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 in s 2 as meaning any offence:

(a)that is punishable by a period of imprisonment for a term of 7 years or more; and

(b)where the conduct constituting the offence involves—

(i)loss of a person’s life or serious risk of loss of a person's life; or

(ii)serious injury to a person or serious risk of serious injury to a person; or

(iii)serious damage to property in circumstances endangering the physical safety of any person; or

(iv)perverting the course of justice, where the purpose of the conduct is to prevent, seriously hinder, or seriously obstruct the detection, investigation, or prosecution of any offence—

(A)  that is punishable by a period of imprisonment for a term of 7 years or more; and

(B)   that involved, involves, or would involve conduct of the kind referred to in any of subparagraphs (i) to (iii)

[5]    At the time I first raised the issue giving rise to this judgment, my understanding of the Crown case against Mr Kuru and Mr Runga (and their co- defendants) under s 66(2) was that they each formed part of a group with a common intention to threaten the Mr Ratana and to damage his property, and that Mr Ratana’s murder was known to be a probable consequence of the prosecution of that purpose.

[6]    The point I made then was that neither threatening nor damaging property could qualify as a “serious violent offence” for the purposes of s 98A, because neither is an offence punishable by more than seven years’ imprisonment.2 And given that both s 66(2) and s 98A require some form of “combination”—the existence of a group that either shares an  unlawful  common  purpose (s  66(2)) or a criminal  objective  (s 98A)—it seemed logical to assume that the alleged shared purpose and the alleged shared objective would be the same.3

2      A threat that is not a threat to kill or to do grievous bodily harm would presumably be charged as a common assault. Under s 196 of the Crimes Act 1961, common assault is punishable by a term of imprisonment not exceeding one year.

3      It is this assumption that gave rise to the point subsequently raised by counsel for Mr Rogerson that laying both charges offended the rule against double jeopardy embodied in s 46 of the Criminal Procedure Act 2011. Section 46 effectively provides that a defendant cannot be convicted of two offences arising “from the same facts”. I discuss that point later in this decision.

[7]    The Crown responded by saying that the shared criminal objective in relation to the s 98A charge was different from the shared unlawful purpose under the s 66(2) charge. I was advised that, for the purpose of s 98A, the prosecution would say that the serious violent offence relied on was threatening to kill, which carries a maximum penalty of seven years’ imprisonment.4

[8]    Even putting to one side the unnecessary confusion caused by requiring a jury to deal with offences relating to the same events but involving two different (yet similar) shared purposes, there remained a problem. Proof of an offence of threatening to kill does not require proof of conduct that involves either:

(a)loss of a person’s life or serious risk of loss of a person’s life; or

(b)serious injury to a person or serious risk of serious injury to a person.

[9]    My view was that this disqualified threatening to kill from being a “serious violent offence” within the s 2 definition. If that was so, then the charge under s 98A could not stand.

[10]   The Crown sought to counter this further by saying that the s 2 definition permits account to be taken of the particular facts or circumstances of the individual case. So here the Crown said that the carriage of lethal weapons by the Black Power men, at the time the threat to kill was made, gave rise to the qualifying serious risk to life or of serious injury. The decision of Moore J in R v Cooper was relied on to support that position.5 I will come back to that decision shortly.

Discussion

[11]   In my view, it is clear beyond doubt that s 98A requires proof of the existence of an organised criminal group, which in turn requires proof that there is a group having one of the specified criminal objectives—here, the commission of serious violent offences. And the reference to the minimum penalty (7 years’ or more

4      Crimes Act 1961, s 306. There was evidence at trial that, immediately before the shooting, at least one of the Black Power protagonists (Mr Anthony Kuru) threatened to kill Mr Ratana if he did not leave the Castlecliff area.

5      R v Cooper [2017] NZHC 3275.

imprisonment) in the s 2 definition also makes it clear that, although the serious violent offence or offences do not need to be separately charged (or even committed), at least a degree of specificity must be required. As Keane J said in R v Ngaheu:6

[24] It follows that, at least where a group exists in embryo, as the Crown says is the case here, it can be constituted an ‘organised criminal group’ the moment that its members subscribe as an objective to one of the two forms of offending prescribed. The elected index offence, even if only ever an objective, then becomes the group’s crystallising attribute. Such an offence need not be committed, and in one case it has been held that participation in a group can occur after any [sic] has been committed.

