R v Karauria
[2017] NZHC 2170
•22 August 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANTS / PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2016-087-000346
[2017] NZHC 2170
THE QUEEN v
GENE ELLEN KARAURIA
and
LENEITH CHARLES MOEKE
Hearing: 7-11, 14-18 and 21-22 August 2017 Counsel:
H J Sheridan and J A Heerdegen for the Crown R O Gowing for the Defendant, Karauria
G R Tomlinson for the Defendant, Moeke
Judgment:
22 August 2017
Reasons:
7 September 2017
REASONS JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 7 September 2017 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
R v KARAURIA and MOEKE [2017] NZHC 2170 [22 August 2017]
Registrar/Deputy Registrar Date:
Introduction
[1]On 22 August 2017, I issued a results judgment in relation to:1
(a)the Crown’s application to amend charges 13, 14, 15, 16 and 17 and to split charge 2 into two separate charges; and
(b)applications by the defence under s 147 of the Criminal Procedure Act 2011.
[2] I allowed the Crown’s application to amend, except in relation to the splitting of charge 2. I dismissed the defence applications under s 147. My reasons for those rulings now follow.
Amendment of charges
[3] The application to amend charges 13 and 15 was not opposed. I granted the application in relation to those two charges by consent.
[4] Mr Tomlinson, on behalf of Mr Moeke, opposed the amendment to charges 14, 16, 17 and the splitting of charge 2 into two separate charges. Mr Gowing also opposed the splitting of charge 2 into two separate charges. Each charge is considered below.
Charge 14
[5] Charge 14 is a charge of assault with a weapon against Mr Moeke. It is alleged that between 1 January 2015 and 25 February 2016, he assaulted Mr T using a baton as a weapon. The particulars of the charge provide: “striking him with a wooden baton (half an hour after the occasion that his nose was broken)”.
1 R v Karauria and Moeke [2017] NZHC 2010.
[6] The Crown proposed to amend this charge to remove the particulars referred to in the parentheses. This reflected Mr T’s evidence that it was possible that his nose was broken on another occasion.
[7] Mr Tomlinson did not object to removing the particular regarding the fact that his nose was broken, but objected to the removal of “half an hour later” from the charge. He submitted that it was a critical part of the defence case that Mr T’s evidence could not be relied on in terms of timing and sequencing so it was important that it remain.
[8] As Ms Sheridan submitted, the exact time the offence took place is not an element of the offence which the Crown must prove. The Crown must simply prove that the offence took place between 1 January 2015 and 25 February 2016.
[9] Furthermore, given Mr T’s concession, removing the reference to the broken nose, without removing half an hour later, would not make any sense in the context of the charge. The submissions which Mr Tomlinson wished to make in relation to charge 14 could still be made to the jury. They are relevant to the reliability of the evidence to prove the charge, rather than the form of the charge. I dismissed the application in relation to this charge.
Charge 16 – assault with intent to injure
[10] Charge 16 is a charge of assault with intent to injure against Mr Moeke. The particulars of the charge are as follows: “punching him repeatedly as he mowed the lawns (the incident described by David Feilo)”.
[11] At trial, David Feilo accepted that it could have been pushing that he saw, rather than punching. The Crown therefore sought to amend the particulars of charge 16 to be “punching and/or pushing him repeatedly as he mowed the lawns (the incident described by David Feilo)”.
[12] Mr Tomlinson submitted that pushing cannot amount to an assault with intent to injure. Whilst he had no objection to the charge being amended to be punching and pushing, he objected to pushing being left to the jury in this charge.
[13] As a matter of law, pushing can amount to an assault with intent to injure. Whether the necessary intent can be found is a matter for the jury to infer from the force of the push and the surrounding circumstances. David Feilo described Mr Moeke as being very angry. He also described seeing Mr T fall down several times. Ultimately, I considered this was a question for the jury, rather than an issue concerning the form of the charge.
Charge 17
[14] Charge 17 is an assault with intent to injure charge against Leneith Moeke. The particulars relate to hitting and/or punching as described by [M M]. In her DVD interview she referred to multiple incidents of punching. In evidence, she confirmed she had only seen Mr Moeke hit Mr T once, and she had also seen him slap him a couple of times.
