R v Moses
[2022] NZHC 2627
•13 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-092-11754
[2022] NZHC 2627
THE KING v
ANTHONY PAPAROA MOSES ALAN TUTERE COOPER
Hearing: 27-30 September, 3-5 October 2022 Appearances:
C P Howard, S Bicknell and J Barley for Crown G A Walsh and M James for Mr Moses
J Bell and J Keung for Mr Cooper
Verdicts:
13 October 2022
Reasons:
13 October 2022
REASONS FOR VERDICTS OF LANG J
Solicitors:
Kayes Fletcher Walker, Manukau
R v MOSES [2022] NZHC 2627 [13 October 2022]
[1] Mr Moses and Mr Cooper face four charges, all of which arise out of a series of incidents that occurred on the afternoon of 20 November 2020. The charges comprise intentional damage (x3),1 aggravated burglary2 and participating in an organised criminal group.3
[2] The Crown contends that both defendants were party to a plan by numerous members and associates of the Killer Beez gang to exact retribution on a rival gang, the Tribesmen. They implemented this by discharging firearms at houses they believed to be occupied by persons associated with the Tribesmen.
Background
[3] On the afternoon of 20 November 2020 both defendants travelled in separate vehicles from Hamilton to Auckland. Mr Moses was driving an orange Holden Commodore, whilst Mr Cooper was driving a grey Honda Torneo. They stopped on three occasions during the journey to Auckland. The first was at a Z service station in Huntly, where five vehicles parked in close proximity. The occupants of the vehicles then gathered for a group photograph. The vehicles subsequently travelled to the Mobil service station at Mercer, where further vehicles joined them and another group photograph was taken. The convoy then travelled to Bombay, where the occupants of the vehicles shared a meal at a KFC fast food restaurant.
[4] After leaving Bombay the convoy travelled to an address in Rosella Road, Mangere. That address was occupied by Mr Michael Crawford, a leading figure in the Killer Beez organisation. After spending approximately two hours at the Rosella Road address, three convoys of vehicles left the address at intervals of approximately six minutes. The convoys travelled to residential addresses situated in Otara Road, Capstick Road and Pearl Baker Drive in Otara. Upon arriving at these addresses occupants of the vehicles discharged firearms at houses in the vicinity. This caused damage in the form of broken windows and bullet holes to the exterior of the properties.
1 Crimes Act 1961, s 269(1).
2 Section 232(1)(a).
3 Section 98A.
[5] Another convoy of cars travelled to an address in Blampied Road, where the armed occupants of the vehicles accosted the occupant of the address. They asked this person where their son was. They then searched the address to satisfy themselves that the person they were seeking was not there.
[6] These events led to the defendants being charged with intentionally damaging residential properties in Otara Road, Capstick Road and Pearl Baker Drive. They are also charged with the aggravated burglary of the property in Blampied Road and with participating in an organised criminal group.
Burden of proof
[7] In a criminal case such as the present, the Crown bears the onus of proving each charge beyond reasonable doubt. This means I cannot find the defendants guilty on any charge unless I am sure the Crown has proved the essential elements of each charge. It is not sufficient for the Crown to prove that the defendants are probably or even very likely guilty. However, the Crown is not required to prove the charges to a mathematical certainty, given that the events with which the charges are concerned occurred approximately two years ago.
[8] Both defendants have elected to give evidence. In doing so, they did not assume any evidential burden. If I accept what either defendant says as being true, their evidence will provide a complete answer to the charges and verdicts of not guilty must follow. Alternatively, the evidence of the defendants may leave me in a state of reasonable doubt. In that event it would also be necessary to enter verdicts of not guilty. If I reject the defendants’ evidence, I will place it to one side and then consider whether the Crown has proved the charges to the required standard on the basis of the evidence it has adduced.
Basis of liability
[9] On the charges of causing intentional damage and aggravated burglary the Crown contends that the defendants are liable as parties to the offences that were committed.
[10] A person can be a party to an offence in two ways. First, s 66(1)(b) of the Crimes Act 1961 (the Act) provides that a person will be guilty of an offence if he or she intentionally assists another person to commit the offence in the knowledge that the other person intends to commit the offence. Alternatively, liability may be found to exist under s 66(2) of the Act. This provides as follows:
66 Parties to offences
…
(2) 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.
