R v Pirret HC Auckland CRI 2008-063-4495
[2010] NZHC 328
•17 March 2010
IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
CRI-2008-063-004495
THE QUEEN
v
DANIEL PIRRET SHANE EPAPARA MICHAEL MIHAKA
Hearing: 2 March 2010
Appearances: F Pilditch and L Owen for Crown
J Bergseng for Accused Pirret
C Horsley for Accused Epapara
M Dorset for Accused Mihaka
Judgment: 17 March 2010 at 9.00 a.m.
JUDGMENT OF VENNING J
On reasons for s 347 discharge
This judgment was delivered by me on 17 March 2010 at 9.00 am, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Rotorua
Bergseng & Co, Tauranga/Rotorua
Adams & Horsley, TaurangaArawa Street Legal Chambers (M Dorset)
R V PIRRET AND ORS HC ROT CRI-2008-063-004495 17 March 2010
Introduction
[1] The three accused were on trial in this Court at Rotorua facing the following two counts:
(1)that together with Hareopa Katene and Eria Katene, they attempted to murder Alec Tuhoro; and, in the alternative,
(2)that together with Hareopa Katene and Eria Katene, they discharged a firearm at Alec Tuhoro with intent to do grievous bodily harm to him.
[2] At the conclusion of the Crown case I discharged the accused in relation to count 1 with reasons to follow. These are the reasons.
Procedural background
[3] In the initial indictment the accused were jointly charged with Hareopa Katene and Eria Katene with attempted murder and, in the alternative, discharging a firearm with intent to do grievous bodily harm. The initial indictment also contained
a number of other counts against Hareopa and Eria Katene that did not involve the accused.
[4] On the morning of trial and before the jury were empanelled, Hareopa and Eria Katene were arraigned and pleaded guilty to count 2, the alternative count. They also pleaded to some of the other less serious counts in the initial indictment. On their entering guilty pleas to those counts, the Crown elected not to pursue count
1, the charge of attempted murder against either of them. Hareopa and Eria Katene were remanded for sentence to 23 April 2010. They were not formally discharged in relation to count 1 pending sentence in relation to count 2: R v Holt.[1]
[1] R v Holt [2009] 1 NZLR 325 at [64].
[5] The Crown then presented an amended indictment directed at these three accused charging them in the above terms.
Evidential background
[6] The brief background to the offending is that, for a reason which never became clear on the evidence, there was an issue between Hareopa Katene and, to a lesser extent, his son Eria Katene and Shannon Tuhoro. The main protagonists are all related. Shannon Tuhoro’s mother, Katarina Katene is Hareopa Katene’s sister. She is Alec Tuhoro’s partner. The issue between Hareopa and Eria Katene and Shannon Tuhoro came to a head during the course of the 27th September 2008. That day there was a stand-off between Shannon Tuhoro and Eria Katene at Ford Road, Rotorua. At the time two of the three accused, Shane Epapara and Michael Mihaka, were with Eria Katene. No charges arose out of that incident. Apart from an exchange of verbal abuse between Eria Katene and Shannon Tuhoro nothing of any particular moment occurred at that time.
[7] There then followed a series of abusive text messages and telephone calls between Shannon Tuhoro and Hareopa Katene. Most of the communications and abuse was initiated by Shannon Tuhoro. However, Shannon Tuhoro’s evidence was that, during the course of the afternoon and in a number of telephone calls Hareopa Katene threatened to kill him. Shannon Tuhoro took the threats seriously. He called
his father, Alec Tuhoro, who was in New Plymouth at the time to tell him of the threats. Alec Tuhoro told Shannon to stay at his Uncle David’s place until he, Alec, returned. Alec Tuhoro and Katarina Katene then drove back from New Plymouth to Rotorua during the course of the late afternoon.
[8] When Alec Tuhoro arrived back in Rotorua he collected Shannon Tuhoro and, together with Katarina Katene and David Tuhoro, they returned to the Tuhoro home at Rotoiti. Alec Tuhoro then had a telephone conversation with Hareopa Katene. On Alec Tuhoro’s evidence it ended with Hareopa Katene saying “I’m coming down to shoot you and your son”. Alec Tuhoro’s response was “bring it on”.
