R v Ma'u
[2008] NZCA 117
•5 May 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA441/07
CA717/07
[2008] NZCA 117THE QUEEN
v
SEMISI MA'U
TYSON REDMANHearing:14 April 2008
Court:Hammond, Williams and MacKenzie JJ
Counsel:C B Wilkinson-Smith for Appellant Ma'u
B J Hart and A J Haskett for Appellant Redman
M D Downs for Crown
Judgment:5 May 2008 at 2.15 pm
JUDGMENT OF THE COURT
A The appeals against conviction are dismissed.
BIn relation to Mr Redman the application for an extension of time for appealing against the sentence is dismissed.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] On 17 September 2005 a 21st birthday party was held for a Ms Norman at an Auckland home. A neighbour, Y, was invited. Y was intoxicated and acting aggressively. Y and another party-goer, Z, had a fight. Y got the worst of it and left the party.
[2] Y later returned to the party with a number of supporters who wrongly believed he had been stabbed during the altercation with Z. In fact that was wrong – Y had cut his arm by accident after leaving the party but his “group” wanted retribution. The situation was defused at that stage and this group of people left.
[3] This group of men then returned in the early hours of the following morning. The group included Winston Uepi, Arthur Aunese, his young brother Edwin Aunese, Mark Fameitau, Tyson Redman, Nathan Lumbers, Semisi Ma’u and his younger brother Jonathan Ma’u, and Maka Feki, along with others. These people were in dead earnest: they mounted an attack on the party-goers involving the use of blunt-force weapons, such as pieces of wood, a golf club, a baseball-bat like instrument, and a table leg. It also involved the throwing of a number of bottles by this group into a garage where the 21st birthday party-goers were trapped.
[4] Z was assaulted by a number of men. He suffered lacerations to his forehead, left ear and bruising on his right face and shoulders. He required medical treatment.
[5] Another attendee, A, was also assaulted very badly, this time by being struck in the face with a golf club. A suffered serious injury; his jaw was fractured in two places and he lost a number of teeth.
[6] Mr Feki was wielding the golf club. He subsequently pleaded guilty to causing grievous bodily harm with intent to do so. That has given rise to a discrete ground of appeal in relation to the two appellants which we will deal with later in this judgment.
[7] The Crown case against Mr Ma’u and Mr Redman rested exclusively upon s 66(2) of the Crimes Act 1961. It was that these two appellants were members of this group, which was intent upon inflicting violence on those present at the Auckland address; and that each of these appellants foresaw as a probable consequence of the prosecution of that purpose the type of offending that in fact occurred. The Crown ran its case this way because it could not identify particular acts of assistance or encouragement in terms of s 66(1) in relation to each count.
[8] Mr Ma’u was convicted of injuring Z with intent to cause him grievous bodily harm, of wounding A with intent to cause him grievous bodily harm, injuring various party-goers with reckless disregard for their safety (through the throwing of bottles), and unlawful assembly in relation to the first visit to the property when violence was threatened but did not in fact occur. Mr Redman was convicted of like offences.
[9] There was originally another appellant (Uepi CA401/07), but he has abandoned his appeal. We say no more about it.
[10] Both Mr Ma’u and Mr Redman appeal against their convictions on a variety of grounds, some of which overlap.
[11] Mr Redman also made a very late application for an extension of time to appeal against his sentence but then “abandoned” it before us. That application is dismissed.
[12] It is worth noting at the outset that incidents of the kind which occurred in this instance are an unhappy feature of present-day life in New Zealand. The trials which arise out of them are becoming lengthier and more complex. For instance, the taking of evidence in this trial began on 24 July and the Judge was not able to sum up until 16 August. The Judge had to give many rulings in the course of the trial.
[13] This sort of trial comes about because in a swirling group situation, extending over some hours, often serious violence erupts, and there are then endless arguments and recriminations as to who did what to whom; and in a “party” situation most of those who are charged claim in one way or another that they did not really know what was going on, or did not have in contemplation what actually came about. Defendants not uncommonly change their position as the case goes along.
[14] These are difficult cases for trial Judges. But at the same time the position of the individuals who are charged must be fully safeguarded. These kinds of cases can lead to miscarriages of justice.
[15] We find it convenient to address the various criticisms in this appeal – which are all in their own way addressed to the Judge’s handling of the case and/or his directions – following somewhat the chronology of the trial. In the end, only one appeal point appears to us to have had anything of substance in it, and it too fails.
