R v Kuru - [2021] NZHC 3495

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA

WHANGANUI ROHE

CRI-2018-83-1481

[2021] NZHC 3495

THE QUEEN

v

DAMIEN KURU

GORDON RUNGA

Counsel:
C B Wilkinson-Smith and C A Middleton for Crown P M Keegan and J H C Waugh for Mr Kuru

I M Antunovic, C L Parkin and R E O’Hagan for Mr Runga

Date:

16 December 2021

REASONS JUDGMENT OF ELLIS J

(Participating Charge: Section 147)

[1] Both defendants were charged with the murder of Mr Kevin Ratana and with participating in an organised criminal group under s 98A of the Crimes Act 1961.1

[1] In the context of giving sentence indications to two of the original co- defendants (Messrs Fantham-Baker and Rogerson), I raised the question of whether the Crown case supported convictions under s 98A. As a result, neither Mr Fantham- Baker nor Mr Rogerson pleaded guilty to that charge, although they did to

1 Mr Runga was charged with murder as a principal but in the alternative as a s 66(2) party. Mr Kuru was charged only as a secondary party, under s 66(2). At the end of the trial, the jury found both Mr Runga and Mr Kuru guilty of manslaughter.

R v KURU & RUNGA [2021] NZHC 3495 [16 December 2021]

manslaughter and murder (as s 66(2) parties) respectively. Their counsel have also since filed submissions supporting my tentative view, albeit on different grounds.

[2] On 17 November the Crown closed its case against Mr Kuru and Mr Runga. The Crown’s evidence at trial did not change the view I had earlier expressed, which was essentially based on a legal proposition. I therefore heard argument about whether I should dismiss the participating charges against the defendants. After hearing that argument, I dismissed the participating charges, with reasons to follow. These are those reasons.

The issue

[3]Section 98A relevantly provides:

98A Participation in organised criminal group

(1)Every person commits an offence and is liable to imprisonment for a term not exceeding 10 years who participates in an organised criminal group—

(a)knowing that 3 or more people share any 1 or more of the objectives (the particular objective or particular objectives) described in paragraphs (a) to (d) of subsection (2) (whether or not the person himself or herself shares the particular objective or particular objectives); and

(b)either knowing that his or her conduct contributes, or being reckless as to whether his or her conduct may contribute, to the occurrence of any criminal activity; and

(c)either knowing that the criminal activity contributes, or being reckless as to whether the criminal activity may contribute, to achieving the particular objective or particular objectives of the organised criminal group.

(2)For the purposes of this Act, a group is an organised criminal group if it is a group of 3 or more people who have as their objective or one of their objectives—

…

(c) the commission of serious violent offences …;

…

[4] In turn, the term “serious violent offences” is defined…

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 Kuru

Details

AGLC: R v Kuru [2021] NZHC 3495
Case: [2021] NZHC 3495
Decision Date: 16 December 2021

CaseChat Overview and Summary

The case of R v Kuru involved charges against Damien Kuru and Gordon Runga, who were charged with the murder of Mr Kevin Ratana and with participating in an organised criminal group under section 98A of the Crimes Act 1961. The defendants were found guilty of manslaughter and murder (as 66(2) parties) respectively. The court had to decide whether the Crown case supported convictions under section 98A, which pertains to participation in an organised criminal group. The defendants argued that the charges should be dismissed on the basis that threatening and damaging property could not qualify as a "serious violent offence" for the purposes of section 98A, as neither is an offence punishable by more than seven years' imprisonment. The Crown attempted to counter this argument by asserting that the possession of lethal weapons by the group during the confrontation with Mr Ratana gave rise to the requisite serious risk to life or of serious injury, making threatening to kill a "serious violent offence."

The court found that section 98A required proof of the existence of an organised criminal group with a specified criminal objective, such as the commission of serious violent offences. The court considered whether an offence that did not include the element of conduct that gives rise to a serious risk of serious harm or entails an intent to inflict such harm could be elevated to a "serious violent offence" by dint of the particular facts of an individual case. The court concluded that the charge under section 98A could not stand, as threatening to kill did not require proof of conduct that involved either loss of a person's life or serious risk of loss of a person's life, or serious injury to a person or serious risk of serious injury to a person.

The court dismissed the charges under section 98A against the defendants for the reasons outlined above. The court also considered the potential tension between the parallel charges under section 66(2) and section 98A in a case such as the present. The court ultimately decided that the charges under section 98A should be dismissed, as the Crown's argument could not be sustained under the law.

Orders