[9] At that time Hareopa Katene and Eria Katene were at the home of the accused Pirret, which was only about five minutes away. The other accused Epapara and Mihaka were also there.
[10] Hareopa Katene, Eria Katene and the three accused then went to the Tuhoro property. They travelled in two four wheel drive vehicles. Hareopa Katene drove the first vehicle. Daniel Pirret and Michael Mihaka were with him. Eria Katene drove the second vehicle. Shane Epapara was with him. The evidence of the Tuhoros was that as the vehicles drove up the driveway and approached the Tuhoro property. Hareopa Katene then put a .22 firearm out the window of the driver’s door
of the first vehicle and fired shots towards the home. Alec Tuhoro was waiting in another four wheel drive vehicle to the side of the driveway. When the vehicle driven by Hareopa Katene came onto the Tuhoro property Alec Tuhoro drove his four wheel drive vehicle into the driver’s door of the first vehicle driven by Hareopa Katene. Alec Tuhoro said that at that stage Hareopa Katene turned the firearm towards him and discharged a further five or six shots at him. Alec Tuhoro said the shots hit the windscreen of his vehicle. The forensic evidence did not support Alec Tuhoro’s evidence that bullets hit his vehicle. Examination of the vehicle driven by Alec Tuhoro did not disclose any bullet strikes on the vehicle or the windscreen as he had described. The forensic evidence did, however, confirm that at least three cartridges found at or around the area where Hareopa Katene’s vehicle was, had been fired by the .22 Magtech firearm that Hareopa Katene was later found with.
[11] Immediately upon Hareopa Katene’s vehicle being rammed by Alec Tuhoro, Shannon Tuhoro, who had been waiting on the other side of the driveway, attacked the passenger’s side of the vehicle with a spade. He also attacked the passengers as they tried to get out. Mr Mihaka was injured. The accused Mr Pirret, Mr Mihaka and Mr Epapara, all immediately decamped. The Crown accept their involvement ceased at that time.
[12] After Alec Tuhoro rammed Hareopa Katene’s vehicle, Eria Katene fired a shot from a .308 rifle at the front of Alec Tuhoro’s vehicle and then also ran away. The bullet hit just behind the indicator and went into the engine. It was fired at almost a right angle to the vehicle but was not directed towards the driver’s door. The Crown do not suggest that Eria Katene attempted to kill Alec Tuhoro. In accepting his guilty plea to the alternative count of discharging a firearm with intent
to do grievous bodily harm, the Crown do not rely on the .308 shot other than as an
aggravating feature of his involvement as a secondary party to the actions of
Hareopa Katene.
The Crown case
[13] The Crown case against the accused is that they were parties to the attempted murder of Alec Tuhoro by Hareopa Katene or, in the alternative, that they were parties to the discharge of a firearm at Alec Tuhoro by Hareopa Katene with intent to
do grievous bodily harm. The Crown accepts that the principal offender was
Hareopa Katene.
[14] The Crown say the accused were parties to the attempted murder of Alec
Tuhoro by Hareopa Katene either under s 66(1)(c), by abetting or encouraging him
in his actions of attempting to kill or under s 66(2), by being parties to an unlawful purpose to assault the Tuhoros with, if necessary, resort to firearms.
[15] The elements required to prove count 1 against the accused as parties are:
a) first, that Hareopa Katene intended to kill Alec Tuhoro;
b)second, that he discharged the .22 firearm at Alec Tuhoro for the purpose of killing Alec Tuhoro to give effect to that intent;
c) third, that the accused were parties to the actions of Hareopa Katene by either:
i)knowing that Hareopa Katene intended to kill Alec Tuhoro, by their words or actions they encouraged Hareopa Katene in his attempt to kill Alec Tuhoro and, by those words or actions, they intended to encourage Hareopa Katene in his attempt to kill; or alternatively:
ii) the accused and at least one other formed a common intention
to assault Alec and/or Shannon Tuhoro and agreed, if
necessary, to use firearms to do so and knew that the intentional attempt to murder one of the Tuhoros was a probable consequence of the implementation of that common intention: R v Murphy.[2]
[2] R v Murphy [1969] NZLR 959.