Guilty pleas in the presence of the jury
[16] At the outset of this lengthy trial, presided over by Judge Field, three accused pleaded guilty before the jury to the charges they faced. Counsel’s submission appears to be that, having heard some accused acknowledge their guilt as parties to this offending, the jury might have been led to a conclusion that the others were also guilty, or at least may have been unduly influenced thereby.
[17] What happened is recorded by the Judge in his Ruling No. 15 of 10 August 2007. Certain pleas of guilty were taken when the jury was empanelled on 23 July; and on the second morning further pleas of guilty were taken from some accused.
[18] At that time the Judge gave a perfectly usual direction to the jury:
Mr Foreman, ladies and gentlemen, I should simply point out that the fact that two of the accused have pleaded guilty is completely irrelevant to the remaining charges against the remaining accused. It is nothing to do with them and that point may be made again later in the trial.
[19] It is plain enough that this was the sort of trial where there was a certain amount of “to-ing and fro-ing” going on, even when the trial started, as to who was going to plead and who was not, and if so on what basis.
[20] The Judge correctly appreciated that he had a discretion to be exercised judicially and on the basis of a sound judgment as to whether this jury should be discharged and another jury empanelled by reason of the taking of those pleas. As is recorded in Ruling No 15 there was no unanimity between the various defence counsel on this issue and the Judge was well appraised of his duty to avoid inappropriate or prejudicial effects. He took the view that it was sufficient if he gave a clear direction at the time, and he did so again in his summing up, where he said: “What a particular accused chooses to do in the course of a trial is entirely up to him and has no impact or bearing on the guilt or innocence of any other accused in the trial. I do not know if I could put that any more plainly.” Quite so.
[21] This kind of problem was discussed by this Court in R v Nandan [2002] 2 NZLR 783 where, as it happens, I had occasion to say for the Court:
… in cases where there are multiple accused, it is not at all uncommon for one (or more) accused to plead guilty at the start of the trial, and for the trial to then proceed against the remaining accused. The general practice is then to tell the jury (if they have not heard it on the arraignment) which persons have pleaded guilty, and that those persons will be dealt with by due course of law. There may conceivably be circumstances in which, as part of the general obligation of a Judge to ensure a fair trial, a trial Judge should, for some particular reason and if it is possible to do so, endeavour to see that the position of the other accused is kept from the jury. [But there was no basis in Nandan for such a suggestion.]
[22] We see this case in exactly the same light. No distinct case of prejudice has been alleged. The argument is, with the greatest of respect, a makeweight one of a vague suggestion that there must have been some prospect of guilt by association. There is nothing in the point.
The wrongful identification of the principal in respect of the golf club assault
[23] One of Mr Wilkinson-Smith’s concerns, as counsel for Mr Ma'u, which we will come back to again in connection with the direction on parties, is that it is a well-established rule that party liability is derivative liability. That is, there cannot be liability of somebody as a party, unless somebody has committed the principal offence. The complaint of counsel seems here to be, “Well, that has not been proved in this particular case”.
[24] That issue has to be put very distinctly in context. The Crown opened its case on the footing that Mr Feki was the wielder of the golf club on the evening in question. There was absolutely no issue about this. He pleaded guilty to being that very person. The Crown offered to call evidence to this effect, if it were considered necessary – though that would probably not have been necessary, see the observations in Nandan (above) as to how convictions may be proved.
[25] For reasons that are not at all obvious to us, Mr Ma’u’s counsel objected to this course. As far as we can appreciate it, this seems to have been because Mr Wilkinson-Smith wanted to be able to submit that the Crown had to prove that Mr Ma’u knew that the specific principal offender intended what happened.
[26] If that was the purpose of the argument then it was an error. The proposition that Mr Ma’u had to foresee that a particular individual in the group might carry out such an attack is not correct. What he had to be shown to have foreseen is that a member of the enterprise might well commit an offence involving the infliction of serious injury in carrying out the unlawful common enterprise.
[27] The Crown ran its case – and entirely understandably so – on the basis that the principal in relation to the golf club attack had “confessed”. He pleaded guilty. There is simply no issue but that the requirement that a member of the unlawful enterprise had committed the offence was proved. The Crown and the Judge could hardly be blamed – indeed it was their very function – for concentrating upon those things which had not been proved. There is nothing in this point, and certainly no miscarriage of justice.
Mr Ma’u’s interview with the police
[28] For Mr Ma’u, Mr Wilkinson-Smith contended that he was insufficiently advised of his jeopardy when faced with police questions. The Judge declined to rule the particular statement inadmissible. The relevant trial ruling is No. 10.