[12]   So the question is whether “the elected index offence” can be one that does not have as one of its elements either conduct that, by and of itself, gives rise to a serious risk of serious harm (or a serious risk of death) or that entails a mental element involving an intent to inflict such harm. Can an offence that does not include such an element be elevated to a “serious violent offence” by dint of the particular facts of an individual case? Or, by specific reference to this case, does taking potentially lethal weapons to a planned confrontation turn threatening to kill into such an offence, notwithstanding that the Crown expressly does not allege that actual harm was intended?

The decision in Cooper

[13]   The five defendants in Cooper were also all members or associates of Black Power. The background involved an escalating series of incidents between that gang and members of the Mongrel Mob in Whakatane. It was anticipated by Police that tensions would be further inflamed due to a planned procession of a large number of Mongrel Mob members in Whakatane during the tangi for one of the gang’s senior patched members.

[14]   Despite arrangements designed to avoid any such confrontation, a group of Black Power members determined that there should be a show of force along the proposed processional route. They placed weapons in their cars in readiness. As matters eventuated, there were three separate but interrelated altercations between the rival gangs:

6      R v Ngaheu HC Rotorua CRI-2009-063-102, 1 April 2010 (footnotes omitted).

(a)what Moore J called “the service lane ambush”, involving Black Power members throwing rocks and bottles from a service lane at Mongrel Mob vehicles as they approached;

(b)what Moore J described as “the Arawa Road firearm standoff”, which mainly involved the trading of threats and obscenities between the two groups, but with shotguns thrice being discharged by Black Power members in the direction of the Mongrel Mob; and

(c)the “Douglas Street ambush”, which involved an ambush of the procession by Black Power members brandishing sticks, bats and projectiles.

[15]   All five defendants faced charges of rioting (punishable by two years’ imprisonment7) and of participating under s 98A. As well, two of them (Mr Harawira and Mr Biddle) were charged as parties to the unlawful possession of firearms, the use of a firearm against a law enforcement officer, and the discharge of a firearm with reckless disregard for the safety of others. Those charges arose out of the second (Arawa Road) incident just described. There can be no doubt that the latter two offences would qualify as serious violent offences for the purposes of s 98A.8

[16]   Moore J’s judgment related to an application under s 147 by all defendants in relation to all charges.

[17]   As far as the participating charges were concerned, the Judge began by setting out s 98A and referring to the Court of Appeal’s decision in Te Kahu v R.9 He then referred to the definition of “serious violent offences” and immediately noted:

7      Crimes Act 1961, s 87.

8      Sections 198A(1) and 198 respectively. Self-evidently, the actus reus of the s 198A offence— using a firearm against a law enforcement officer—carries with it a serious risk of serious harm. And similarly, the actus reus of an offence against s 198 involves discharging a firearm at any person, sending to any person/putting in any place an explosive device or setting fire to any property, and the mens rea involves an intent either to do grievous bodily harm (14 years’ imprisonment) or an intent or injure/reckless disregard for the safety of others (7 years’ imprisonment).

9      Te Kahu v R [2012] NZCA 473.

[29] Part 8 of the Crimes Act contains the  offences  involving  crimes against the person. Section 188(1) lists the offences which carry a maximum penalty of 14 years’ imprisonment. Section 189(1) lists the offences which carry a maximum penalty of 10 years and s 188(2) lists offences which carry a maximum penalty of seven years’ imprisonment. All three provisions deal with offending requiring proof of an actus reus or mens rea involving grievous bodily harm.

[18]   By and of itself, this paragraph suggests that Moore J thought (as I do) that it was the permanent, defining, legal features of the intended offending, rather than the variable factual features of the actual offending as it subsequently unfolded, that was relevant when ascertaining a group’s shared intention or “crystallizing attribute”.

[19]   After a brief discussion of the meaning of “participates”, Moore J then went on to address the essential elements of the other charges: rioting, unlawful possession of firearms, using a firearm against an enforcement officer, and discharge of a firearm with reckless disregard. He then considered the s 147 application in relation to each defendant separately, by reference to the charges that each of them faced. It will be remembered that only Mr Harawira and Mr Biddle were faced with charges punishable by more than seven years’ imprisonment.