[11] Section 66(2) requires the Crown to prove that two or more persons agreed to assist each other in carrying out an unlawful purpose. In that event, each of those persons will be guilty of all offences committed in carrying out the unlawful common purpose if those offences were known to be a probable consequence of carrying out that purpose. In this context the term “probable consequence” means something that could well happen.4
[12] In the present case the Crown alleges that the persons who went to the Rosella Road address agreed to assist each other to carry out attacks using firearms on residential addresses believed to be occupied by members or associates of the Tribesmen. There is no dispute that this would amount to an unlawful common purpose.
[13] The Crown says the defendants joined in the agreement that was reached at the Rosella Road address. As a result, they are liable for all offending committed by other persons who were also parties to the agreement, provided that offending was committed whilst prosecuting the unlawful common purpose and was known to be a probable consequence of carrying out that purpose. Under s 66(2), a defendant can be guilty of offending committed by others even if he or she is not present when the offence in question was committed.
4 R v Gush [1980] 2 NZLR 92 (CA) at 96.
[14] The Crown therefore contends the defendants are liable for the intentional damage caused at all three residential addresses even though they were not present at each of those addresses when the damage was caused. In addition, the Crown contends they are liable in relation to the aggravated burglary of the Blampied Road property even though they were not present at that address when the armed intruders entered it.5
Factual findings
[15] It is first necessary to make some factual findings to determine whether the Crown can establish liability under s 66(1) and (2). The first issue arises out of the evidence given by both defendants. In essence each says he went to Auckland on 20 November 2020 for reasons entirely unconnected with the theory advanced by the Crown. They say they never agreed to become involved in the attacks on properties associated with the Tribesmen and that they did not know others intended to carry out those attacks. They say they became entangled in the events that occurred through circumstances beyond their control.
[16] The first issue is therefore whether the Crown has proved beyond reasonable doubt that the defendants knowingly and intentionally participated in the events that occurred on 20 November 2020. They will be entitled to verdicts of acquittal if I find it is reasonably possible that they became caught up in those events in circumstances where they did not intend to participate in them.
Did the defendants knowingly and intentionally participate in the events that occurred on 20 November 2020?
The defendants’ explanations Mr Moses
[17] When the police interviewed Mr Moses on 8 December 2020, he told them he had been forced to drive to Auckland by two persons who had arrived at his mother- in-law’s address and threatened him on the morning of 20 November 2020. When he
5 The charge of burglary has been laid in its aggravated form because the offenders were armed with firearms when they entered the Blampied Road address.
gave evidence, he said this explanation was false and that he had made it because of peer pressure.
[18] Mr Moses said he went to Auckland because his friend Mr Adrian Awhi and two of Mr Awhi’s associates wanted to be picked up in Huntly and taken to Auckland to attend a barbecue. Mr Moses said that he also wanted to visit his aunt in Auckland.
[19] Mr Moses spoke to Mr Cooper before leaving Hamilton on the morning of 20 November and learned that Mr Cooper was also planning to travel to Auckland that morning. Mr Moses then followed Mr Cooper when he left Hamilton.
[20] Mr Moses said they stopped at the Z service station in Huntly to get some fuel and he met some friends there. He said he then went to the Mobil service station in Mercer, where he met some more friends. He then travelled to Bombay, where they stopped for food at the KFC restaurant. He then drove to the Rosella Road address. He denied being part of a convoy during the journey to Auckland and said he had been following Mr Cooper and not the other vehicles.
[21] Mr Moses said he went to the Rosella Road address because Mr Awhi and his associates wanted to be dropped off there. He said there were lots of people he did not know at that address, and he decided to park at the top of the driveway. Mr Awhi and his associates then got out of the vehicle and walked down the driveway of the address. Mr Moses said he did not go inside the Rosella Road address and remained at the top of the driveway. He then left the Rosella Road address after 10 or 15 minutes and went to visit his aunt. This evidence is consistent with the fact that at 2.40pm Mr Moses’ vehicle is captured on CCTV following behind Mr Thompson’s black Mercedes at the intersection of Massey and Buckland Roads in Mangere.
[22] Mr Moses said he subsequently returned to the Rosella Road address to pick up Mr Awhi and his associates. One of Mr Awhi’s friends then told him to “follow us”, and he unwittingly became part of the convoy that went to Otara Road. He said he “freaked out” when he saw a person standing on the road with a gun. He then turned around and immediately attempted to leave. He said that thereafter he was endeavouring to leave Auckland and return to Hamilton. However, he could not
simply abandon the persons he was following because he did not want to be considered a “pussy”. Mr Moses also said he was afraid for the safety of his family after he saw that firearms were being used by the group he had been following. He denied having any prior knowledge that firearms were to be discharged at any properties in Otara.