[29] This was not a Bill of Rights objection. Mr Ma’u was not under arrest at the time of questioning, nor was he then detained under an enactment. He was specifically told he was not being arrested, simply that the police “would like” to speak to him at the police station. He went voluntarily. The trial Judge was “satisfied … that the accused did adequately understand the jeopardy in which [he] stood”.
[30] This was hardly a surprising conclusion. Mr Ma’u had read at least parts of a search warrant; he knew of the incident the police wished to talk to him about; he showed some real comprehension of the events which were said to have occurred; he carried weapons to the property; he knew that at least one weapon had been used there; and he recalled bottles had been thrown.
[31] With all due respect, to suggest in that context that Mr Ma’u did not understand the jeopardy in which he stood is misconceived. The Judge considered – and there was an ample basis for him to reach that view – that he was sufficiently appraised. It has not been shown that the Judge was wrong.
Directions material to the Notice of Alibi
[32] Mr Redman served a Notice of Alibi well before the trial, in accordance with s 367A of the Crimes Act 1961. The essential purpose of an alibi notice is to enable the prosecution to “check out” the notice and test the veracity of the alibi. If alibi evidence is not adduced, the prosecution may then adduce the alibi notice itself, in order to discredit any differing defence proposition.
[33] Mr Hart’s complaint, as counsel for Mr Redman, is that the Crown suggested that Mr Redman’s alibi was a recent fabrication and that the police did not have notice of the alibi at least until the last minute. He said no direction was made to remedy the prejudice caused by “these incorrect suggestions”.
[34] The proposition that the alibi was a recent fabrication was put to but refuted by Mrs Redman. When she was asked in court why she did not go to the police and say “hey, my son was home with me” she said she was expecting a call from the police but had not had one.
[35] The Judge gave a quite adequate general alibi direction:
Mr Redman of course has called evidence of alibi. Evidence of alibi simply is an assertion that he was not there at the time that the particular events occurred. Once the issue of alibi is raised it is not for the defence to prove an alibi but rather for the Crown to rebut it. Remember that burden of proof? Burden of proof is on the Crown. Once it is established as an issue the Crown must disprove alibi. In other words, make you sure that he was there at the time that the offence occurred.
[36] Mr Hart’s complaint is that the trial Judge should have gone further and given the jury a direction, presumably along the lines that the police could have checked out the alibi (but had not), and that what had happened in the course of the trial was prejudicial.
[37] Mr Hart can fairly claim that Crown counsel should not have put the matter the way that it was put; it is for the police to check out an alibi. However, there was here no miscarriage of justice – Mrs Redman put her account to the jury and it was for the jury to assess whether the evidence was accepted. Plainly it did not accept the alibi.
Reliability of evidence
[38] Mr Hart complained that only two witnesses gave evidence placing Mr Redman at the scene of the crimes at the material time: Ms Trethowen and Ms Norman. His submission was that their evidence was inherently unreliable due to intoxication and/or a motive for anger and retribution and the jury should have been so directed.
[39] Ms Trethowen had consumed ten bottles of beer and a distinct quantity of cannabis. She was only 15 years old. Ms Norman had also consumed alcohol and cannabis, though apparently less than Ms Trethowen.
[40] Judge Field drew attention to this problem in his summing up. In speaking to the defence submission that the witnesses were not reliable, he commented:
Well again does that really stack up with the evidence the Crown produced? Look at some of the Crown witnesses, they are not that reliable. They are, at the very least, extremely drunk under the influence of alcohol and drugs. And some of them have convictions for dishonesty so they are somewhat of a motley crew members of the jury.
[41] We do not consider anything further was required on intoxication. The jury were rightly reminded that they should have regard to the character and characteristics of the people concerned on the night in question, and the judicial comment was, if anything, adverse to the Crown witnesses.
[42] A second concern is that it is said that it was Ms Norman’s birthday party which was disrupted that night; that there was every reason for her to be angry about what occurred; and to want retribution. Mr Hart said she had a strong basis “to hate the wider group of young men, regardless of any involvement, and to push for a conviction of those charged.”
[43] This proposition was put to the witness by defence counsel:
Q.Well you see Ms Norman Mr Aunese told the police that he did not throw a bottle, he said he didn’t do anything like that and I’m suggesting to you that you want to put a bottle in his hand because you want as many of your neighbours to be in trouble as possible don’t you?
A.No.
Q.For ruining your birthday party don’t you?
A.No.