[20]   On my reading of the Judge’s reasoning in relation to the participating charges against the various defendants, he largely proceeded on the basis that that charge could only be made out if there was evidence that the relevant defendant was part of a group having the shared common intention to participate in the Arawa Road (firearms) offending. Thus:

(a)the participating charge against Mr Cooper was dismissed because his involvement was said by the Crown to be confined to the service lane ambush, which Moore J did not think could be “elevated to the necessary level of serious violent offending within the meaning of s 2 of the Crimes Act”;10

10     Cooper, above n 5, at [57].

(b)the participating charge against Mr Harawira was not dismissed because there was evidence linking him with the Arawa Road (firearms) incident; and

(c)the participating charge against Mr Biddle was not dismissed because (the Judge said):11

There is evidence to infer that Mr Biddle was one of three or more people who shared the common objective of committing serious violent offences in the form of the nominated firearms charges. …

[21]   The confusion arises because of the way the Judge dealt with the participating charge against the remaining two defendants. I set out this part of his analysis in full:

(a)Rioting

[90]      On the charge of rioting Constable Seales’ evidence makes it plain that both defendants were part of a group of six or more persons acting together. The carriage of sticks and bats was accompanied by the wearing of balaclavas in the context of the attack on the procession which brought it to a halt.

[91]      Again, given the circumstances including the carriage of weapons, the wearing of balaclavas and blue clothing, and leaving the scene together at speed, the element of common purpose may be inferred. The circumstances are such that the involvement of the defendants goes beyond mere presence.

[92]      Furthermore, on the evidence before me both defendants were identified by the attending Police officers as members of the group.

(b)Participation in an organised criminal group

[93]      I am also satisfied that the elements of participation in an organised criminal group are made out. First, for the reasons already discussed, both defendants participated in a group of three or more people knowing their conduct contributed to the occurrence of criminal activity; in this case the attack on the funeral cortege and knowing that that criminal activity went to achieve the particular objective of the organised criminal group. The objective was the commission of serious violent offences which may be inferred from the nature of the weapons themselves and the observations of the witnesses as to the attack.

[22]   I therefore accept Mr Wilkinson-Smith’s submission that—as far as those two defendants were concerned—no specific “serious violent offence” was identified; the

11 At [81].

Judge’s reasoning appears to infer such an objective from the mere fact that they were carrying certain kinds of weapons.

[23]   But even on that analysis, there would be a problem in the present case. That is because—despite the co-defendants taking lethal weapons to the confrontation with Mr Ratana—the Crown has specifically and deliberately eschewed the suggestion that the group’s shared criminal purpose involved a physical attack that would pose the requisite risk in terms of the definition of “serious violent offences”. That was, no doubt, a tactical decision related to the s 66(2) murder charges because of the inherent tension between the seriousness of the unlawful common purpose and the foreseeable consequences of it. As the Supreme Court said in Edmonds v R:12

[49] The common purpose which is left to the jury is largely for the prosecutor to define. In a group violence case, there will often be a decision to be made as to where to pitch the alleged common purpose in terms of criminality. In this case, the common purpose was pitched at a high level of criminality – an intention to inflict serious violence. But the prosecutor could also have pitched it much lower, for instance to assault the deceased and the other members of his group. The lower the criminality of the alleged common purpose, the easier it will be to establish, but perhaps the harder it will be to show that the ultimate offence was recognised to be a probable consequence of its implementation. The higher the criminality of the alleged common purpose (and thus the closer it is to the offence eventually committed), the more difficult it may be to establish that particular defendants formed the intention to prosecute that common purpose, but the easier it will be to infer that such defendants (that is, those who did form that intention) knew that the ultimate offence was a probable consequence of its implementation. For instance if the Crown can establish that the common purpose was to attack the victim with baseball bats, it will usually not be difficult for the jury to infer that anyone who was a party to that common purpose would have realised that death or serious injury (depending on the consequences for the victim and the charges laid) was a probable consequence of its implementation.

[24]   I accept that it would have been open to the Crown to argue that, as in Cooper, the requisite group objective—of committing an offence that involves a serious risk of loss of life or serious injury to a person—could be inferred from the possession of lethal weapons by members of the group involved in the planned confrontation with Mr Ratana, a member of a rival gang. But it could not reasonably do so while also maintaining that the group’s only shared objectives were to commit different kinds of offence, which did not involve such conduct. Whether that offence was intimidation

12     Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445.