[15] The Crown sought to amend this charge to make it representative. It was originally charged as a representative charge in the charge notice, but it appeared not to have been transferred over into the charge list. I granted the application on the grounds that it corrected a clerical error, and did not result in prejudice to Mr Moeke.
Charge 2
[16] Charge 2 is a kidnapping charge against both defendants jointly. It is a representative charge, with particulars being specified as “chaining and/or tying him up in the shed”.
[17] Ms Sheridan said there were two separate occasions which the Crown relied on to prove this charge. The first occasion was where Mr T escaped his rope, ran away to James Street, and was then returned to the shed where he was tied up and beaten. The second related to an occasion where Mr T said he was tied up, with a rope around his neck, and used as a boxing bag by Mr Moeke. Mr Moeke faced an assault with intent to injure charge (charge 15) for Mr T being punched to the ribs on this occasion.
[18] The Crown sought to split this charge so as to make the boxing bag incident a separate charge. Ms Sheridan submitted that this would make it easier to direct the
jury on party liability in respect of this charge. The Crown case was that both defendants were liable as either a principal or party in relation to the first occasion, but Ms Karauria was only liable as a party on the boxing bag occasion.
[19] Both defendants opposed amendment on the basis that the Crown was effectively laying a new kidnapping charge and they were prejudiced by the fact that they were seeking to do it at the end of the trial.
[20] Section 20(1)(c) of the Criminal Procedure Act 2011 provides that a charge may be representative if “the nature and circumstances of the offence are such that the complainant cannot reasonably be expected to particularise dates and details of the offence”. Clearly two separate incidents could be identified from the details of the offending. In my view, a separate kidnapping charge in relation to the boxing bag incident should have been laid at the outset.
[21] This may not have been fatal to the application, had the particulars to the charge made it clear that this incident was being relied on by the Crown in addition to the other occasion on which he escaped from James Street. Section 17(4) provides that a charge must contain sufficient particulars of a charge to fully and fairly inform the defendant of the substance of the offence that is alleged. The particulars to charge 2 simply refer to chaining and tying up in the shed, without more. The focus at trial in relation to this charge was only on the first occasion. It was not at all obvious that the Crown was relying on the boxing bag incident to prove the kidnapping charge.
[22] I did not consider the defendants had received full and fair notice that this occasion was also relied on by the Crown. There was no medical evidence led in relation to rope burns or other injuries around the neck which might have corroborated Mr T’s account. Although Mr Tomlinson briefly cross-examined Mr T in relation to this occasion, the focus of his questioning was on the injury to Mr T’s ribs, and not the kidnapping aspects of the charge. Mr Gowing did not cross-examine Mr T in relation to this occasion at all.
[23] I accepted defence counsel’s submissions that the amendment effectively amounted to the laying of a new charge. Given the prejudice to both defendants, I declined to allow the amendment.
Applications for dismissal
[24] On behalf of Mr Moeke, Mr Tomlinson sought an order dismissing charge 26 (against M H). He also sought an order dismissing charges 5 to 15, 18 and 19. On behalf of Ms Karauria, Mr Gowing sought a dismissal of charges 20 to 24.
[25] The principles relevant to applications under s 147 of the Criminal Procedure Act 2011 are well known. In R v Flyger, the Court of Appeal said that “a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence, which if accepted, would as a matter of law be sufficient to prove the case”.2 The Court cautioned Judges to draw a distinction between the adequacy of evidence on the hypothesis of its acceptance, and proof of the charge on the basis of actual acceptance at a later stage.3
[26] The principles in R v Flyger were expanded on in Parris v Attorney-General. The Court of Appeal confirmed that “if the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds”. The Court also said that questions of credibility and weight must be left to the jury, the question being whether, as a matter of law, a properly directed jury could reasonably convict.4
Charge 26
[27] Charge 26 is a charge of assault with a weapon against Mr Moeke alone. It is alleged that he hit M H with a broom causing a gash to his head. There was no dispute that Mr Moeke hit M H with the broom, the only issue was whether he did so deliberately. During the cross-examination of M H there was the following exchange:
2 R v Flyger [2001] 2 NZLR 721, (2000) 18 CRNZ 624 (CA) at [13]. The Court of Appeal in Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [10] clarified that the use of the word “normally” in this sentence does not mean there are some circumstances in which a s 347 order may be made when the evidence is sufficient in law to prove the case.