Q.Well he said he didn’t throw a bottle, I suggest to you that he’s telling the truth and that you’re lying?
A.No I’m not lying.
Q.You’re not telling this jury are you that you’re an honest witness, you’re not suggesting that are you?
A.I am honest.
[44] We do not consider this passage required a special direction. Counsel put a proposition to the witness and it was rejected. There was no other evidence to support the proposition being suggested to the jury. This was just one of many factors for the jury to weigh in making up their mind whether they accepted Ms Norman’s credibility.
Identification evidence
[45] Mr Hart complained about Judge Field’s directions on identification evidence in his summing up.
[46] The Judge said:
One of the directions and indeed warnings I have to give you concerns identification evidence. This is a case where the Crown relies upon the accuracy of one or more identifications of the accused by one or more witnesses and the defence contends that they are mistaken. Now where that is so the law requires me to warn you of the special need for care before relying on identification evidence as the basis for a conviction. The reason for that is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. An honest witness who is convinced of the accuracy of what he or she says may well come across as a convincing witness, but may still be mistaken. If one such witness can be mistaken so can a number of them.
[47] The Judge then went on to give an example of what he was talking about, in relation to the evidence of Ashley Poupouare. She had identified Arthur Aunese as one of the people involved at the particular time. The Judge pointed out that “one of the very rare cases of unanimity in this trial between Crown and defence is that she was wrong in that identification”. He then went on to give some specific things that the jury should look out for and gave appropriate warnings with respect to dock identifications (some of which had occurred in this trial).
[48] Mr Hart’s specific complaint is that the Judge “did not [explicitly] warn the jury that mistaken identity can cause a serious miscarriage of justice” which terminology is contained in s 126(2)(a) of the Evidence Act 2006. (Emphasis added.)
[49] This trial commenced on 23 July 2007, so the Evidence Act 2006 did not apply to it. On this point, s 344D of the Crimes Act 1961 applied. That section required that the identification warning “include the reasons for the warning”, but that it need not be in any particular words. The issue is whether the Judge has adequately conveyed the seriousness of the exercise being undertaken by the jury and the need for real caution. We consider he did so. Apart from all the usual warnings, the Judge was able to point to an actual example in the trial where an apparently convincing witness had been, as all agreed, wrong. So there was a live example presented to the jury. We do not consider there has been a miscarriage of justice in this respect.
Co-accused’s statements should have been excised or specifically directed on
[50] Mr Hart’s concern under this head is that the Crown relied on the evidence of Ms Trethowen and Ms Norman in placing Mr Redman at the scene at the material time, but some comments from out of court statements were loosely handled.
[51] The context of this complaint is that a co-accused, Mr Fameitau, in a video interview, as Mr Hart put it, “… included a number of statements against [Mr Redman]”. For example, that Tyson was “all fired up”. And further, that he went back to the scene of the party – which would put him at the scene of the crime.
[52] There is no argument that statements by a co-accused are inadmissible as against the appellants.
[53] The Judge said in summing up:
Another major issue or a feature of considerable importance in this trial is the use that you may make of the statement of an accused as it refers to the actions of another and the short answer is you cannot. Now, I have commented on this I know, more than once in the course of the trial and I think at least one of those comments has been transcribed in the evidence, which you will have in front of you. But it is vitally important to remember that what one accused may say about the actions of another for good or bad, is not evidence against that other person. What one accused person says in his statement is only evidence for or against him, no-one else.
[54] The terms of the warning he gave the jury were perfectly adequate.
Parts of the appellant’s statement should have been excised or specifically directed on
[55] Mr Hart further complained that prejudicial evidence contained in Mr Redman’s statement was also inappropriately admitted.
[56] This concern was dealt with in the Judge’s Trial Ruling No. 7. Somebody called Liku was also said to have put Mr Redman at the main assault, and a question to that effect (and the answer) found its way into Mr Redman’s statement.
[57] The Judge said, “I would have been prepared to exclude that but the defence is content that that remain. If the Crown chooses to lead that then they can do so without further opposition.”
[58] Mr Hart complains that that should have been excised “despite counsel’s position”. Nobody made anything of this at the trial. That is hardly surprising. It was rather like an aside which had found its way into Mr Redman’s statement. It would have been better out of the statement rather than left in, but it is difficult to see how it could have contributed to a miscarriage of justice when nothing further was made of it in the course of the trial.