(which would not in any event qualify because of the relatively low maximum penalty) or threatening to kill makes no difference to that point.13

[25]   Although the foregoing discussion suffices, I think, to justify dismissal of the participating charge under s 147, I would add that I struggle conceptually with the laying of such a charge where the shared criminal objective alleged is the same as the offence that was actually then committed (but not, presumably, charged). That is not the purpose of s 98A, which is to permit prosecution for different, more minor, offending (which may well not, itself, constitute a serious violent offending) committed in the course of pursuing the more serious criminal (index) objective. But where the more serious index offence I actually committed (as was the case here, with threatening to kill) the only conceivable reason for laying a charge under s 98A instead of for the index offence would appear to be where s 98A happens to carry a higher maximum penalty. Use of s 98A in that way seems to me to be wrong in principle. While the commission of any offence in the context of a combination is potentially aggravating, the proper course (I would think) is to lay a charge for the index offence and, if conviction follows, for the combination simply to be taken into account as an aggravating factor at sentencing.

[26]   All that said, however, I accept that this is not the first case involving charging of the present kind. And I accept that if a literal, rather than purposive, approach is taken to s 98A it is conceivable that the elements of that charge could be made out even where the elected index offence is the offence that has in fact been committed. Despite the concerns just expressed, therefore, I do not consider that dismissal under s 147 could be warranted on that basis. Those concerns do, however, fortify my earlier conclusion that the participating charge here should be dismissed, for other reasons.

Duplicity

[27]   For  completeness,  I  mention  that  counsel   for  Mr  Rogerson  and   for   Mr Fantham-Baker also submitted that, in light of their clients’ guilty pleas to the

13 It may have been open to the Crown to allege that the group had multiple shared criminal objectives, including some qualifying serious violence offence (for example, wounding with intent to cause grievous bodily harm). Putting to one side the complexity to which such an approach would give rise when it came to directing the jury, the signal point is that the Crown did not, in this case, do so.

charges under s 66(2), the participating charges should be dismissed because a conviction for both could not survive a plea of previous conviction under s 46 of the Criminal Procedure Act 2011. That section relevantly provides:

If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under s 147 if the court is satisfied that the defendant has been convicted of—:

…

(b)       any other offence arising from those facts.

[28]   The Court of Appeal in Rangitonga v Parker held that an offence will arise from the same facts where there is a common punishable act or omission central to both the previous and the new charge.14 Whether that is so is necessarily fact dependent: a case based assessment of the substance of the facts giving rise to each of the charges by reference to the essential elements of the offence is required. Thus, in Filitonga v R the Court overturned convictions for causing grievous bodily harm with reckless disregard and criminal nuisance because both charges arose from the same act, namely the appellant (who was HIV positive) having unprotected sex with the complainant.15

[29]   In this case, the central punishable act in relation to the s 66(2) murder charge was forming a common intention with other persons in the group of Wanganui Black Power members16 to prosecute an unlawful common purpose (intimidating Mr Ratana and damaging his property) and to assist each other in doing so. The central punishable act in relation to the participating charge was participating in a group that had as its objective the commission of a serious violent offence (the Crown says threatening to kill Mr Ratana).

[30]   I am inclined to agree that, had the Crown maintained its position that the unlawful common purpose under s 66(2) and the group’s criminal objective under     s 98A were the same, then a duplicity problem might arise. But as already discussed,

14 Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796 at [41].

15 Filitonga v R [2017] NZCA 492, [2017] NZAR 1667.

16 The earlier convictions of Messrs Anthony Kuru, Hakaraia, Fantham-Baker and Rogerson meant that the jury could proceed on the basis that there was such a group and that it had at least four other members.

the Crown position on this altered, as a result of my original query.17 And in any event, given that the point was raised before convictions were entered, the problem could be solved by laying the charges in the alternative. This was, I think, accepted by defence counsel. The point nonetheless serves to underscore the potential tension between the parallel charges under s 66(2) and s 98A in a case such as the present.

Result

[31]   I dismissed the s 98A charges against Mr Damien Kuru and Mr Runga for the reasons I have set out at [1] to [25] above.

Rebecca Ellis J

Solicitors:

Crown Solicitor, Whanganui for Crown

17     The summaries of facts to which Mr Rogerson and Mr Fantham-Baker pleaded guilty would probably suffice to support the Crown’s change in position on this point.