R v Moananui
[2021] NZHC 1442
•17 June 2021
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2019-054-003419
[2021] NZHC 1442
THE QUEEN v
QUENTIN JOSEPH MOANANUI JEREMIAH SUA
MARIOTA SUA JASON DAVID SIGNAL
DEAN ARTHUR ALEXANDER JENNINGS
Hearing: 9 February – 7 May 2021 Counsel:
D R Davies and J J Harvey for the Crown
Q Moananui self-represented and P H Surridge as amicus curiae C J Tennet and M Jaquiery for Mr J Sua
L P F Lafferty and S Jefferson for Mr M Sua
C B Hirschfeld and T A Thompson for Mr Signal R M Lithgow QC and A Jeremich for Mr Jennings
Judgment:
17 June 2021
JUDGMENT OF CULL J
[Reasons for Oral Ruling no 21 on the s 147 applications]
[1] Four s 147 applications and submissions were filed by Quentin Moananui, Jeremiah Su’a, Jason Signal and Dean Jennings at the conclusion of the Crown case, on the basis that no properly directed jury could reasonably convict the defendants of some or all of the charges brought against them.1
1 Criminal Procedure Act 2011, s 147(3).
R v Sua [2021] NZHC 1442 [17 June 2021]
[2] The Crown opposed the s 147 applications on the grounds that there was sufficient evidence before the Court, which if accepted, could prove the Crown case and the charges brought against each of the four defendants.
[3] Following the hearing, I issued an Oral Ruling, deciding the applications.2 I declined the four s 147 applications, because I was satisfied that a properly directed jury could reasonably convict the defendants on the evidence adduced by the Crown. I now give my reasons.
[4] Each of the four defendants raised evidential matters in respect of their involvement and the charges brought against them. I deal first with each of the defendants’ submissions, followed by my conclusions.
Quentin Moananui
[5] Quentin Moananui filed a s 147 application solely in respect of the charge of murder brought against him.
[6] Mr Moananui submitted that there was no legally admissible evidence against him, upon which a properly directed jury could convict.
[7]He submitted that:
(a)there is no evidence of his meeting up at the Mobil Petrol Station or any other location with the other defendants prior to arriving at 107 Mulgrave Street;
(b)there is no evidence of how he got to the address of 107 Mulgrave Street;
(c)there is no evidence of any text messages or communications with Mr Moananui to meet the others at the relevant time on 12 September 2019;
2 R v Sua CRI-2019-054-3419, 16 April 2021.
(d)there were valid reasons for Mr Moananui to meet up with Kyle Rowe, because Mr Moananui’s wheel had come off his Falcon, which Mr Rowe had worked on;
(e)there is no evidence of Mr Moananui being seen with any weapon, either at 107 Mulgrave Street or anywhere else;
(f)there is no admission or statement, inculpatory or exculpatory, by Mr Moananui;
(g)the principal witness is Krystal Hewitt and she did not see Mr Moananui assault anyone, but saw him leave her address in a white people mover type vehicle, which the police never located;
(h)there was no proof that Mr Moananui had a machete or any evidence of weapons or his permanent address;
(i)there is no proof that Mr Moananui was at Bunnythorpe;
(j)further, there is no proof that Mr Moananui drove the white Falcon LSK, which Mr Ferguson later took apart and worked on by painting it; and
(k)the pathologist conceded that Codi Wilkinson’s wounds could have been caused by a single person and, importantly, could not rule out his death from a methamphetamine overdose. Mr Moananui also references the evidence of the emergency doctor as to the effects of methamphetamine on a meth user.
[8] Mr Surridge, as Counsel assisting Mr Moananui, submitted that the evidence was speculative against Mr Moananui and there was a risk of his being convicted of murder, where there is illegitimate but prejudicial material that was produced in texts and co-defendants’ statements. Mr Surridge acknowledged this would be the subject of firm direction which would not be misunderstood or ignored by the jury.
