R v Maihi CA305/03
[2003] NZCA 381
•10 September 2003
ORDER PROHIBITING PUBLICATION OF NAMES OR PARTICULARS IDENTIFYING APPELLANTS UNTIL AFTER TRIAL
IN THE COURT OF APPEAL OF NEW ZEALAND
CA305/03
THE QUEEN
v
NORTON IAN MAIHI
CA307/03
THE QUEEN
v
HOORI RICHIE SLADE
Hearing: 28 August 2003 Coram: Glazebrook J
Fisher J O'Regan J
Appearances: M A Gardam for Appellant Maihi
L J Postlewaight for Appellant Slade J C Pike and P J Magee for Crown
Judgment: 28 August 2003
Reasons: 10 September 2003
R V NORTON IAN MAIHI CA CA305/03 [28 August 2003]
REASONS FOR JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J
Introduction
[1] Mr Slade, Mr Maihi and a Mr Hamilton are jointly charged with the robbery and murder of Mr Richard Harcombe in the early hours of 7 September 2002 (counts 1 and 2 of the indictment). All three are also charged with the aggravated robbery of (or, in the alternative, assault with intent to cause grievous bodily harm to) Mr Jason Jurisich earlier that night (counts 3 and 4). They applied for orders severing counts 1 and 2 of the indictment from counts 3 and 4. Mr Maihi and Mr Slade also sought to be tried separately from their co-accused. In a ruling of 4 August 2003 these applications were refused.
[2] Both Mr Maihi and Mr Slade sought leave to appeal against the refusal of severance of counts. Mr Maihi also sought leave to appeal against the refusal of his application to be tried separately from his co-accused. On 28 August 2003 this Court granted leave to appeal but dismissed the appeals. We now provide the reasons for that decision.
Background
[3] The first incident (leading to counts 3 and 4 of the indictment) happened between 10 and 11pm on the night of 6 September. The three accused were standing outside a church on one of the main streets heading into Whangarei. A group, including Mr Jursich, walked by. It appears that Mr Hamilton asked Mr Jurisich for a drink. When this was refused Mr Hamilton punched Mr Jurisich in the head, although whether that was because of the refusal or because of the manner of that refusal is not clear. An altercation ensued, with allegedly all three accused joining in. In the course of that altercation Mr Jurisich was struck with some glancing blows from a hammer wielded by one of the accused. The incident ended with Mr Jurisich running down a bank and some discussion between the three accused and
Mr Jurisich’s associates. One of these associates gave Mr Hamilton a drink of beer. Mr Jurisich’s injuries were minor.
[4] The second incident occurred in the early hours of 7 September. The three accused were returning from town along the same road as in the first incident. They had not, however, been together for the whole evening. In the vicinity of Jubilee Park the deceased, Mr Harcombe, passed by and was accosted by Mr Hamilton. A fight ensued involving all three accused and Mr Harcombe was rendered unconscious. Some two hours later at around 6am, Mr Slade and Mr Hamilton returned to the scene with a 13 year old friend, Mr Wilding, who was not otherwise involved. Mr Harcombe was still unconscious. He was found about half an hour later by a passer-by and transferred to hospital. He died four days later.
[5] Mr Harcombe sustained massive head injuries in the assault. The pathology evidence at depositions was that these head injuries led directly to his death and that they were likely to have arisen as a result of kicking rather punching (and that they could have arisen as a result of a single kick).
The Judge’s ruling on severance of counts
[6] In relation to the severance of counts the Judge ruled that, because the two incidents in the case were inextricably related in time and circumstance, severance was inappropriate. She pointed out that they happened on the same night in the same area and that they showed a similar pattern of behaviour, even though the victim of the first incident was not seriously injured. She noted the submission that the evidence of the use of the hammer in the first incident could be seen as prejudicial, particularly as the hammer does not appear to have been used in the second incident. She held, however, that the evidence in relation to the first incident is part of what happened that night and to try and dissect the evidence so that the jury could hear some, but not all, of what happened would not only be practically difficult it would also be artificial.
Counsels’ submissions on severance of counts
[7] With regard to the severance of counts, Mr Gardam was content to rely on the submissions of Ms Postlewaight. Ms Postlewaight submitted that the two incidents were not connected in time, place or circumstance and therefore should not be tried together. First she submitted that, while the two incidents occurred on the same night, the time delay between them was between 5 and 7 hours. In addition, the accused separated and did other things during the intervening hours. Secondly she submitted that Whangarei is a small town and, while the two incidents both happened in Tarewa Rd, this is a main thoroughfare and one leading to outlying suburbs not serviced by buses at night. Thirdly she submitted that the two incidents were not connected in circumstance. The first in her submission was a minor altercation sparked by name-calling rather than with any intention of robbery. The second was obviously a much more serious assault different in kind from the first minor skirmish and clearly involved robbery.
[8] She submitted further that none of the evidence in relation to counts 3 and 4 is admissible in relation to counts 1 and 2 and this points in favour of severance. In her submission there would be clear and obvious prejudice to the accused if there was a joint trial in relation to all counts. It would not be realistic to expect the jury to separate out the two incidents and not use evidence in relation to counts 3 and 4 in determining guilt in respect of counts 1 and 2 and vice versa. She submitted further that the jury could use the evidence in an illegitimate manner to infer bad character and propensity to commit offences. She also submitted that it would not be difficult or onerous to try the two different incidents separately as there is no overlap of witnesses, apart from the three police officers who took video statements from the accused.
