R v Kuru

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.