R v Smith - [2008] NZCA 266

IN THE COURT OF APPEAL OF NEW ZEALAND
CA522/07
CA530/07
[2008] NZCA 266
THE QUEEN
v
LEVI HEREMAIA SMITH
REYNOLD VILIAMU
Hearing:23 June 2008

Court:Baragwanath, Rodney Hansen and Harrison JJ
Counsel:C B Wilkinson-Smith and L M Wansbrough for Mr Smith

M F Tuilotolava for Mr Viliamu
M A Woolford and K M Patena for Crown

Judgment:1 August 2008 at 2pm

JUDGMENT OF THE COURT

A MR SMITH’S APPEAL AGAINST CONVICTION IS DISMISSED.
B Mr Viliamu’s appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(GIVEN BY BARAGWANATH J)
Table of Contents

Para No

INTRODUCTION  [1]
MR SMITH  [5]
PREVIOUS APPLICATIONS FOR SEVERANCE AND APPEAL[7]
LEGAL PRINCIPLES RELATING TO SEVERANCE  [11]
THE TRIAL JUDGE’S RULING AND DIRECTIONS[12]
The issue[14]
Submissions[16]
Discussion  [18]
Admissible evidence  [18]
(i)        Mr Vea  [19]
(ii)       Mr Toohill  [21]
(iii)      Mr Salatielu  [25]
(iv)      Mr Naea  [28]
The statements by co-accused who did not give evidence  [32]
(i)        Mr J Feterika  [32]
(ii)       Mr Siauane  [33]
(iii)      Mr Bates  [36]
(iv)      Mr V Feterika  [37]
(v)       Mr Sukanaveita  [38]
(vi)      Mr Tonga  [39]
(vii)     Mr McCarthy  [40]
Summary[41]
The Australian and Canadian Data[43]
Analysis[44]
Decision: Mr Smith  [49]
Mr Viliamu  [50]
Decision: Mr Viliamu  [59]

Introduction
[1]       In the early hours of Sunday 23 October 2005 a large group of youths, who were members and associates of the Juvenile Crip Boys (JCBs), drove in convoy from the JCBs’ base, “the Pad”, to Norrie Smith Avenue in Otara. They had the general intention of taking revenge on the Penion Dosina Boys (PDBs) for a supposed attack on the father of one of the JCBs. Several of the group were armed with weapons, including baseball bats, table legs and bottles. On arrival, some members of the group stayed in their cars. Others, including Mr Viliamu who was carrying a table leg, ran around the streets smashing property. Two young men, both of whom were in the path of the attack, sustained life threatening head injuries and spent the following months in rehabilitation. The Crown alleged, and Mr Smith denied, that he was one of several people who attacked the victims and that he used a baseball bat to strike repeated blows to their heads.
[2]       Fourteen young men were indicted to be tried together. Three entered guilty pleas before trial. The appellants are two of the eleven who were tried and convicted.
[3]       Mr Levi Smith was convicted by a High Court jury on two counts of causing grievous bodily harm and was sentenced by Winkelmann J to nine years and nine months’ imprisonment. He appeals against conviction.
[4]       Mr Viliamu pleaded guilty to two counts of causing grievous bodily harm with intent to injure. He was sentenced to two years and two months’ imprisonment. He appeals against sentence.
Mr Smith
[5]       Mr Smith appeals on the ground that a ruling by the learned trial Judge declining an application for severance was plainly wrong and has resulted in a miscarriage of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith

Details

AGLC: R v Smith [2008] NZCA 266
Case: [2008] NZCA 266
Decision Date: 1 August 2008

CaseChat Overview and Summary

In the early hours of 23 October 2005, a group of youths from the Juvenile Crip Boys (JCBs) drove in convoy from their base, "the Pad", to Norrie Smith Avenue in Otara. They intended to take revenge on the Penion Dosina Boys (PDBs) for a supposed attack on the father of one of the JCBs. Several of the group were armed with weapons, including baseball bats, table legs and bottles. Two young men were attacked and sustained life threatening head injuries. Levi Heremaia Smith and Reynold Viliamu were among the group. Smith was convicted by a jury on two counts of causing grievous bodily harm and was sentenced to nine years and nine months’ imprisonment. Viliamu pleaded guilty to two counts of causing grievous bodily harm with intent to injure and was sentenced to two years and two months’ imprisonment. Smith appeals against his conviction on the ground that a ruling by the trial Judge declining an application for severance was plainly wrong and has resulted in a miscarriage of justice. Viliamu appeals against his sentence on the ground that it was manifestly excessive. The court found that the trial Judge's ruling and directions were sufficient to prevent unfair prejudice and the court dismissed Smith's appeal. The court found that the sentence imposed on Viliamu was moderate and dismissed Viliamu's appeal.

Orders