidnapping, wounding, injuring, and aggravated robbery of four complainants in Paihia on 10 March 2017, with the offences having been committed with the use of a firearm.
[3] In addition to charging those four defendants as principal offenders the Crown also alleged that the four were, in the alternative, liable as parties under 66(1) of the Crimes Act 1961 and, together with the defendant Maurice Reti who had been in custody at the time of the 10 March 2017 incident, were also being pursued as parties pursuant to s 66(2) of the Crimes Act. It was this alternative basis for the liability of the defendants, including Mr Reti, that was the subject of Ruling (No. 3).
Section 66(2)
[4]Section 66(2) provides:
Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[5] It is not in dispute that in order to establish liability under s 66(2) the Crown must prove beyond reasonable doubt that:1
(a)the offence to which the defendant is alleged to be a party was committed by a principal offender; and
(b)there was a shared understanding or agreement to carry out something that was unlawful; and
1 Ahsin v R [2014] NZSC 153 at [102].
(c)the person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal; and
(d)the offence was committed by the principal in the course of pursuing the common purpose; and
(e)the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.
[6] The focus of Ruling (No. 3) was on the Crown’s articulation of the second of these requirements, “a shared understanding or agreement to carry out something unlawful”, commonly referred to as the “unlawful common intention.” There is no dispute that the articulation of the unlawful common intention may develop in the course of the Crown’s evidence. As William Young J explained in Ahsin:2
In prosecutions arising out of group violence, such as the present, it will not always be clear to the prosecutor at the start of the trial just how the evidence will come out. For this reason, it is generally appropriate for a prosecutor to ensure that all realistic options as to party liability remain on the table. But once all the evidence has been completed, a prosecutor should usually be able to discern the strongest basis upon which the Crown case can be presented to the jury.
The Crown’s articulation of the unlawful common intention in the course of the trial
[7] The Crown case in summary was that the 10 March 2017 incident took place as part of a wider operation, instigated by Mr Reti, for the other defendants to locate two individuals, Boy and Sarina, who had allegedly absconded with Mr Reti’s property, in order for his property to be retrieved, and for property taken from Boy and/or Sarina in compensation. In his opening to the jury, Mr Smith described the unlawful common intention in the following terms:
To locate Sarina and Boy and recover Mr Reti’s property by whatever means necessary to extract revenge.
[8] At the conclusion of the Crown evidence a number of applications were made for the dismissal of some or all of the charges in relation to different defendants pursuant to s 147 of the Criminal Procedure Act 2011. These were led by an
2 At [242].
application on behalf of Mr Reti, who argued that the Crown could not proceed pursuant to s 66(2) against Mr Reti because it had failed to exclude, as a matter of law, other unlawful common intentions present on 10 March 2017 to which Mr Reti was not party. The Crown’s formulation of the unlawful common intention as it involved Mr Reti was accordingly of critical importance.
[9] In the course of submissions on the application, Ms Barnaart for the Crown confirmed that the unlawful common intention relied upon by the Crown could now be articulated in the following terms:
To locate Sarina and Boy and recover Mr Reti’s property, and property belonging to Boy and Sarina, by whatever means necessary to extract revenge.
[10] Significantly, Ms Barnaart confirmed that a specific reference to violence was not relied on by the Crown as part of the unlawful common intention, but rather any violence was conceptualised as being a probable consequence of the unlawful common intention identified.
[11] I reserved my decision on Mr Reti’s application and it was followed by similar applications by Mr Blaikie and Mr Holland on behalf of Mr Williams and Mr McIntyre respectively. In relation to the s 66(2) issue Mr Blaikie focussed his submission on the lack of obvious unlawfulness in the Crown’s formulation of the unlawful common intention.
[12] Adjourning overnight I had the opportunity to consider a pre-trial decision of Moore J3 the details of which had not been specifically referred to in submissions to that point, but which was clearly relevant to the issue. In the context of this case, Moore J had specifically considered, prior to the trial commencing, whether a common intention could be identified that was unlawful. While not binding on me, Moore J’s conclusions were obviously of significant persuasive weight given His Honour had analysed the same evidence relied upon by the Crown at trial to provide information about Mr Reti’s intentions. Because Mr Reti was in custody prior to the incident of 10 March 2017, the primary evidence for the establishment of a common intention, unlawful or otherwise, was intercepted telephone communications between Mr Reti,
3 Reti v NZ Police (s 147) [2018] NZHC 2060.
his daughter and various of the defendants. After considering the phone intercept, His Honour had concluded:4
In summary, reading the communications as a whole there is sufficient evidence that there was a shared understanding between Mr Reti, Mr Rota, Mr Williams and Mr McIntyre to carry out something unlawful, namely to use violence, threats of violence and intimidation in order to locate Sarina and Boy.
