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 justice.

[6]       The application in question was made at the end of the evidence, a previous application before the trial started having also been declined (we return to this below at [7]).  The application was concerned with the effect of statements to the police by seven co-accused which were produced as evidence at trial against their respective authors, and which asserted that Mr Smith had committed the very kind of attack on the two victims that the Crown alleged.  Those statements were inadmissible against Mr Smith under the common law rule that defendants’ statements were not admissible against co-accused, now confirmed by s 27(1) of the Evidence Act 2006 (not in force at the time of the trial).  The submission made to the trial Judge and renewed before us was that the cumulative effect was highly prejudicial; the jury could not have separated the admissible evidence from the inadmissible evidence, which was overwhelming, and the problem could not be cured by directions from the trial Judge. 

Previous application for severance and appeal

[7]       Prior to the trial an application for severance was heard before Courtney J.  She dismissed the application on the grounds that the issue was straightforward and that there would be a forceful and explicit direction by the trial Judge.

[8] Mr Smith appealed that decision to this Court which dismissed the appeal: [2007] NZCA 26. This Court stated:

[10] If the possibility of editing is put on one side, the case is perhaps on the margin, especially given the practical problems which the appellant will have in impeaching Vea’s evidence [Mr Vea had given evidence at the depositions hearing that he had been an eye-witness of the offending alleged against Mr Smith].  On the other hand, an indirect corroboration effect must be a reasonably common incident of joint enterprise trials where one accused in an out of court statement has implicated the other.  As well, some (indeed we suspect all) of the statements could be edited to remove the material which implicates the appellant (eg by replacing his name with an “X”).  Further, there is a real sense in which the application for severance is premature.  Some of the accused may plead guilty.  The statement of an accused who pleads guilty will necessarily be taken out of play.  Some of the accused who have made statements implicating the appellant may well give evidence and, if they do, that evidence will be relevant to the appellant.  The possibility that such evidence may be given highlights the desirability of there being a single trial in this case.

[11]  Accordingly, we do not propose to interfere with the decision of the Judge.  We are, however of the view that editing may well be appropriate to minimise the risk of prejudice to the appellant.  As well, during the trial it will be open to the appellant to renew the application for severance, an application which would be best addressed at the end of the evidence.  If the Judge is then of the view that the prejudice to the appellant associated with statements of his co-accused’s warrants severance it could be granted then, although we emphasise that severance in cases of this sort is exceptional.

Having regard to the state of the evidence then before this Court the case was considered to be “on the margin”. 

[9]       As contemplated by this Court, a number of significant developments occurred following its judgment:

(a)Guilty pleas were entered by three accused and therefore their statements to the Police were not admitted in evidence at trial. 

(b)In addition to the evidence of Mr Vea, the Crown led from two other witnesses evidence tending to establish Mr Smith’s alleged offending.  Further, a photograph of Mr Smith’s arm with a JCB tattoo was produced to show an association with that group. 

(c)The parts of the out of court statements by co-accused referring to Mr Smith which had little or no probative value on other aspects of the case were edited. 

(d)The co-accused Mr Naea elected to give evidence and said that Mr Smith was a JCB and was present at the Pad on the night. 

[10]     Those changes resulted in an increase in the admissible evidence against Mr Smith and a decrease in inadmissible evidence compared with the position presented to this Court pre-trial.

Legal principles relating to severance

[11]     The principles were stated in R v Fenton CA223/00 14 September 2000: 

[25] What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime.  The reasons are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the court system generally.  This public interest will ordinarily outweigh the interests of an individual accused in not having inadmissible evidence before the jury.  That is the usual problem in a joint trial from the accused’s perspective.  When given proper directions juries are to be regarded as capable in most cases of understanding and applying the distinction between admissible and inadmissible evidence.

[26]  There may, however, be occasions when the weight of the inadmissible evidence, against that of the admissible, makes it unfair to an accused, notwithstanding the trial Judge’s directions, to expect the jury to act only on the evidence which is admissible.  Similarly, there may be cases in which the difficulties in isolating the admissible from the inadmissible make it unfair to expect the jury to undertake that exercise.  Those are the usual circumstances in which severance may be justified.  Ultimately the question is whether the applicant for severance can demonstrate some feature of the case which clearly outweighs the ordinary approach and the basis upon which it rests, and which therefore mandates severance in the overall interests of justice.  After verdict the same general considerations apply but, in order to succeed, the appellant must show that the joint trial has resulted in a miscarriage of justice.