[59] A similar concern was raised with respect to Krystal Trethowen. In the appellant’s statement the following appears:
Q. Krystal has also put you at the main assault and throwing bottles?
A. Yeah I saw her and was talking to her. Ask my mates.
[60] In Trial Ruling No. 7 the Judge ruled the statement admissible, on the basis that the question was not equivocal. Mr Hart’s complaint is that what was said was prejudicial.
[61] Later, in court, Ms Trethowen said that the person she had identified as Mr Redman was not nearby. If anything, this contradictory evidence by Ms Trethowen was more in favour of the appellant’s case, than against it.
[62] Again, this was clearly a jury issue. It is extremely difficult to see how a miscarriage of justice could be said to have arisen on account of this particular point.
The party directions
[63] Both Mr Wilkinson-Smith and Mr Hart complained about the Judge’s handling of the directions to the jury on s 66(2) liability.
[64] Mr Wilkinson-Smith said that the jury direction by the trial Judge was “insufficient … [insofar as] the direction allowed for convictions where the secondary party foresaw less serious offending than the count alleged.”
[65] Mr Hart put his concerns under three heads:
(a)The Crown statements and Judge Field’s directions suggested that the mens rea required a lesser standard of harm than the really serious harm required.
(b)Judge Field’s direction omitted that the knowledge required to be proved includes knowing that the principal offender intended really serious harm.
(c)Following a jury question on party liability, clarifying directions were not complete.
[66] Section 66(2) of the Crimes Act 1961 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.
[67] The Crown here relied exclusively upon this provision and did not invoke s 66(1).
[68] Some general observations should be made. Liability arises under s 66(2) by virtue of membership in an unlawful common enterprise rather than direct participation in the offence at issue where there was subjective foresight of probable consequences. The fact that a principal party cannot be identified is irrelevant, so long as it can be shown that the offender was a member of the common enterprise: R v Waho CA314/04 27 April 2005.
[69] It therefore becomes particularly important to identify the unlawful purpose to which the common intention attaches. Criminal liability arises only in relation to such offences as were committed in the prosecution of the common purpose where the circumstances are such that the offence was considered to be a probable consequence of the common purpose. An inference of foresight will quite readily be drawn; voluntary participation in a criminal enterprise ordinarily permits just such an inference.
[70] In this case the Crown said the unlawful common purpose was a group assault upon the party-goers at the Auckland address because of the perceived earlier mishandling of one of its members. The evidence was that a number of this group were armed with weapons. It is difficult to see how the jury could not have drawn the inference that the appellants – if they were members of this group – apprehended the infliction of injury, wounds and even serious bodily harm to those present at the address. The Crown understandably took the line at trial: why else did the appellants return there?
[71] In closing, Crown counsel suggested to the jury that it could convict on all charges in accordance with the following questions:
[7]… did the accused form a common intention or an agreement with one or more of his associates to go to [the Auckland address] and assault one or more party-goers? …
[8]Secondly, at the time of joining a group and forming that common intention, did the accused know that at least injury would well happen. That is, was there a real risk that an injury could occur?
[72] After the Crown closing, defence counsel raised the question of the appropriate directions with Judge Field. The Judge ruled that the jury should be directed in the following way, in a ruling of 15 August 2007:
[2]The Crown urges me to adopt the formula approved by the Court of Appeal in Fa’apusa and I intend to direct the jury in this way (as they have been since the commencement of these proceedings):
“Firstly, whether the accused formed a common intention or agreement to go with one or more of his associates to [the Auckland address] and assault one or more of the party-goers. Secondly, whether the accused knew that at least serious injury could well occur, or there was a real and substantial risk in the course of carrying out the assault”.
[3]Mr Wilkinson-Smith, on behalf of Mr Semisi Ma’u, urges me to adopt the further definition referred to by Winkelmann J as Her Honour saw fit in the context of that particular case.
…
[5]Her Honour was dealing with a particular fact situation in R v Naea (to which I have been referred) but in the circumstances of this case I do not think it necessary to go beyond the direction suggested initially by the Crown, and I may say only in recent times has it been the subject of query. However, be that as it may – and regardless of that – that is the direction I intend to give.
[73] When he came to sum up on this matter, the Judge recited s 66(2). He then said:
Madam Registrar, could you give me a copy of that please; Counsel may have a copy and if you could hand out the remaining to the jury please. I think it is one between two.
Section 66 as it applies to this set of facts, involves the prosecution satisfying you that a particular accused formed a common intention or agreement with one or more of his associates to go to [the Auckland address] and assault one or more of the party-goers. That is the first thing, whether there was the common intention formed. Secondly, whether the accused knew that at least serious bodily harm could occur, or that there was a real and substantial risk in the course of carrying out the assault of at least serious bodily harm. Now those relate to Counts 1 and 2.