[16] The actus reus of the principal, Hareopa Katene, is the same for both counts 1 and 2. It is the discharge of the firearm at Alec Tuhoro. The difference between count 1 and count 2, at least in relation to the involvement of the principal is the mens rea. Count 1 requires Hareopa Katene to have an intent to kill. For count 2 the lesser intention to cause grievous bodily harm is sufficient.
The effect of the plea
[17] In accepting the plea by Hareopa Katene (and Eria Katene as a secondary party) to count 2 the Crown elected not to pursue either Hareopa Katene or Eria Katene in relation to count 1. I accept that the Crown’s decision was an entirely appropriate and proper decision to make in the interests of justice overall. However, implicit in that decision is that the Crown must be taken to have accepted, at least in relation to Hareopa and Eria Katene, that Hareopa Katene did not have a murderous intent.
The issue
[18] The issue is whether in those circumstances the Crown can pursue the charge
of count 1 against the accused on the basis that the accused are parties to an offence, one element of which is that Hareopa Katene had murderous intent.
[19] That raises the following general issues:
a) In what circumstances can the Crown prove a charge against a party where the principal is not before the Court and is not convicted?
b) What is the effect of an acquittal of the principal?
c) In the circumstances of this case can the Crown proceed against the accused as parties on count 1 given the Crown’s acceptance, at least in relation to Hareopa Katene and Eria Katene, that the principal did not have the necessary mens rea?
Decision
In what circumstances can the Crown prove a charge against a party where the principal is not before the Court and is not convicted?
[20] The starting point is the derivative nature of liability as a party under
ss 66(1)(b)(c) and (d) and, in the factual circumstances of this case, s 66(2).
[21] Section 66 of the Crimes Act does not create an offence. A person cannot be guilty under s 66(1)(b)–(d) as a secondary party unless it is proved that another person actually committed an offence: R v Harrison;[3] R v Paterson.[4]Also, secondary liability under s 66(2) is dependent on proof of an offence committed by one of the parties: R v Nathan.[5]
[3] R v Harrison [1941] NZLR 354.
[4] R v Paterson [1976] 2 NZLR 394.
[5] R v Nathan [1981] 2 NZLR 473.
[22] There are, of course, cases where an accused can be guilty as a party even though the principal is not convicted of the offence. Such cases include where the principal offender has died: R v C;[6] is not able to be identified: R v Reweti;[7] or while identified, has not been located and brought before the Court. There are also cases where for reasons particular to the principal in question the principal cannot at law be guilty of the offence: ss 21(2); 22(2); 23(4), 178(8) and 180(5) of the Crimes Act 1961, but a party can still be guilty. Further, under the former s 169(7)
of the Crimes Act the fact a principal’s liability had been reduced from murder to
manslaughter by reason of provocation did not affect a secondary party’s liability for murder.
[6] R v C HC Auckland T13655, 13 August 2002.
[7] R v Rewiti CA234/94, 16 February 1995.
[23] Where, for whatever reason the principal offender is not before the Court, the focus must be on the evidence and whether the admissible evidence could prove that
a principal offender (even if his or her identity is not known) actually committed the offence. In the present case if the jury accepted the evidence of Alec Tuhoro, they could find that Hareopa Katene had murderous intent when he discharged the firearm
at or towards Alec Tuhoro. To that extent, even though Hareopa Katene is not before the Court, the evidence could support a finding that he, as the principal had murderous intent.
[24] That conclusion however, is only the first consideration. It does not address the general issues of the effect of an acquittal of the only possible principal offender,
or the particular circumstances of the Crown case against the accused in this case.
What is the effect of an acquittal of the principal?
[25] The next issue is, what is the effect of the acceptance of the guilty plea to the lesser charge, and the Crown’s decision not to pursue count 1 against the principal? Although Hareopa Katene has not yet been formally acquitted of count 1, once sentenced on count 2, he will be discharged on count 1, which is deemed to be an acquittal: s 347(4) of the Crimes Act.