[13] It was apparent that while Moore J had considered that a formulation set out was available to the Crown, that formulation quite clearly had not been adopted by the Crown at trial. Upon the resumption of argument, I therefore sought further submissions from all counsel on the articulation of an unlawful common intention in the light of Moore J’s conclusions. Following further discussion, the proceedings therefore adjourned to give the Crown an opportunity to consider its position, in the light of Moore J’s conclusions and the discussion to that point.
[14] At the end of the adjournment the Crown articulated a new formulation of the unlawful common intention, specifically:
Shared understanding between the defendants to locate Sarina and/or Boy using intimidation including threats of violence and/or violence.
[15] It was immediately obvious that this new articulation was plainly inadequate. It neither dealt with the wider property issues, nor indeed did it follow the formula identified by Moore J. I considered whether to give the Crown more time to reconsider its position. This course was opposed by defence counsel who noted that the jury had already been kept waiting for over a day at that point, and that a formulation significantly different from opening would raise real issues of prejudice for the defendants. The Crown was however invited to reconsider its position.
[16] In the end, Ms Barnaart confirmed that the Crown’s final articulation of the unlawful common intention it relied upon for the purposes of this trial was as formulated the previous day, namely:
To locate Sarina and Boy and recover Mr Reti’s property, and property belonging to Boy and Sarina, by whatever means necessary to extract revenge.
4 At [44]. It is not clear from the judgment why Mr Johnson was omitted from the formulation.
[17] Upon confirmation that this was the final formulation by the Crown, defence counsel sought a ruling that the statement of unlawful common intention was inadequate and, as a result, the Crown should not be able to rely on s 66(2) as a basis for liability against any of the defendants.
Discussion
[18] As noted at [6] above, some latitude must be given to Crown counsel to adjust the formulation of an unlawful common intention following the presentation of the Crown evidence. Such latitude is not open-ended however; a defendant is entitled to understand the basis of the case against him or her prior to electing to give evidence, while a question trail and summing up cannot be prepared until the Crown has clearly articulated the unlawful common intention it seeks to rely upon.
[19] In this case the final Crown formulation was clearly problematic on many levels; not least of which the drafting is and remains ambiguous and otherwise lacks precision. In particular, the phrase “by whatever means necessary” was not defined and was modified and apparently limited in turn by the phrase “to extract revenge”, while not specifying from whom revenge was sought.
[20] Even more fundamentally, as Mr Blaikie and Mr Holland in particular noted, the Crown’s final statement failed to clearly identify an unlawful common intention. As Mr Blaikie pointed out, locating Boy and Sarina and recovering Mr Reti’s property was not on its face unlawful, nor, without more, was locating and/or removing property belonging to Boy and Sarina, as it would not be unlawful if such property was removed by consent.
[21] Likewise, “by whatever means necessary” is also not necessarily unlawful, for example simply asking where Boy and Sarina may be is not unlawful, particularly given Ms Barnaart had already confirmed that violence was not a part of the Crown’s articulation of the common intention, rather was a probable consequence of the common intention as drafted. The Crown’s final formulation of the common intention can be contrasted with that identified by Moore J where an entirely unlawful intention was clearly identified through the use of “violence, threats of violence and intimidation” in order to achieve the identified objective of finding Boy and Sarina.
[22] At best, the common intention articulated by the Crown in this case comprised a mixture of lawful and unlawful purposes. That is however not sufficient for the purpose of informing the defendants of the case against them under s 66(2), nor indeed for the purposes of drafting a question trail for the jury. The jury can only be confused if a mixed model is relied upon by the Crown. This is because, without further elaboration, the Crown’s articulation could not be put into the question trail in its current form, the formulation of which would permit the jury to answer yes to that statement of common intention notwithstanding those purposes were lawful. To be able to be put before the jury, the formulation relied on by the Crown must exclude the possibility of a shared intention that was lawful.5
[23] In those circumstances, and the pressing need for the defendants to know the case against them with clarity prior to determining whether to give evidence, I concluded there was no option but to issue Ruling (No. 3) precluding the Crown from relying on s 66(2).
Powell J
5 Iti v R [2012] NZCA 492 at [95]. In s 66(2) the expression “unlawful purpose” should bear the specific meaning of a purpose to commit a criminal offence. In Iti v R the Court of Appeal endorsed the trial judge’s direction that a lawful purpose has to be one that is not criminal.