The trial Judge’s ruling and directions

[12]     In her ruling on the severance application at the end of the evidence Winkelmann J correctly directed herself according to the principles stated in Fenton at [25]. She referred to the earlier judgments of Courtney J and this Court and the fact that the admissible evidence had increased and the inadmissible evidence had decreased since they were delivered. She considered that the weight of inadmissible evidence was not such as to jeopardise a fair trial for Mr Smith. She determined that repeated directions to the jury as to the limited use to which the statements could be put, made at the time the statements were produced, together with directions in summing up which referred to a carefully prepared typed document or “questionnaire”, were sufficient to meet any unfair prejudice and prevent illegitimate use by the jury of inadmissible evidence.

[13]     The Judge’s directions throughout the trial were not challenged.  Nor was her oral summing up, nor the questionnaire which supplemented it, each containing written directions regarding the matters the jury was to take into account.  In relation to Mr Smith the questionnaire included an accurate statement that in reaching their verdict the jury must not consider the out of court statements made to the police by accused other than Mr Smith and that these were not evidence for or against him.

The issue

[14]     The difficulty with severance decisions was discussed in the recent House of Lords judgment in R v Hayter [2005] 1 WLR 605. Lord Bingham reiterated that subject to a Judge’s discretion to order separate trials in the interests of justice, there are powerful public reasons why joint defendants should be tried jointly: at [6]. The prime basis for the practice is the perception that a just outcome is more likely to be achieved in a joint trial than in separate trials. The topic is intimately connected with public confidence in jury trials. Subject to a Judge’s discretion to order otherwise, joint trials of those involved in a joint criminal case are in the public interest and are the norm. That approach is seen in such judgments as R v Jorgensen and Gillies [1964] NZLR 709 (CA). Decisions the other way include R v Webb and Thompson [1953] NZLR 595 (SC); R v Brown (1987) 3 CRNZ 132 (CA) and R v Anderson CA 119/99 1 June 1999. 

[15]     To summarise, the overarching issue is whether the trial was unfair so that there was a miscarriage of justice.  In assessing whether the trial was fair we must bear in mind that the admission of some inadmissible evidence will not necessarily make a trial unfair, and that joint trials in cases of joint criminal enterprises are the norm.  To assess whether the trial was fair it is necessary to appraise the nature of the admissible and inadmissible evidence before the jury. 

Submissions

[16]     Mr Wilkinson-Smith, who did not appear for Mr Smith at trial (he appeared for one of the co-accused), submitted that the case fell squarely within [26] of Fenton and that Mr Smith’s right to a fair trial must outweigh the public interest in having a single hearing of the charges relating to a single episode.  He began his challenge to the Judge’s severance ruling with a passage in her judgment stating that there was a public interest in a joint trial because, were Mr Smith tried separately, his counsel would have the opportunity to elicit from police witnesses that Mr Naea had confessed to the attacks (at [11]).  He submitted that R v Collier CA131/06 20 September 2006 decided that evidence of such a confession would have been inadmissible.  The Crown accepted that submission, as do we.  It is confirmed by s 27(1) of the Evidence Act which, although not in force at the time of Mr Smith’s trial, is a pointer towards the correctness in terms of public policy of the decision in Collier. 

[17]     Counsel then referred to this Court’s decision of 27 February 2007 which raised the possibility of removing references to the appellant in the co-accused’s statements.  In the event, that course proved impracticable in relation to a number of the co-accused’s statements.  While one statement by Mr McCarthy is immaterial because it did no more than place Mr Smith at the Pad prior to the trip to Norrie Smith Avenue, which Mr Smith does not deny, six others placed him at the scene and several recounted his hitting a victim with a baseball bat. 