[23] Mr Moses also denied in cross-examination that he was a patched member of the Killer Beez but acknowledged that in November 2020 he had a prominent Killer Beez tattoo on his calf.
Mr Cooper
[24] Mr Cooper said his cousin visited him on the morning of 20 November 2020 and asked him for a ride to Auckland. The purpose of that journey was to take another cousin to Auckland and to pick up a third cousin who lived in Auckland. He planned to bring that cousin back to Hamilton so they could go to a birthday party that night. They decided to go to Auckland in the Honda Torneo, which belonged to one of his cousins. This vehicle was dropped off at Mr Cooper’s address that morning.
[25] Mr Cooper said he left Hamilton with three of his cousins in the Honda Torneo. He said he had spoken with Mr Moses earlier in the day but he did not mention travelling to Huntly with him. He said he met other persons at the service station in Huntly where he stopped to get some food. He said he had no prior knowledge of the fact that he would meet these persons at Huntly.
[26] Mr Cooper said that he then followed the other vehicles to Auckland and remained outside the Rosella Road address. He said there were 30 or 40 people there but he did not know any of them, other than those who had travelled in his vehicle. Mr Cooper said that after approximately 15 minutes he left the Rosella Road address in Mr Moses’ orange Holden Commodore to pick up his cousin. He said Mr Moses dropped him off at his cousin’s house and then picked him up on the way back to Rosella Road. He said they were away from the Rosella Road address for approximately an hour and 40 minutes.
[27] Mr Cooper said that when he returned to the Rosella Road address to pick up the Honda Torneo he followed the rest of the cars that were leaving the Rosella Road
address. He said nobody told him what was happening, and he thought they were going to another address. He then followed the other vehicles to Otara Road, where he heard sounds like fireworks and realised they were gunshots. After hearing these sounds Mr Cooper said he initially froze, and then decided to leave as quickly as he could. He went back the same way he had arrived and headed to the motorway to return to Hamilton. He then came upon the other vehicles by coincidence and followed them.
[28] Mr Cooper acknowledged that he turned onto Pearl Baker Drive, where he saw people standing outside on the street. He did not hear any further gunshots but heard glass smashing. He then left the scene and drove back to the motorway. He stopped in Papakura for a while and then drove to Ngaruawahia, where he attended a party. He then went back to Hamilton the following day.
[29] Mr Cooper denied knowing about or being party to any plan that involved the discharge of firearms at addresses associated with the Tribesmen.
[30] The explanations given by Mr Moses and Mr Cooper need to be measured against the factors relied upon by the Crown to prove that they were knowing and willing participants in the events that occurred on 20 November 2020.
The Killer Beez Facebook Messenger group chat
[31] The Crown submits that the events that occurred on the afternoon of 20 November 2020 were clearly the subject of considerable prior planning. Some of this is disclosed in messages sent to a Facebook Messenger group chat that a member of the Killer Beez established at 11.13 pm on 18 November 2020. This person added Mr Michael Crawford, who lived at Rosella Road, to the chat just two minutes later. Over the next two days numerous other persons, all of whom were associated in some way with the Killer Beez, were added to the group chat. Mr Cooper’s brother, who went under the name (or handle) “Zake Arak”, added Mr Cooper to the chat at 5.44 pm on 19 November 2020.
[32] At 12.33 am on 20 November 2020 Mr Crawford sent the following message to the group chat:
… HAPPY BEEZDAY MY KILLER BANDI WILL SMOKE THESE CUNTS FOR UR BIRTHDAY
[33] After receiving several responses from others in the group Mr Crawford sent the following message at 12.45 am:
… HARD MY KILLER WILL MAKE IT ONE TO REMEMBER
[34] Further messages continued to be sent during the early hours of the morning on 20 November. At 5.41am a person using the name Mike Larry said:
… AO my brother an morning my killer, may the boys here an above be by yor side as you pursue the arrivals that plot against the killerbeez family AAAO KILLER
[35]Then, at 6.27am, a person using the name Akrapovik King said:
… AO Morena my killer bad brothers will see use all today AO KBZDUP ALWAYZ
[36] Mr Sean Thompson, who pleaded guilty to the charges against him during the present trial, sent the following message at 9.01 am:
… AO killers we on route to the destination … AAOO KBZDUP
[37] These messages make it clear that those who viewed messages sent to the group chat would have known the Killer Beez were planning an event that was to occur on 20 November 2020. This involved the pursuit of persons who were viewed as having plotted against the Killer Beez family.