3 R v Flyger, above n 2, at [16].
4 Parris v Attorney-General, above n 2, at [14].
Q.And Len then come out and he starts yelling at you and yelling at the dog?
A. Yes.
Q. And there was a broom at the back doorstep wasn’t there?
A. Yes.
Q.And has that got a white handle and did you say a white handle and a black brush or a black handle and a white brush, something like that?
A. White handle and a black brush
Q. And it’s the brush end of the broom that caught your head wasn’t it?
A. Yes.
Q.And so you're down by the clothesline trying to hold the dog and hold the lead?
A. Yeah.
Q.And Len’s behind you, yelling at the dog and yelling at you and trying to tell you what to do?
A. Yep.
Q. And he's trying to poke the dog with the end of the brush, isn't he?
A. Oh, yeah, that sounds about right.
Q.And he's pushing the brush end into the dog, to hold the dog still while you're trying to clip it on?
A. Yep.
Q.And he’d collected you, got your head when he tried to do that didn’t he?
A. Yeah, that sounds right.
[28] Mr Tomlinson submitted that this amounted to an acceptance by M H that the broom hit him by accident, and accordingly, no properly directed jury could reasonably convict on this charge.
[29] I did not consider the cross-examination amounted to an acceptance by M H that Mr Moeke hit him by accident. It simply amounted to an acceptance that events could have happened as Mr Tomlinson described them. Whether the unfolding of the events in that way amounts to an accident is a matter for the jury.
[30] Furthermore, the jury will need to consider all of the evidence to decide whether Mr Moeke hit M H deliberately with the broom. That includes the re- examination of M H as follows:
Q. Where was the dog when you were trying to tie the leash to the clothesline?
A. Um, I don't know I was too busy focussing on the line but, um, I don't know I think I can remember him just walking around maybe.
Q. Was he on the other end of the leash or was he off the leash?
A. He was off the leash.
Q. And when Leneith came out, what did he do?
A.Um, he was just, um, seeing if I could, if I was doing it and then like he come over and asked me why I wasn’t, like, couldn't get it on and he was trying to, um, calm Boss down at the same time 'cos I think he was being a egg and he, yeah, then I, um, I got – I was explaining to him that I couldn't do it and then, yeah.
Q. Did you see what Leneith was doing with Boss?
A. No, I was too busy focussing on the, um, leash.
Q. Did you hear what he was doing with Boss?
A. Yeah, he was like growling him and stuff.
Q. At what point did Leneith get the broom?
A. Um, –
THE COURT ADDRESSES ms sheridan – rephrase question (12:13:00) RE-EXAMINATION CONTINUES: ms sheridan
Q. When did Leneith get the broom?
A.Um, I think it was when Boss was like barking and stuff and like, like, um, being a egg and stuff, I don't know, yeah, when I was, yeah, I can't remember.
Q. When the broom hit your head –
A. Yeah.
Q. – where was Boss?
A. I don't know, I was, I was dazed, I don't know.
[31] It also includes M H’s evidence about feeling dizzy and dazed, about Ms Karauria taking him to the hospital, and the evidence of Mr Delamere regarding the wound which he considered needed stitches. Mr Moeke’s conduct after coming back from hospital was also evidence which the jury would need to consider when deciding whether or not Mr Moeke’s actions were deliberate or accidental.
[32] Overall, I considered there to be sufficient evidence from which the jury could find the charge proved. Whether the broom hit M H by accident, or whether it was deliberate, was a question for the jury to determine.
Charges 5 to 15, 18, 19 and 20 to 24
[33] Counsel for Mr Moeke and Ms Karauria applied to dismiss those charges which they said relied solely on Mr T’s evidence. They submitted that the evidence of Mr T was so unreliable that no properly directed jury could reasonably convict in reliance on this evidence.