[9] The Crown resisted Mr Moananui’s application, pointing to the aspects of the evidence, which if the jury accepted the evidence, would be sufficient to convict Mr Moananui of murder. These included:
(a)The evidence from Maya Ruru, that Mr Moananui was trying to find Kyle Rowe on 12 September 2019, prior to the others being seen together at Mobil station.
(b)Although Mr Moananui was not at the Mobil station, an inference can be drawn that he was picked up in Shamrock Street. Mr Moananui was then seen at Krystal Hewitt’s place in Ashhurst where the violent events unfolded.
(c)Krystal Hewitt gave evidence that Mr Moananui went to the door at 107 Mulgrave Street on the night of 12 September asking for Codi Wilkinson and Kyle Rowe to talk to him outside.
(d)There is an inference that weapons were brought to Krystal Hewitt’s house. Kyle Rowe said his phone was smashed by a hammer and he had blunt force injuries as well as a machete slash to his head and the pathologist evidence concluded Codi received 12 machete slashes. Krystal Hewitt did not recognise those weapons.
(e)Desiree Conway infers that it was “Speedy” who put the white Falcon in the garage at her address and Codi and Kyle’s blood is in the Falcon, with Codi’s palm print on the lid of the boot in his blood.
(f)Mr Moananui had control of the white Falcon after the events on 12 September, leaving it with Mr Ferguson.
(g)Mr Moananui returns to 61 Rugby Street, where the four other defendants converge.
[10] I indicated to Mr Moananui during the hearing that it is a matter for the jury to decide whether, from those factual matters, including the inferences that the Crown would invite the jury to draw, they are satisfied that he was part of the common purpose and whether he was guilty of murder.
Jeremiah Su’a
[11] Jeremiah Su’a applied for orders dismissing all five charges. The grounds upon which he relied for the s 147 application were as follows:
(a)the electronic tracker confirmed that he was never at Bunnythorpe;
(b)the timing of the texts between Krystal Hewitt and Jeremiah Su’a showed that he was at 107 Mulgrave Street at 21:13 pm, after the two victims had been “removed” from the property;
(c)the police interview of Jeremiah Su’a does not provide any admissions or matters which advance the Crown case;
(d)the evidence of Krystal Hewitt reinforces that there is no evidence of Jeremiah Su’a’s direct involvement in the violence undertaken on 12 September; and
(e)there is no direct admissible evidence that Jeremiah Su’a ordered this to happen in his capacity as president of the Aotearoa Manawatu Chapter of the Mongrel Mob.
[12] Mr Tennet on behalf of Jeremiah Su’a raised a number of other evidential matters, which he submitted amounted to speculation only. Mr Tennet relied on the pathologist’s acknowledgment that she could not rule out Codi Wilkinson’s death from methamphetamine overdose. He also submitted that there is no admissible evidence that weapons were brought to 107 Mulgrave Street. Mr Tennet points to the texts between Jeremiah Su’a and his brother Mariota Su’a. He submitted that it was speculation for the Crown to say this was an organised meeting and there is nothing in the evidence to suggest that Jeremiah Su’a formulated the plan to punish the two victims with his brother.
[13] Mr Tennet finally submitted that manslaughter was a fairer and safer way to put the Crown case, because the evidence invites assumption and guess work to ascertain the requisite knowledge on the part of Jeremiah Su’a.
[14] The Crown pointed to a range of evidential matters which, if accepted by the jury, could convict Jeremiah Su’a of all five charges. In addition to pointing to the evidence of his status as president in the Mongrel Mob and his trusted group, Mariota Su’a, Dean Jennings, Quentin Moananui and Jason Signal, the Crown pointed to a number of features of his police interview, in which Jeremiah Su’a acknowledged he went to Barry Long’s and apologised for the actions of the two victims. The Crown points to his answers to the detective, in which he acted toward Codi Wilkinson and Kyle Rowe in a way which showed he had control over them.