[9] There are also in Ms Postlewaight’s submission items of evidence admissible with regard to counts 3 and 4 that are prejudicial and that may be improperly used by the jury. She expressed particular concern in relation to the use of the hammer. She submitted that the jury may be led to think that the hammer had been used in the second attack even though there is no evidence that it was so used. In her
submission, there is particular prejudice to Mr Slade as he would ordinarily give evidence to deny that he used the hammer in the first incident but for a variety of reasons is unlikely to give evidence in relation to counts 1 and 2. He will therefore be denied the opportunity to present his defence in relation to counts 3 and 4.
[10] The Crown submitted that the facts show that the three accused had combined and stayed together on that night looking for opportunities to rob. The events that followed were not only linked in time, but also in purpose, method and the use of serious violence. Even though the first incident did not result in serious harm to the victim, the facts make it plain that such harm was intended and that each of the assailants was prepared to assist in the use of serious violence.
[11] The Crown referred to the case of R v Karetai CA 25/88, 17 August 1998 as applicable authority. The accused in that case was charged with a serious assault and robbery of a patron in the toilets of a bar. The identity of the assailant was in issue in the case. Evidence was led of an earlier assault by the accused (about half an hour before) on another patron of the bar. This was upheld by this Court on the basis that the links between the two incidents were such that the first incident could be seen as part of the res gestae of the second crime.
Discussion
[12] We are satisfied that the two incidents are sufficiently related in time, place and circumstance that they ought to be tried together. They both involve violence and arguably robbery, they took place on the same night, in the same street and with the involvement of the same accused. With regard to the concern about the evidence of the hammer being used in the first incident, it is clear that it was not used in the second incident as it had been abandoned earlier in the evening. It is difficult therefore to see any illegitimate prejudice arising to any of the accused.
[13] For completeness, we note this does not mean that we accept the Crown submission that the first incident can be seen as being part of the res gestae of the second incident. Nor does it mean that we accept that the evidence in relation to counts 3 and 4 can be used in respect of counts 1 and 2 in the manner contended for
by the Crown. When giving judgment we indicated that the probative effect of the evidence as to the first incident in its support for the Crown case as to the second incident would not seem to us to extend beyond setting the general context as to the sequence of events on the night in question and providing a basis for any inferences the jury might draw as to mutual knowledge and understanding of each other’s intentions and actions for the purpose of deciding whether the accused were parties to each other’s actions in the second incident.
The Judge’s ruling on Mr Maihi’s application for a separate trial
[14] In relation to the application for severance by Mr Maihi, the Judge noted that this was not a case where the weight of inadmissible evidence makes it unfair to expect the jury to act only on admissible evidence. Neither was it a case where there are difficulties in isolating the admissible from the inadmissible. Mr Maihi’s application for a separate trial rested rather on the fact that he was not one of the party that returned to the scene at 6am. He submitted that he would be denied the opportunity to explore fully the possibility that the injuries leading to death were inflicted at that point rather than earlier.
[15] The Judge held that, in a case such as this where each of the three accused is endeavouring to point the finger of blame at their co-accused for an event in which they were all involved, it is particularly important that the jury has the opportunity of considering the case against each of them together in order to ascertain fairly the true level of each one’s involvement in the homicide and the events leading up to it. While Mr Maihi would in all probability be denied the opportunity to explore the issue of causation directly with his co-offenders, she was satisfied that he would have sufficient opportunity to present this defence at trial, through questioning of the pathologist and Mr Wilding.
Counsels’ submissions on application for a separate trial
[16] Mr Gardam submitted that, in order for Mr Maihi to have the opportunity of presenting a full defence, it is essential that he be able to cross-examine his co- accused and it appears that they will not give evidence at trial. Mr Maihi has
instructed his counsel that Mr Slade has said that he saw Mr Hamilton kick the unconscious victim in the head when they returned to the scene. Mr Slade makes no mention of this in his video interview. Mr Hamilton accepted in his video statement that he had given Mr Harcombe a little kick in the stomach when he and Mr Slade returned to the scene with Mr Wilding at around 6am. Mr Wilding at depositions said that Mr Hamilton kicked Mr Harcombe and said “Fuck you” but that he was not sure where Mr Harcombe was kicked. Mr Gardam indicated, however, that a further statement has been obtained from Mr Wilding where he says that the kick was not to the head.
[17] Mr Gardam submitted that there is a possibility that the fatal kick was administered at the time of the return to the scene and not at the time of the assault while Mr Maihi was present. In his submission, it is essential that Mr Hamilton and Mr Slade are available to give truthful evidence about the second assault without fear of prejudicing their own positions. The only way this can be achieved is by calling them to give evidence after their trial is over and any sentencing is completed.
[18] The Crown submitted that there was no evidence of any kick to the head administered when the other two accused returned to the scene. Further, in the Crown’s submission it is clear that the fatal injuries had been sustained in the first attack as Mr Harcombe had been rendered unconscious after that attack and had remained so for some two hours. This could not be explained by the relatively low level of alcohol found in Mr Harcombe’s blood. As to the wish to cross-examine the other accused the Crown submitted that, in the absence of very special reasons, possible trial strategies cannot be a proper basis for severance of accused.
Discussion
[19] The accused are jointly charged in relation to an attack in which they are all said to have joined. We agree with the Judge that it is particularly important in a case of this kind that the jury has the opportunity of considering the case against each of the accused in one trial in order to ascertain fairly the true level of each one’s involvement in the homicide and the events leading up to it.
[20] It would need exceptional circumstances for a separate trial to be ordered and we agree with the Judge that this is not such a case, especially as it appears likely that the fatal injuries were inflicted when Mr Maihi was present. Mr Maihi will, however, not be prevented from presenting his defence that the fatal kick was administered by Mr Hamilton when he returned to the scene.
Solicitors:
L J Postlewaight, Whangarei for Appellant Slade Crown Law Office, Wellington
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