[38] Mr Moses was never added to the Killer Beez group chat. However, he obviously has a close association with the Killer Beez because of the tattoo on his calf.
The journey to Auckland
[39] CCTV camera footage at the Huntly Z service station depicts five vehicles arriving in convoy at 11.33 am. These were led by a white Ford Ranger utility vehicle driven by Mr Paul Cassidy, a well-known member of the Killer Beez. The convoy
also included the orange Holden Commodore driven by Mr Moses and the grey Honda Torneo driven by Mr Cooper.
[40] After arriving at the service station in Huntly all five vehicles parked in a group at one end of the service station forecourt. The occupants of the vehicles can be seen on CCTV footage socialising with each other in the area around their vehicles. A short time later they gathered in a group to be photographed.
[41] A notable feature of the photograph is that several members of the group were wearing yellow and black coloured items of clothing. The Killer Beez have adopted yellow and black as their colours. Another notable feature is that everybody in the photograph is shown making a gesture associated with the Killer Beez. This takes the form of the middle finger of each hand being extended upwards, with the remaining fingers folded down.
[42] The vehicles left the service station in convoy led by Mr Cassidy’s Ford Ranger. They then travelled to the Mobil service station in Mercer, where they were captured on CCTV arriving one after the other at 12.12 pm.
[43] A few minutes earlier, at 12.03 pm, two other vehicles had arrived at the same service station. These were a black Mercedes driven by Mr Sean Thompson and a silver BMW sedan. Both these vehicles were involved in the events that occurred in Otara later in the day. CCTV footage shows that occupants of these two vehicles immediately began socialising with those in Mr Cassidy’s convoy. The expanded group then posed for another group photograph. Once again everyone in the group was photographed making the one fingered gesture associated with the Killer Beez.
[44] The convoy then travelled to the fast-food outlets just off the motorway at Bombay, arriving there at 12.43 pm. Mr Moses can be seen on CCTV footage wrestling or playfighting with Mr Thompson in the carpark there. This obviously suggests the two men knew each other well.
[45] CCTV footage from inside the KFC restaurant then shows the occupants of the vehicles partaking in a communal meal. They returned to their vehicles at approximately 1.20 pm and left the carpark a few minutes later.
[46] At 1.56 pm footage from a CCTV camera installed by Auckland Transport at the intersection of Hospital and Massey Roads in Mangere shows the seven vehicles turning into Massey Road, a short distance away from Rosella Road. The convoy was led by the white Ford Ranger driven by Mr Cassidy. The orange Holden Commodore being driven by Mr Moses was directly behind Mr Cassidy’s vehicle, and Mr Cooper’s grey Honda Torneo was directly behind Mr Moses’ vehicle. The vehicles then travelled to the Rosella Road address.
Analysis
[47] The explanations given by Mr Moses and Mr Cooper are not consistent with several aspects of the evidence adduced by the Crown. Given that the five vehicles must have started their journey to Auckland from different locations, they must have been in communication with each other whilst in transit. This is the only realistic explanation for the fact that they arrived in Huntly at exactly the same time. I am therefore satisfied the five vehicles arrived together at the service station in Huntly by design rather than coincidence. This is confirmed by the fact that the five vehicles subsequently drove to Mercer in convoy.
[48] In this context it is noteworthy that after the shootings occurred later in the day a message was sent to the Killer Beez group chat at 5.11pm saying “Turn walkies off”. This is followed immediately by two further messages stating “Ao turn them off” and “Asap”. I therefore consider it likely the occupants of the vehicles that arrived at the service station in Huntly were communicating with each other using walkie talkie radios.
[49] The obvious inference to be drawn from the contemporaneous arrival of the five vehicles at the service station in Huntly is that they were travelling together as a group. The fact that the occupants of the five vehicles immediately began socialising with each other and then posed for a group photograph also suggests the meeting had been planned in advance. It was not coincidental as Mr Moses and Mr Cooper claim.