[26] In the case of R v Waaka Hammond J considered the effect of the acquittal of
a principal on the charge against the accused as a secondary party. The accused was charged as a party to rape.[8] The charge arose out of an incident when the accused and the principal had taken a very drunk woman from a function. The principal had allegedly raped her while the accused Waaka had assisted or encouraged him. The only evidence against the principal was, however, Waaka’s statement to the police, which was not admissible against the principal. The principal was discharged. In those circumstances Hammond J felt driven to conclude that Waaka could not be
[8] R v Waaka HC Hamilton T010076, 9 July 2001
.
convicted of the offence of being a party to the offending by the principal given the discharge of the principal. He discharged Mr Waaka accordingly. Hammond J noted that the effect of an discharge under s 347(4) was an acquittal. Hammond J concluded that where the only possible principal perpetrator had been acquitted, there was no offence of the character alleged. The accused could not be guilty as a secondary party in the absence of a principal in the first degree. Hammond J found:
[31] Whatever has been able to be achieved in cases where the accused is really the “procurer” and the somewhat strained doctrine of agency is pressed into service, or those cases where particular statutory provisions have been able to be given a particular interpretation, in the absence of a fundamental alteration to our statutory provisions this case must be governed by the principle to which I have referred viz., that there cannot be a secondary party to a crime in the absence of a principal in the first degree. That principle cannot be met in this case because the only possible perpetrator has been “acquitted”. There are therefore no offences of the character alleged.
[32] It is tempting to argue- though Mr Wilson did not – that all that an acquittal means under s347 is “not proven” But that too would be to impermissibly strain the plain Parliamentary language of s347.
[33] It follows therefore, that Mr Bain’s application is well founded. The accused will be discharged under s347 of the Crimes Act 1961 on counts 2 and 3.
[27] Waaka’s statement to the police could have provided evidence of the commission of the offence by the principal, thereby providing a basis for Waaka to
be guilty as a party to the principal’s actions even though the statement would not have been admissible at the trial of the principal himself. The significant feature in Waaka’s case was, however, that because the only possible principal had been acquitted the consequence was that at law, there was no offence for Waaka to be a party to.
[28] The particularly important features of Waaka were:
a) there was only one possible principal who had been identified;
b) the principal had been discharged and thereby acquitted;
c) the accused Waaka was charged as a secondary party, not under
s 66(1)(a).
[29] Wild J distinguished Waaka in the case of Fielding v Police[9]on the basis that
in Fielding the evidence did not enable the Crown to identify a principal offender. All accused were charged as parties under s 66(1)(a). It was not a case where the only possible perpetrator had been acquitted.
[9] Fielding v Police [2008] DCR 23 (HC).
[30] Mr Pilditch submitted that a subsequent acquittal of a principal did not necessarily lead to a discharge of a party. He referred to the case of R v Rewiti.[10]
Rewiti was charged as a party to an aggravated robbery. The Crown case was that the aggravated robbery had been carried out by two others. Rewiti was the driver of the getaway car. At trial only one of the other accused appeared. The jury found Rewiti guilty but were unable to agree on the other accused’s guilt. The other accused and the co-accused then went to a later trial. Both were acquitted. As the Court observed, that seemed to indicate the jury were not satisfied with the evidence identifying the other accused as the robbers. Mr Rewiti then stood convicted for helping unidentified principals in an aggravated robbery. Despite the acquittal of the co-accused the Court of Appeal dismissed Rewiti’s appeal against conviction. The Court noted Mr Rewiti’s conviction did not depend on the identity of the others named in the count. The Court took the view that there had been a robbery and the accused was a party to it. What was not established was the identity of the principals. That is subtley different to the facts of the present case where it is accepted the principal can only be Hareopa Katene.
[10] R v Rewiti CA234/94, 16 February 1995
[31] There are, however, other examples of cases where the acquittal of a principal party has not necessarily led to the acquittal of a secondary party. In
R v Wahrlich[11] Wahrlich and Z were charged causing grievous bodily harm to four
[11] R v Wahrlich [1976] 2 NZLR 9 (CA).
victims. They were charged as parties to the actions of each other’s assaults under s
66(2) on the basis they were acting pursuant to a common purpose. Wahrlich was found guilty. Z was not tried at the same time as he was only located shortly before trial. At his subsequent trial Z was acquitted by the jury in relation to the assaults on three of the victims and discharged by the trial Judge on the fourth. Wahrlich
appealed against conviction on the basis of inconsistent verdicts. The issue of
whether Wahrlich could be guilty as a party when Z, the other party had been acquitted, was not directly considered. The appeal was dismissed. The case did not engage the principle of unjust inconsistency as the evidence at the two trials was different.