[15] Of importance, the Crown points to the meeting with Mariota Su’a on 12 September at 4:30 pm at the motel, which the Crown says was the time the plan first formed. The Crown points to text messages from Mariota Su’a, the GPS points putting Jeremiah Su’a outside the front of 105/107 Mulgrave Street, approximate to where Codi’s blood is on the open gates of 107 Mulgrave Street and the fence at 105 Mulgrave Street. There is also evidence that Jeremiah Su’a was present on the night at Krystal Hewitt’s place and takes her keys and purse from her shed. He joins the other defendants at 61 Rugby Street, buying pizza and alcohol.
Jason Signal
[16] Jason Signal applied under s 147 to dismiss all five charges against him. Mr Hirschfeld for Jason Signal advanced the application on the grounds that:
(a)as a matter of law on all charges, a properly directed jury could not reasonably convict Jason Signal;
(b)the Crown case against Jason Signal is founded on speculation and not on a series of proven facts;
(c)Jason Signal appears as an adjunct or incidental to the other defendants but he is not involved in any illegal activity; and
(d)there is no evidence to support the Crown case that Jason Signal participated in any criminal activity to constitute an organised criminal group for the common purpose of committing serious violent offences.
[17] The essence of Jason Signal’s application is that he is a close friend and has a “close association” with Jeremiah Su’a, but is not a member or associate of the Mongrel Mob. It is submitted that Jason Signal’s presence at the petrol station and his paying for petrol did not draw any logical inference that he was part of the organised group and that evidence overlooks that Jason Signal was buying his own personal purchase of cigarettes and a top up phone card.
[18] The Crown opposed the application, pointing to Jason Signal’s presence throughout all of the events on 12 September and his close friendship with Jeremiah Su’a. Jason Signal was with Jeremiah Su’a during the day of 12 September
and the Crown pointed to numerous aspects of the evidence, on which they will invite the jury to draw the inference that Jason Signal knew of the plan, was present with the president of the Mongrel Mob when it was carried out at 107 Mulgrave Street and remained with the president when all five defendants met up again at 61 Rugby Street that night.
Dean Jennings
[19] Dean Jennings also applied for orders dismissing all five charges against him. In summary, Mr Lithgow QC submitted that Dean Jennings was not part of the plan, he was a bystander and was a close friend of Codi Wilkinson and Kyle Rowe. He points to the lack of evidence that Dean Jennings knew about the robbery at Barry Long’s, and the absence of evidence showing that he was part of a planning meeting or had any involvement in the taking of weapons to Ashhurst.
[20] In respect of the common purpose alleged by the Crown, Mr Lithgow submits that:
(a)Dean Jennings did not play an active role;
(b)he neither slashed nor hit either victim;
(c)the driving to the scene and his presence are not part of the common intention as alleged by the Crown;
(d)his interview with the Police confirms he was taken by surprise when the events unfolded on 12 September; and
(e)he gave a full statement to the Police because he was upset by the violence and the attack on his friend.
[21] Mr Lithgow submitted further that Dean Jennings refutes the “must have known” claim by the Crown because there is no evidence to support that theory. Further, he submits that this was not culpable homicide because there is a reasonable doubt that Codi Wilkinson died of blood loss. The pathologist acknowledged that he could have died from a meth overdose. In short, Dean Jennings submits that there are no objective facts on which inferences can be drawn.
[22] The Crown opposed the application. The Crown pointed to Dean Jennings accepting that he had the black Mazda, which is consistent with his being at the Mobil petrol station and that he drove, not only to Krystal Hewitt’s place, but also to Bunnythorpe, when he has no connection with Barry Long. Shaneque Terry and Dean Jennings himself, in his interview, confirm he was also present at Rugby Street at the end of the evening, with the others and was given Kyle Rowe’s patch. His partner, Desiree Conway gave evidence of Mr Moananui walking away from the garage, where a white Falcon was parked, and Dean Jennings was then seen driving it several days later.
[23] The Crown relied on the common purpose, that this was a violent de-patching and all five carried out the plan to punish the victims with serious violence. It is a jury question as to whether they find Dean Jennings was part of the common purpose.