[50] The group’s second stop just a short distance away at the Mobil service station in Mercer is explained by the fact that Mr Thompson and the person driving the silver BMW had arranged to join the convoy at that location. As I have already recorded, those vehicles arrived at the service station in Mercer just minutes before the other five vehicles.
[51] The fact that both Mr Moses and Mr Cooper are shown making Killer Beez hand signals in the two group photographs also suggests their knowing and willing participation in what was occurring. In addition, they shared in the meal at the KFC restaurant at Bombay. Finally, the fact that they then travelled in convoy with the other vehicles from Bombay to the Rosella Road address indicates that they intended to do so and were not there by coincidence.
[52] As I have already observed, Mr Moses’ vehicle was captured on CCTV travelling away from the Rosella Road address at 2.40pm. He had arrived there shortly after 1.55pm. This means he was at the address for approximately 40 minutes. It is also noteworthy that his vehicle was travelling behind the black Mercedes driven by Mr Thompson. This calls into question his explanation that he left the Rosella Road address to visit his aunt.
[53] Mr Cooper’s explanation about what happened after he arrived at the Rosella Road address also raises issues. Mr Moses did not say that Mr Cooper was in his vehicle when he left the Rosella Road address and Mr Cooper’s counsel did not suggest to him in cross-examination that this occurred. Mr Moses said that he had visited his aunt in Massey Road for approximately two hours and then picked up takeaway food before returning to the Rosella Road address. He made no mention of taking Mr Cooper to his cousin’s address and then picking Mr Cooper and his cousin up on the way back to the Rosella Road address to pick up Mr Awhi and his associates. I also consider it significant that Mr Cooper’s counsel did not suggest to Mr Moses that these events occurred. I therefore do not accept Mr Cooper’s explanation that he left the Rosella Road address with Mr Moses. I am satisfied he remained at the Rosella Road address until he joined the second convoy when it left the address at 4.31 pm.
[54] Nor do I consider it credible that Mr Moses and Mr Cooper would have followed the other vehicles when they left the Rosella Road address without knowing where they were going and what they were to do when they got there. If their explanations are correct, both Mr Moses and Mr Cooper had already achieved what they wanted to do in Auckland that day. This raises the issue of why they felt the need to join the second convoy as it left the Rosella Road address. They could have returned to Hamilton at that point.
[55] It is also difficult to see why Mr Moses and Mr Cooper would have travelled with the convoy to the address in Otara Road unless they had known what was to happen there and intended to participate in it. In addition, if they did not intend to become involved in the events that occurred at Otara Road I consider they would have left Auckland immediately once they saw what happened there. Instead, they both remained in the convoy as it travelled to Pearl Baker Drive.
[56] Mr Moses’ explanation that he immediately attempted to leave Otara Road once he saw what was happening there needs to be measured against the evidence of Ms Cia Levasa, who came out of her address on Otara Road to see what was going on after hearing a gunshot. She then filmed Mr Moses’ vehicle on her cellphone. This shows the vehicle parked on the grass verge outside a church. That is obviously inconsistent with his evidence that he immediately tried to leave Otara Road after he realised a gunman was present.
[57] Furthermore, the vehicles in the convoy, including those being driven by Mr Moses and Mr Cooper, were later captured on CCTV doing two “U-turns” on East Tamaki Road after leaving Otara Road and whilst travelling to Pearl Baker Drive. This involved all six vehicles crossing a grass median on two occasions. The only realistic explanation for Mr Moses and Mr Cooper engaging in these manoeuvres is that they remained part of the convoy. The manoeuvres were obviously designed to confuse any vehicles that might be pursuing the convoy.
[58] Finally, Mr Cooper became involved in messages sent to the Killer Beez group chat after the shootings had taken place. At 5.15 pm Mr James Williams, a person
who has pleaded guilty to charges arising out of the shootings on 20 November, posted the following message:
17:30:19Williams James (James Williams) – Find your own spot with your circle and stay on line AAAO
[59] This was the subject of numerous responses by members and associates of the Killer Beez. At 6.01pm Mr Cooper posted:
18:01:39Kuni Arak (Alan Cooper) – Ao my kings and kbrothers we safe at araks spot in kura
[60] This message shows that Mr Cooper was reporting to others in the group that he and the other occupants of his vehicle had made it safely to his cousin’s address in Papakura. It is highly unlikely that he would have done this if he did not consider himself to be part of the group that carried out the attacks earlier in the day.