In relation to the remaining Counts 3 to 9 of course, the first part still applies, about common intention, but the accused must have known that there was a real and substantial risk of injury arising from the throwing of the bottles. So it is obviously a lesser threshold in respect of Counts 3 to 9. There must be an appreciation in respect of Counts 1 and 2 of really serious or of serious bodily harm and of bodily injury in respect of the remaining Counts 3 to 9.
Well this really is a matter of inference largely, as far as the Crown is concerned. How for example, can you infer from the evidence that there was a common intention on behalf of the people to do this? Well, in relation to that the Crown invites you to have regard to the surrounding circumstances. You can draw the inference of a common intention from a number of factors. The knowledge that [W] had been – as they thought – stabbed, and a group fuelled by alcohol and anxious for retribution on [T], going back twice. The assault that took part, all of which is evidence, says the Crown, of a common intention. A joint enterprise, a team effort, as the Crown would say.
That is the kind of evidence the Crown invites you to consider when looking at the common intention. You are also invited to draw the inference that they knew that serious, really serious harm would ensue from the attack, because says the Crown, a number of the people were carrying weapons. At least one having a golf club, which ultimately was used of course, a bat, wooden palings apparently. The Crown’s position on this is if you go to a fight carrying weapons like that, there is a reasonable expectation that they will be used and if they are used that someone will suffer really serious harm. So that is the inference that the Crown asks you to draw concerning that. Again similar applies in relation to the bottle-throwing incident.
...
You are not liable if one of the members of the team – if I can put it that way – steps far beyond what you might reasonably foresee as a probable consequence. That is a matter that has been touched upon by more than one counsel in the course of their address. Was this use of the golf club for example, something that could not reasonably have been contemplated or foreseen by the people involved. The Crown says it was. The defence does not accept that at all. Because if someone goes well outside the common intention or the common purpose in that way, then it would be fair to hold the others responsible for that and this is something that has been focused on by more than one counsel.
[74] What was handed to the jury was a hand out, directing that the relevant questions are:
(1)Whether the particular accused formed a common intention or agreement with one or more of his associates to go to [the Auckland address] and assault one or more party-goers.
(2)Whether the accused knew that at least serious bodily harm could well occur (or there was a real and substantial risk in the course of carrying out the assault). (Emphasis added.)
[75] After the Judge completed his summing up, and before the jury retired, the foreman asked if the jury could raise a couple of questions. One was an evidential matter which has no relevance to this appeal. The foreman then said:
If we have questions regarding a point of law, you quite well explain parties and what inference we can draw from evidence, but I am sure items like that might need more clarity.
The Judge replied:
That may well be. It would be helpful to crystallise your thinking and just write it down. It writing it down very often it crystallises the issue and sometimes it answers itself. But please, if you have queries on the law just write it down and I will confer with counsel and I will answer the question.
[76] Immediately after the jury had retired, Mr Wilkinson-Smith took his concerns up with the Judge. The following appears in the record:
DEFENCE COUNSEL: Sir, the concern that the Foreman raised that he thinks he needs more clarification about the parties. Well sir, he may think that, but my submission would be the third element of what Justice Winkleman [sic] gave to the jury is very much a live issue here. In my submission, even a summary of my case, Your Honour has not fully addressed it and the problems that are not asked (inaudible 11:58:17) element. I started off my closing that the evidence cannot tell them who back struck Mr Thompson in the mouth. It will be an issue for them Sir, to find that whoever that person was, was part of the group. At that point of common intention I said to them, well JDK group appears to only be a group of five or six. How do they know that was one of those five or six rather than one of the thirty that was there? You can see in s 66(2), that the wording of it is clear that the person who does the act has to be one of the people that is in the common intention group. So it may have been Sir, than when Your Honour was looking at those elements, you have not heard my closing and I have not made it clear that was something that I said was an issue (inaudible 11:59:15).
THE COURT: Alright, before I invite the Crown to respond is there anything further?
DEFENCE COUNSEL: No Sir.
THE COURT: Yes, Mrs Bell, what do you say about that?
CROWN COUNSEL: I thought that was all covered yesterday. Your Honour gave a direction as to the elements that you were going to hand to the jury prior to Mr Wilkinson-Smith closing Sir. I am of the view that has been covered. They are the only two elements that the Crown must prove. To call them back now Sir and to add another element or whatever Mr Wilkinson-Smith is asking would just add confusion Sir.