Conclusion
[24] As I indicated during the hearing, the Crown’s case is based on the common purpose of all five defendants to carry out a plan to commit unlawful serious violence to punish the two victims and that death or serious injury, wounding with intent, or kidnapping, were probable consequences of its implementation. The Crown has stated its case on a high threshold and accepted the risks of doing so. As the Supreme Court identified in Edmonds v R, in group violence cases, there will often be a decision to be made as to where to pitch the alleged common purpose in terms of criminality. If pitched at a high level:3
the more difficult it may be to establish that particular defendants form 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.
At the end of the day, however, it is a jury decision as to whether they accept the evidence of a common purpose as it relates to each of the defendants.
[25] As a question of law, I have to be satisfied whether there is some evidence, which if it were to be accepted as accurate, would establish each essential element in
3 Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445 at [49].
the alleged offences.4 I was satisfied there was sufficient evidence on which the jury, if they accepted it, could convict.
[26] In addition to the matters advanced by the Crown in respect of Mr Moananui, there is further relevant evidence such as Krystal Hewitt seeing Mr Moananui and Mr Jennings by Kyle Rowe, when he is bleeding and shocked; Krystal Hewitt seeing Mr Moananui moving between two cars in the driveway; and Mr Moananui asking Krystal Hewitt for the DDRs, her camera footage from her property and appearing frantic in doing so. There is evidence also of the white Falcon ending up at Ferguson Street, where Mr Moananui stayed from time to time. Mr Ferguson was asked to tidy it up and he does an amateurish paint job on the Falcon. The jury, if they accept the evidence, could draw inferences of Mr Moananui’s involvement and participation. If the jury accepted the evidence and the Crown’s case, there was sufficient for the jury to find Mr Moananui guilty of the charge of murder.
[27] Similarly, I was satisfied that there was sufficient evidence upon which the jury could convict Jeremiah Su’a of all charges, if the jury accepted the common purpose as the Crown alleged and that Jeremiah Su’a was an integral part of its planning. If the jury accepted that common purpose and the plan, including taking the victims to Barry Long’s to show that they had been punished, then it was open to the jury to convict Jeremiah Su’a of all charges. It was, as I indicated to Counsel at the hearing, a jury determination.
[28] As I indicated to Mr Hirschfeld, the evidence showing Jason Signal’s presence, his text messages, his calling out to Krystal Hewitt in the driveway about her lending the car to Codi, and his presence later that night at 61 Rugby Street were all matters which were questions for the jury as to whether they accepted he was part of the common purpose or plan and was a participant in that plan. I was satisfied there was sufficient evidence upon which the jury could convict, if they were satisfied that the Crown had proved Jason Signal was part of the common purpose or plan.
4 Haw Tua Tau v Public Prosecutor [1982] AC 136 (PC) at 151–152; R v Flyger [2001] 2 NZLR 721 (CA) at [13]; and Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [10].
[29] In respect of Dean Jennings, it was open to the jury to decide whether he was part of the common plan and knew the purpose of the de-patching that night. CCTV footage of Mr Jennings wearing the patch formerly worn by Kyle Rowe and his driving of the black Mazda and subsequently, the white Falcon, were matters that the jury could taken into account in deciding whether he was a participant in the serious violence inflicted on the two victims.
[30] I was satisfied that a properly directly jury could reasonably convict the defendants and declined the s 147 applications accordingly.
[31] In relation to the submissions raised by the defendants about the cause of death of Codi Wilkinson, I too was satisfied, having reviewed the pathologist’s evidence, that there was sufficient evidence, if the jury accepts it, to support her opinion that the cause of Codi Wilkinson’s death was from sharp force injuries and resulting blood loss.
Result
[32]The four s 147 applications were declined.
Cull J
Solicitors:
BVA Law, Palmerston North for the Crown Justice Chambers, Petone for J Sua
Ranfurly Chambers. Auckland for Mr Signal
Robert Lithgow QC, Wellington for Mr Jennings
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