[61] Taking these factors into account I am satisfied beyond reasonable doubt that from at least the gathering at the service station in Huntly both Mr Moses and Mr Cooper were knowingly and intentionally involved in the events that occurred thereafter. I do not accept that they became entangled in those events unintentionally or through factors beyond their control.
[62] I am also sure that both Mr Moses and Mr Cooper knew, when they travelled to Auckland, that they were going to be involved in retributive actions later that day by the Killer Beez against persons associated with the Tribesmen. They may not have known the details of these, or the precise roles they were to play, until they got to the Rosella Road address. However, I am sure that by the time they left the Rosella Road address both men knew they were travelling to residential addresses occupied by persons associated with the Tribesmen, and that firearms were to be discharged at those addresses. They did so with the intention of providing support and assistance to those who were to carry out the attacks. It follows that they were both parties to an agreement with several other persons to assist in carrying out an unlawful purpose.
[63] This factual finding is sufficient to determine the charges that both men face. However, before considering the individual charges I propose to determine whether firearms were carried in the vehicles driven by the two defendants.
Were firearms carried in the vehicles driven by the two defendants?
Mr Moses
[64] The Crown relies in this context on the evidence of Ms Tania Cribb and her partner Mr Patea Williams-Fisher.
[65] Ms Cribb went outside her address in Pearl Baker Drive when she heard a loud bang on the afternoon of 20 November 2020. She saw a white BMW motor vehicle travelling along Johnstones Road from the direction of Pearl Baker Drive. It then drove around Tyrone Street, which is a loop road or crescent running off Johnstones Road. She heard two further bangs as the vehicle was in Tyrone Street. She also saw an orange Holden Commodore following the white BMW. As the vehicles exited Tyrone Street back onto Johnstones Road Ms Cribb saw a blue van following the orange Holden. The blue van appeared to have been damaged by gunshots.
[66] Ms Cribb then saw the white BMW drive onto Pearl Baker Drive. The other vehicles sped straight ahead on Johnstones Road past the entrance to Pearl Baker Drive. Ms Cribb said that the driver of the Holden had a small gun in his hand. She described it as resembling a little hand pistol or handgun. Ms Cribb then dialled 111 and spoke to the police.
[67] Ms James submits on Mr Moses’ behalf that Ms Cribb’s evidence has been shown to be unreliable because it differs in material respects from a written statement she made to police on 4 December 2020. I accept this submission, and do not rely upon Ms Cribb’s evidence as providing an entirely accurate version of the events that occurred. It is, however, noteworthy that when Ms Cribb called the police immediately after seeing the events unfold, she told them that the driver’s window in the orange Holden was down and she could see that the driver had “a little handgun type”. This contemporaneous record persuades me that Ms Cribb’s evidence about the driver of the orange Holden being in possession of a small handgun is reliable and should be accepted.
[68] Ms Cribb’s partner, Mr Williams-Fisher, said that he saw the driver of the orange Holden Commodore pass a black shotgun to someone in the back seat of the
vehicle. However, I am not prepared to accept his evidence as reliable because he acknowledged that he only had a glimpse of the vehicle as it drove past. He also accepted he could be mistaken about the gun.
[69] It follows that the evidence given by Ms Cribb satisfies me that Mr Moses was in possession of a small firearm at the time of the shootings in Otara Road and Pearl Baker Drive.
Mr Cooper
[70] In relation to Mr Cooper, the Crown relies on the evidence of Mr Shiva Naicker and Ms Karen Timai.
[71] Mr Naicker said that at about 4 pm on 20 November 2020 he was stopped at the traffic lights at the intersection of Bairds Road and Otara Road. He looked down Otara Road and saw a person with a gun standing at the rear of a parked silver vehicle. This person was firing shots at a house on Otara Road. Mr Naicker said the vehicle was parked diagonally across the road. He said the gunman got back into the silver vehicle and it then pulled in behind his vehicle as he waited to turn right onto Bairds Road. A short time later film footage from a camera installed on the dashboard of Mr Naicker’s vehicle records six vehicles turning left onto East Tamaki Road. These comprise a white BMW, a dark blue BMW, a black Mazda Atenza, Mr Moses’ orange Holden Commodore, Mr Cooper’s grey Honda Torneo and a silver Nissan Maxima.