[32] In Sweetman v Industries and Commerce Department the appellant and his employer were charged with offences under the Economic Stabilisation Act 1948.[12]
The magistrate found Sweetman guilty but acquitted his employer. Although he considered that "on the face of it, there was an offence" he accepted certain additional facts established by the employer entitled it, in law, to an acquittal. Mr Sweetman appealed on the ground that as an employee he could not be a lender and could not be convicted as a principal party and further, he could not properly be convicted as an aider and abettor of an offence when the only principal offender had been acquitted. Richmond J dismissed the appeal holding that the evidence supported the finding of guilt against the appellant either as an actual offender or else as an aider and abettor of the offence committed by his employer. In the circumstances the magistrate’s mistaken consideration that certain additional facts relating to the employer entitled it to an acquittal raised no true case of inconsistency as to make it unjust for the conviction of the appellant to stand. As the Court concluded the appellant could have been guilty as a principal, the issue that arises in the present case was not directly relevant.
[12] Sweetman v Industries and Commerce Department [1970] NZLR 139
[33] None of the other cases referred to at Adams on Criminal Law at [66.04] and
[66.08] are directly in point. The result is that Waaka stands as authority for the proposition that where the only possible principal has been identified, charged and acquitted another party cannot be convicted where the basis for his or her liability is as a secondary party to the actions of that principal.
[34] If Hareopa Katene had been formally discharged on count 1, rather than that matter held over to sentencing, then it would have been difficult for the Crown to resist the application of Hammond J’s reasoning to the facts of this case. Although
Mr Pilditch drew the Court’s attention to the recent case of R v Taylor,[13] where the
[13] R v Taylor [2008] NZCA 558; [2009] 1 NZLR 654
Court of Appeal noted there may be a distinction between the legal effects of a discharge before trial, and one ordered during trial that would not affect the principle
in this case. But, unlike Waaka, in the present case the principal has not formally been acquitted as yet .
Can the Crown proceed against the accused as parties on it in the circumstances of this case?
[35] That then leads to the last matter for consideration which is whether, although the principal has not been acquitted, the Crown should be permitted to proceed against the accused as parties on count 1, given the Crown’s acceptance that it would not pursue count 1 against the principal or another co-accused, Eria Katene and given both will be discharged and thus acquitted of count 1 when sentenced on count 2.
[36] The discretion under s 347 to discharge an accused is a broad discretion. It is
not limited to cases where the evidence would not support a conviction: Long v R;[14]
Fox v Attorney-General.[15] A discharge may be appropriate to prevent the risk of an abuse of process. Whether there is a risk of abuse of process will depend on all the circumstances: Fox v Attorney-General.[16] Where the proceedings create the risk of an appearance of unfairness it may be invoked: Amery v Solicitor-General.[17]
[14] Long v R [1995] 2 NZLR 691.
[15] Fox v Attorney-General [2002] 3 NZLR 62 at 72.
[16] At 72.
[17] Amery v Solicitor-General [1987] 2 NZLR 292.
[37] While in the present case Hareopa Katene has not yet been acquitted of count
1, he will be discharged and thus acquitted on sentence. The Crown have, by accepting his plea to the lesser charge and not pursuing count 1 accepted, at least in relation to both him and Eria Katene, that he did not have murderous intent.
[38] The result is, that in the circumstances of this case, the remaining accused are
at risk of being convicted of a more serious crime than the principal offender. That
is a consequence that reasonable and informed members of the public may be concerned about. It is of note that it appears to have been accepted by the Court of
Appeal that a secondary party cannot properly be convicted of murder if the principal party is guilty of manslaughter: R v Hartley;[18] R v Lewis.[19]
[18] R v Hartley [1978] 2 NZLR 199 (CA).
[19] R v Lewis [1975] 1 NZLR 222 (CA).