THE COURT: I have recorded Mr Wilkinson-Smith’s concern and that will be part of the record in any event. But I do not think it appropriate to call them back. I am sure that they have a clear view of just what the issues in this trial are and it would have to start presumably on the basis that Mr Thompson was one of the group. I see the difficulty as being more hypothetical than actual and I will not address it further unless there is a specific question from the jury concerning that.
DEFENCE COUNSEL: Thank you Sir. Sir is that recorded just as a bench note or how is that?
[77] The jury had retired to consider its verdicts at 11:56:20. Just after 2 pm the jury asked inter alia a question regarding party liability:
[2] … if you join the parties and it can reasonably be expected that the offence will occur, then you are just as liable for the offence whether you do anything or not?
[78] Twenty minutes or so later, the Judge sent that question back to the jury for clarification. He did so in these terms:
In relation to your second question. If you join the parties and it can reasonably be expected that the offence will occur, then you are just as liable for the offence whether you do anything or not? There have been as many answers suggested as there are counsel and I think what we are really going to be asking you to do if you think you can is to reformulate the question.
[79] At the hearing before us counsel seemed to be of the view that that question had not been answered. It has to be recalled in this respect that neither Mr Hart nor Mr Downs were counsel at the trial. Mr Wilkinson-Smith seemed uncertain as to what had happened. We therefore called for the log of proceedings which is electronically recorded in District Court trials today. The Registrar was able to procure this for us. The log records that after the jury retired “to rethink question” (at 14:28:20) it then indicated (at 14:50) “jury don’t need to ask question now!”. It seems from the electronic log that when that response was received from the jury, the Judge saw counsel “In Chambers”. The electronic log records: “Discussions re: jury not wanting answer now”.
[80] As we said to counsel in the course of the hearing, if the question had not been answered then we think there would have been a material irregularity. The jury would plainly have been looking for further directions on the law, which were not provided, and in an area which went to the heart of the trial. However, that is not what happened: the question was withdrawn and the jury did not seek an answer to its own question. Some Judges may have elected to “redirect”. The Judge was not however required to do this, and as every trial Judge knows, directions on top of directions – particularly where the same wording is not used – can be a fruitful source of difficulty in a trial.
[81] This matter has given us some concern. Counsel did not quite put it this way, but in fairness to the accused, we have asked ourselves whether what happened is that the jury just somehow gave up, or switched off, when the Judge asked them to refine their question, and perhaps proceeded on an erroneous basis. The short answer is we cannot know why the jury withdrew its question, nor can we enquire. We can only proceed on the basis of what the Judge had previously said to the jury, and what if anything is revealed by the question, as asked, although subsequently withdrawn. That is, "what (if anything) on the face of the question does it reveal as to what the jury was then thinking?"
[82] We first comment on the context of what the Judge had said to the jury.
[83] The difficulties in this case over directions on this issue seem to have been caused by defence counsel trying to reduce the harm that had to be foreseen to something very specific, and by specific persons.
[84] The Crown had contended for “at least injury”; the Judge put it somewhat higher, in generic terms, as “serious injury”. We think the Judge’s summing up, in the portions to which we have referred, did adequately convey the correct position. It has to be recalled that the Judge had been faced by a persistent suggestion, by Mr Wilkinson-Smith, who had put to the jury that what was required is “the highest possible harm you can do to another person short of killing them”. That is a highly formalistic argument. It is difficult to explain to a jury as to where grievous bodily harm fits in the scale of the Crimes Act 1961. It was sufficient if the jury was instructed that serious bodily harm was known to be something that could well happen whilst they were carrying out the agreement. Over-refinement in these sorts of directions is confusing. In this instance, although things could have been more simply and directly put to the jury, we think the jury can have been in no doubt as to what was required.
[85] There is another facet of this concern. In summarising the appellant Ma’u’s case, the Judge actually put Mr Ma’u’s case on this issue:
In relation to Semisi Ma’u the Crown says that yes, this accused was part of what was going on. He implicates himself significantly in the interview that he has with the Police and it is there for you to consider. At the start he was not exactly forthcoming, but then says he knows exactly what happens. He was at least a party to the assault on Mr [T] and it is a matter for you as to whether in fact he was one of those who was actively involved in kicking or striking him. In terms of his video, even if another group of Samoan boys, I think the expression was, joined in, well of course they can also form a common purpose with the group with which Mr Semisi Ma’u was associated, according to the Crown. But it will be a matter for you and I think it is referred to in tape three, just what part if any, these Samoans played.