[72] Mr Naicker called 111 and reported what he had seen to the police. He said he thought the vehicle the gunman had got back into Otara Road was a dark Mazda. One of the photographs taken by Ms Levasa depicts a dark coloured Mazda Atenza parked diagonally across Otara Road at the time of the shootings. The same vehicle is subsequently filmed by Mr Naicker’s dashcam turning left into East Tamaki Road. A silver Nissan Maxima was likewise filmed at the rear of that convoy. Given the information Mr Naicker gave to police at the time of his 111 call, I consider it more likely that the gunman he saw in Otara Road arrived and left in the dark coloured Mazda Atenza and not in Mr Cooper’s grey Honda Torneo.
[73] Ms Timai was in the kitchen of her address in Pearl Baker Drive when she heard what sounded like a gunshot followed by the sound of a vehicle driving away and then coming back. She could also smell gunpowder through her open ranch slider door. As she walked out to her mailbox she heard a second shot. She said the shot came from a vehicle that was travelling very slowly past 12C Pearl Baker Drive, which is on the other side of the road from Ms Timai’s address. She said this vehicle was the only one that was present at that time. She said that the vehicle moved slowly past her and then accelerated quickly away.
[74] Ms Timai also said she could see a gun being pointed out of the vehicle from the rear passenger seat on the driver’s side of the vehicle. She said the person who held the gun was pointing it over the top of an eight or nine year old child who was in the rear seat on the passenger’s side.
[75] Ms Timai described the vehicle as being an older model grey Honda, and said she could be certain about this because one of her friends had owned a similar vehicle. However, she said she could not see much of the driver’s face because it was largely obscured by a bandanna he was wearing. She said the shot was fired at 12C Pearl Baker Drive and she could see that a white van parked outside that address had been hit by gunfire.
[76] In cross-examination Ms Timai agreed the vehicle she had seen could be described as silver but she did not agree it could have been a silver Nissan rather than a Honda. She also accepted that she had originally told the police she could not see the driver’s face because he had his hand in front of it. She had not mentioned the fact that he was wearing a bandanna.
[77] The important feature about Ms Timai’s evidence is that she is certain the vehicle she saw in Pearl Baker Drive immediately after the shooting was an older model Honda. She was clearly familiar with that type of vehicle because of the fact that her friend used to own a vehicle of that type. Ms Timai’s evidence is supported by CCTV footage that shows Mr Cooper’s grey Honda Torneo turning into Pearl Baker Drive at about the time of the shootings. Mr Cooper also accepted in evidence that he
had driven down Pearl Baker Drive at a time when he heard glass breaking and saw persons standing outside on the street.
[78] These factors satisfy me beyond reasonable doubt that Ms Timai saw Mr Cooper’s vehicle travelling slowly up the street virtually immediately after the second shot was fired. Ms Timai is obviously mistaken about the other passenger in the rear of the vehicle being a child. However, I accept that she correctly identified Mr Cooper’s Honda as being the vehicle from which at least one shot was fired at 12C Pearl Baker Drive.
The charges
[79] It is now necessary to apply my factual findings to the charges the defendants face. I deal with the three charges of intentional damage first.
[80] There is no dispute that damage was intentionally caused to the properties at 42C Otara Road, 12C Pearl Baker Drive and 44 Capstick Road when firearms were discharged at them. The issue to be determined is whether the defendants are liable as parties for the damage that was caused.
Charge 1: Intentional damage (42C Otara Road)
[81] The Crown cannot prove that Mr Moses or Mr Cooper, or any of the occupants of their vehicles, were responsible for firing shots at 42C Otara Road. However, I have found that they both travelled to Otara Road to assist and support those who they knew were to be responsible for firing shots at a house in that street. It follows that both defendants are guilty of Charge 1 as parties under s 66(1)(b) of the Crimes Act 1961.
Charge 2: Intentional damage (44 Capstick Road)
[82]The Crown relies on s 66(2) of the Crimes Act 1961 to prove this charge.
[83] I have found that both defendants agreed to assist in carrying out a plan that involved the discharge of firearms at houses believed to be occupied by persons associated with the Tribesmen. Neither defendant travelled to 44 Capstick Road but
the events that occurred at that address mirrored those that occurred at 42C Otara Road. Several shots were fired at the address, causing damage to the walls and windows of the house.