[39] In R v Hartley members of a motorcycle gang had made a retaliatory raid on
a house believed to be occupied by members of a rival gang. One young man was killed by a shotgun fired by Hartley. Hartley was charged with murder. Eleven others were charged under s 66(2) of the Crimes Act with being parties to that offence. Hartley and eight of them were convicted of manslaughter.
[40] In the course of an appeal by a number of them against the conviction for manslaughter Woodhouse J, delivering the decision of the Court of Appeal said:[20]
[20] At 203
At the outset it should be mentioned that in dealing with the first count and after referring to the possible alternative verdicts of murder or manslaughter, the Judge directed the jury by reference to s 66(2) of the Crimes Act that no one of the accused could be found guilty of a greater or a lesser crime than the principal offender Hartley: that if the jury found Hartley to be guilty of murder then they could not find the others, or any of them, guilty of manslaughter; "it must be murder or nothing" the Judge indicated. And similarly if the verdict in respect of Hartley was manslaughter. The point was not debated during the appeal but it should be said that such a direction may be open to question. ... Obviously an accessory could not be guilty of a greater crime than that committed by the principal offender. But if, in such a case as this, murder were proved against the principal offender a jury might still find that although a probable known consequence of the common purpose had included culpable homicide there was no anticipation of a killing done with murderous intent. In those circumstances it is likely that the accessory could properly be convicted of manslaughter.
Emphasis added.
[41] Further, if this case had proceeded to trial with Hareopa Katene and the jury had found him not guilty of attempted murder, then verdicts finding the accused guilty as party to his attempted murder of Alec Tuhoro could not have been sustained. The Court recognises a principle of unjust inconsistency where verdicts are truly inconsistent because at the same time, and on the same evidence, (by contrast with the case of Wahrlich discussed above) a secondary party was convicted of the offence but the principal was not. In Sweetman[21] Richmond J put it thus:
[21] At 148.
The question, generally, is discussed in Glanville Williams on Criminal Law,
2nd ed. 407-408. The learned author takes the view that if the only person who could be the principal offender is acquitted on "the question of
substance" and there appears to be no other principal in the first degree, the
general rule is that another cannot properly be convicted of aiding an offence which is not proved to have taken place. The exact basis of this suggested rule is not discussed by the learned author but I think it must really be found
in the notion of unjust inconsistency. It seems to have been regarded in that way by the Privy Council in the case of Surujpaul v. The Queen (1958) 42
Crim. Ap. R. 266; [1958] 3 All ER 300. In that case their Lordships came to the conclusion that the evidence as to the commission of the actual offence was no stronger against the appellant than it was against four others who had
been jointly charged and acquitted. In these circumstances the conviction of the accused as an accessory before the fact could not stand. The basis of the
appeal appears to have been that "The appellant contended that these verdicts were contradictory and inconsistent and, accordingly, his conviction should be quashed" (ibid., 268, 301).
... If the tribunal of fact, on evidence which is similar as against both accused, finds as a matter of fact against one accused that the evidence does not establish the commission of the offence charged then it is obviously unjust that it should at the same time convict the other accused of aiding in or abetting the commission of that offence. ...
[42] By analogy, in my judgment the principle applies to the situation facing the three remaining accused. It would be unjust to leave them at risk, however slight, of being convicted as parties to an offence when the principal offender is in no danger
of conviction because the Crown has elected not to pursue him. There can be no suggestion, in the circumstances of this case, that the evidence against the present accused would be any different to the evidence against the principal. There is, in my judgment, an unjust inconsistency in proceeding against the accused on the basis that the principal had an intention to murder when the Crown have chosen not to maintain that allegation against the principal offender (and another secondary party).
[43] If the pleas had occurred earlier and the matter had been raised prior to trial, a stay in relation to count 1 would have been appropriate. Given the stage the proceedings have reached, with the accused being in charge of the jury, a discharge was the only remedy. For those reasons the accused were discharged.
Venning J
Addendum
[44] After indicating to counsel that the three accused were to be discharged with reasons to follow, Mr Pilditch asked that I refer the discharge for the opinion of the Court of Appeal as a question of law.
[45] I agree that is appropriate. The question of law for the Court of Appeal is whether, in the circumstances of this case, I was right to discharge the three accused
for the reasons given at paras [35] – [43] above.
Venning J