[34] Neither defence counsel made submissions on a charge by charge basis. However, Mr Gowing referred me to Mr T’s evidence on the incidences involving the spade and axe to demonstrate the inherent unreliability of Mr T’s evidence.
[35] Mr T’s evidence in relation to being hit by the spade changed from the time he was first interviewed about it, to when he was cross-examined about it in Court. Initially the claim was made against Mr Moeke alone in relation to being hit once inside the kitchen. However, when giving evidence in Court, Mr T said he was hit with the spade by both Mr Moeke and Ms Karauria – first outside by Mr Moeke, and then inside by Ms Karauria. That was the first time any allegation of being hit with a spade had been made against Ms Karauria.
[36] Mr T’s evidence regarding use of the axe also changed from the description given in his first DVD interview. His initial evidence was that he got hit once by Mr Moeke for not doing dishes. That subsequently changed to getting hit by both Mr Moeke and Ms Karauria for not doing chores outside. There were differences in the order in which Mr Moeke and Ms Karauria are said to have hit him also. He also gave
evidence about being hit in exactly the same toe – which appears implausible in the circumstances.
[37] Mr Tomlinson referred me to R v Yang.5 That case concerned a pre-trial application to dismiss a charge under s 347 Crimes Act 1961, the predecessor to s 147. Duffy J reviewed the legal principles relevant to dismissal on the grounds of unreliable evidence and referred in particular to the decision in R v Lua.6 In that case, Baragwanath J delineated between those cases where tenuous evidence should be left to the jury, and those where a charge should be dismissed. His Honour said:7
Where the strength or weakness of the prosecution evidence depends rather on the view taken on whether a witness is reliable, the judge should allow the matter to be tried by the jury. But where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury could not properly convict upon it, it is his duty to stop the case.
… The jurisdiction is rather one of added constitutional protection: that no- one should be exposed to risk of verdict when the evidence is so slender that a conviction would be unsafe. The accused is entitled to a decision not only from a jury but, in advance of that, from the judge.
[38] Relying on those principles, Duffy J dismissed the single charge faced by Ms Yang on the grounds that there was no reliable evidence on which a properly directed jury could reasonably convict.
[39] I considered the present case to fall within the former of the two categories identified in Lua. The extent of the inconsistencies in Mr T’s evidence and the weight to be attributed to them are matters for the jury to evaluate. That evaluation would have to take into account the other evidence adduced at trial. In particular, the jury will have regard to Ms Breen’s evidence regarding the nature of Mr T’s intellectual disability, his suggestibility, and his difficulties in sequencing of events.
[40] I was satisfied that there was still evidence upon which the jury could find the charge proved, despite the changes in evidence. The core allegation underpinning the charges remained the same. That is, Mr T maintained his allegation that Mr Moeke assaulted or wounded him with a spade or an axe as the case may be. It was for the
5 R v Yang HC Auckland CRI-2008-004-17744, 26 February 2010.
6 R v Lua HC Auckland CRI-2006-092-4336, 24 April 2007.
7 At [3]–[4].
jury to decide whether Mr T’s confusion about the circumstances in which the alleged assault or wounding took place meant they could not rely on that particular evidence, or indeed the entirety of his testimony.
[41] Overall, I did not consider this to be a most unusual or extreme case where questions of credibility, weight and reliability should be removed from the constitutional role of the jury, and be determined by the Judge.
Result
[42] I made the orders set out in my results judgment of 22 August 2017 which are reproduced again for ease of reference:
(a)The Crown application to amend charges 14, 16 and 17 is granted;
(b)The Crown application to split charge 2 into two separate charges is declined;
(c)Mr Moeke’s application to dismiss charge 26 is declined;
(d)Mr Moeke’s application to dismiss charges 5 to 15 and charges 18 and 19 is dismissed;
(e)Ms Karauria’s application to dismiss charges 20 to 24 is dismissed.
Edwards J
Solicitors: Hollister-Jones Lellman, Tauranga Gowing and Co Ltd, Whakatane
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