R v Johnson - [2019] NZHC 489

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Johnson

Details

AGLC: R v Johnson [2019] NZHC 489
Case: [2019] NZHC 489
Decision Date: 19 March 2019

CaseChat Overview and Summary

The case of R v Johnson involved a trial of five defendants accused of kidnapping, wounding, injuring, and aggravated robbery with the use of a firearm in Paihia on 10 March 2017. The Crown alleged that the defendants were liable either as principals or as parties to the offences under the Crimes Act 1961. The central issue in this case was the Crown's ability to rely on section 66(2) of the Crimes Act 1961 as a basis for the defendants' liability, particularly focusing on the articulation of the "unlawful common intention." The court had to determine whether the Crown had adequately articulated a shared understanding or agreement to carry out something unlawful as required by section 66(2).

The court found that the Crown's articulation of the unlawful common intention was problematic. Initially, the Crown's formulation was to locate the victims and recover property by "whatever means necessary to extract revenge," but this was later modified to include intimidation, threats of violence, and violence. Despite these adjustments, the court found the final articulation to be ambiguous, lacking precision, and unclear in identifying an unlawful common intention. The phrase "by whatever means necessary" remained undefined, and the concept of extracting revenge was not specific. Additionally, the formulation included lawful purposes, such as locating individuals and recovering property, which was not inherently unlawful.

The court held that the articulation of the unlawful common intention was inadequate for the purposes of section 66(2). It was not sufficiently clear to inform the defendants of the case against them and could confuse the jury. Consequently, the court ruled that the Crown could not rely on section 66(2) as a basis for liability against the defendants. This ruling effectively precluded the Crown from pursuing the defendants on the basis of being parties to the crime under the statute.

Orders