The interview of Constable Heffernan is described as being a fair interview. One in which the accused was able to state in his own words what happened. What in fact is recorded there was volunteered by Mr Ma’u and far from being pressured, in fact he volunteered information to the officer when he went out for a smoke and that was later recorded in the interview. Yes he may well have memory problems, says Mrs Bell, but he does get there in the end as his mother says. The head injuries are perhaps of interest says the Crown, but do not really take matters much further in terms of your assessment of him. He cannot say that he did not know injuries would occur. He knew that weapons were taken. He knew that injuries and serious injuries were likely and carried on regardless.
Mr Wilkinson-Smith for Mr Semisi Ma’u disputed this and as with [L], asks you to look at the timing of these events, because of course you need to know or have some idea of just when these events happened. It must be established by the Crown that the person who struck the blow intended really serious harm. But the Crown must negative the proposition that this was a senseless, random act of violence that went far beyond what could have been expected by the others involved and counsel returned to that from time to time in the course of his address to you.
It is a big jump says Mr Wilkinson-Smith, going along for a bit of a rumble, one on one if you like, if that is what you think is happening, to the kind of violence which in fact took place. It is very serious violence that is being inflicted here and alleged by the Crown that the accused knew was a reasonable possibility. Indeed even the wielder of the club, according to [T] who was struck, looked surprised. I think the suggestion is that if it was a surprise to him it would even be more of a surprise to everybody else.
The Crown, says Mr Wilkinson-Smith, has over promised and under delivered in terms of the street gang. This is hardly a kind of gang to inspire terror. The gang pad is his mum’s home apparently and that there are a limited number of members on the evidence that you have. The Crown witnesses in any event, as counsel put it, somewhat of a motley crew. The defence witnesses are in contract, reliable people. You are invited to treat the interview with some caution. The interviewing officer is said to have told Semisi Ma’u things that he the officer knew were wrong. In other words, people saying that he had a club. Counsel says that he was drip feeding some information to Mr Ma’u and was deliberately withholding other information. That is of course a matter for you to consider.
The evidence against Mr Semisi Ma’u says counsel is mostly based on his confession. Such evidence as there is, independently of that, would tend to point to his innocence, looking at Valen and Mary Norman. The confession must be taken into account in the context of his relevant youth, his memory difficulties, the fact that he was a young man in a foreign environment, never having been in trouble with the Police before, and over the course of a long interview. This was not a fair interview to the extent that it resulted in admissions of involvement. It was a long interview and went on for some hours. You are invited to take into account Mrs Ma’u’s evidence concerning his head injury.
[86] The short point here is that the very concern sought to be advanced on Mr Ma’u’s behalf was squarely put, and plainly rejected by the jury.
[87] It is apparent from what occurred in this case that defence counsel somewhat over-refined matters with what they saw to be distinctions of a somewhat elusive character between serious harm and really serious harm or injury and serious bodily harm. There is something unrealistic about those sort of submissions in a context in which there was a return to the scene of a group of persons carrying weapons who were patently concerned to inflict a serious level of violence. The greater problem was whether these particular defendants (and appellants) were members of that group. That was distinctly traversed at trial; there was evidence on which the jury could have come to the view that it did; and it has not been shown that these were perverse or wrong verdicts in that respect.
[88] Finally under this head, it is true that the Judge dealt only obliquely or by implication with the proposition that the offence had to be committed by one of the group who formed the common intention. Mr Downs rightly conceded that “the trial Judge might have given more explicit directions in this regard”. This whole issue however has to be put in context. First, the principal offender had pleaded guilty. Secondly, the prosecution case was that everyone who returned to the party address in the early hours of the morning – that is the group of which the appellants were a part – intended to inflict violence upon those there. All the prosecution witnesses spoke of the group as one entity. Mr Wilkinson-Smith suggested on appeal that there was at least some evidence that the gang of which Mr Ma’u was (admittedly) a member was only a small one – which was somehow not part of the large group of attackers – but that evidence was before the jury, if it accepted it.
[89] On any view of the matter, the most serious offence was committed by a “principal”. To put this another way, the Judge would have just been stating the obvious if he had been more explicit. There can be no question that this element of criminal liability was indeed present. And the other point was a jury issue.
[90] In the result, this appeal point also fails.
Conclusion
[91] The appeals against conviction are dismissed.
[92] The application for an extension of time for appealing against the sentence in relation to Mr Redman is dismissed.
Solicitors:
Crown Law Office, Wellington
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