[84] I have no doubt that the attack on 44 Capstick Road was carried out by another of the convoys that left the Rosella Road address and that it occurred in pursuance of the plan the defendants had agreed to participate in. The defendants knew that the discharge of firearms at addresses believed to be occupied by persons associated with the Tribesmen was a certain consequence of the prosecution of the unlawful common purpose. It follows that the defendants are guilty of this charge as parties under s 66(2) of the Crimes Act 1961.
Charge 3: Intentional damage (12C Pearl Baker Drive)
[85] I have found that a person in the rear seat of Mr Cooper’s vehicle was responsible for firing at least one of the shots at this address. Mr Cooper is therefore guilty of this charge as a party under s 66(1)(b) of the Crimes Act because he drove the shooter to and from the address knowing what he was going to do and intending to assist him to do it.
[86] Mr Moses did not enter Pearl Baker Drive because his vehicle was being pursued by the blue van at that time. This caused him to drive straight ahead at the intersection of Johnstones Road and Pearl Baker Drive. However, he travelled with the other vehicles from Otara Road to Pearl Baker Drive and only decided not to enter Pearl Baker Drive at the last minute. The attack on 12C Pearl Baker Drive followed shortly after Mr Moses had left 42C Otara Road and was in all material respects the same as that which had taken place on Otara Road. It was plainly carried out as part of the plan to discharge firearms at addresses associated with the Tribesmen. Mr Moses is therefore guilty of this charge as a party under s 66(2) of the Crimes Act 1961.
Charge 4: Aggravated burglary (42 Blampied Road)
[87] This charge is different in nature to that involving the attacks on the other three addresses. The persons who went to 42 Blampied Road did not discharge firearms as
had been the case at the other addresses. Rather, they entered the address seeking to find a specific individual. It is not known why they did this or what they intended to do if they succeeded in finding him.
[88] I cannot be sure that this incident occurred as part of the plan to which the defendants were parties. Nor can I be sure that it was a probable consequence of the prosecution of the unlawful common purpose. The defendants must therefore be acquitted on this charge.
Charge 6: Participation in an organised criminal group
[89]Section 98A of the Crimes Act provides as follows:
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—
(a)obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more; or
(b)obtaining material benefits from conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of offences that are punishable by imprisonment for a term of 4 years or more; or
(c)the commission of serious violent offences; or
(d)conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of serious violent offences.
(3)A group of people is capable of being an organised criminal group for the purposes of this Act whether or not—
(a)some of them are subordinates or employees of others; or
(b)only some of the people involved in it at a particular time are involved in the planning, arrangement, or execution at that time of any particular action, activity, or transaction; or
(c) its membership changes from time to time. (Emphasis added)
[90] As will be evident from the wording of the section, the Crown must prove (in the context of the present case):
(a)the existence of a group of three or more persons who shared the objective of committing serious violent offences;
(b)knowledge by the defendant that such a group exists;
(c)participation by the defendant in the activities of the group;
(d)knowledge or recklessness by the defendant that his or her conduct may contribute to the occurrence of any criminal activity; and
(e)knowledge or recklessness by the defendant that the criminal activity may contribute to achieving the particular objectives of the group.
[91] There is no dispute regarding the first element. The defendants accept that a group consisting of three or more persons associated with the Killer Beez shared the objective of causing serious violence to persons associated with the Tribesmen gang in November 2020. This concession is not surprising given that numerous persons associated with the Killer Beez have now entered guilty pleas to the charge that the defendants face.
[92] For the reasons I have already given I am satisfied beyond reasonable doubt that the defendants knew that three or more persons shared this objective. This knowledge came from the agreement the defendants entered into with numerous others at the Rosella Road address on 20 November 2020.
[93] The defendants then participated in the activities of the group by driving their vehicles to Otara Road and Pearl Baker Drive, where shootings occurred. In doing so the defendants clearly knew their conduct was contributing to the occurrence of criminal activity because they were knowingly and intentionally providing support and assistance to persons who carried out the shootings at those addresses.
[94] Finally, I am also sure the defendants knew that the shootings contributed to achieving the objectives of the group. The shootings were the means by which the group sought to achieve its objective.
[95] I am therefore satisfied beyond reasonable doubt that the defendants are guilty of this charge.
Summary of verdicts
[96] I find the defendants guilty on charges 1, 2, 3 and 6. I find the defendants not guilty on charge 4.
[97] I record that at the end of the Crown case the defendants were discharged on Charge 5, a charge of intentionally damaging a property in Preston Road, Otara on 21 November 2020.
Lang J