Discussion

Admissible evidence

[18]     It was common ground that Mr Naea, a JCB, believed his father, Julio Naea (Lio) had been attacked by PDBs on the night of Saturday 22 October 2005 and that Mr Naea expressed a desire to retaliate.  Mr Smith was among a group of JCBs present at the Pad from where, in the early hours of Sunday morning, a convoy four to six cars, carrying about 15 people departed for Dosina Drive, where Lio lived, to retaliate against the PDBs.  Several members of the company gave evidence which was admissible against Mr Smith.  We summarise the important parts below.  

(i)       Mr Vea

[19]     Mr Vea was not a member of either of the gangs involved.  He followed the convoy to Norrie Smith Ave, off which Dosina Drive runs, where he stayed in his car.  He said he saw a person fall to the ground, but didn’t know why.  He then saw Mr Smith strike the person on the head with a baseball bat.  He said he saw the bat going up and down on the victim’s head.

[20]     In cross-examination by counsel for Mr Smith, Mr Vea agreed that he was stoned that night, and that he only saw the back of the person with the baseball bat.  Counsel suggested Mr Vea did not know who that person was, and didn’t think it was Mr Smith until he had read about an allegation in a statement by another accused given to him by the police.  Counsel elicited that Mr Vea was originally accused but the charges against him were dropped in exchange for him agreeing to give evidence.  Mr Vea accepted that when he gave his statement to the police he had lied in denying that he had entered the Pad.  It was put to him that he was also lying about Mr Smith’s involvement and his having the bat with him that night or that he was so stoned he was mistaken.

(ii)      Mr Toohill

[21]     Mr Toohill said that he was at Mr Salatielu’s home when he received a text message from Mr Viliamu telling him to go to Norrie Smith Ave to visit Lio (who was  Mr Toohill’s uncle).  Mr Toohill asked Mr Salatielu to get some weapons for protection and Mr Salatielu found three wooden table legs.  After visiting Lio, the pair drove to the Pad, collecting Mr Viliamu on the way.  At the Pad, Mr Naea and Mr McCarthy joined the trio in the car.  Mr Naea had a metal baseball bat.  When the cars set out from the Pad, Mr Toohill’s was in the lead.

[22]     At the corner of Penion Drive and Norrie Smith Ave, Mr Naea got out and told the others that they had to go down Norrie Smith Ave.  He went in that direction and the car followed.  Mr Toohill stopped in Norrie Smith Ave, where Mr McCarthy and Mr Viliamu got out.  Mr Toohill and Mr Salatielu remained in the car.  Mr Toohill described seeing two incidents where boys were on the ground being hit with baseball bats and kicked by six or seven people who wore black tee shirts with a JCB patch.  He saw someone hit a person on the ground with a hammer using big swings.  Mr Naea, Mr Viliamu and Mr McCarthy ran off down a pedestrian way.  Mr Toohill drove round to the other end of the walkway where he picked them up.

[23]     Mr Toohill drove the group back to the Pad.  He gave evidence that they were were “pretty happy” about what had happened.  Mr Toohill said he heard Mr Smith say he wanted to hit a guy until his head came off.  He repeated this assertion in re-examination. 

[24]     In cross-examination, counsel for Mr Smith put to Mr Toohill a statement that he had made to police three days after the incident.  In the statement Mr Toohill denied that anyone had talked about the incident on the way back to the Pad, and he denied knowing anyone called Levi.  Counsel put it to him that he had told the truth to the police and was now lying in evidence because he had cut a deal with the police.  Mr Toohill accepted that he had made a deal to get the charges reduced, and part of the deal was that he would come to Court to give evidence, but he said he was telling the truth in Court.  He explained that he initially lied to the police because he was scared: “I knew I was in trouble and I knew that if I said things about some people that I would get in more trouble.”

(iii)     Mr Salatielu

[25]     Mr Salatielu confirmed that he took three table legs from his family’s garage for protection, although he said that at that stage he thought they were going to a birthday party.  He said that it was his idea to take the table legs, and not Mr Toohill’s.  He said that when Mr Naea and Mr McCarthy got into the car at the Pad, Mr Naea was carrying a baseball bat.  At Norrie Smith Ave, Mr Salatielu stayed in the car when the other passengers got out, Mr Naea still carrying the baseball bat and Mr Viliamu with a table leg. 

[26]     One of the young men who was fleeing the JCBs tripped on the kerb in front of the car Mr Salatielu was sitting in.  Mr Salatielu described five or six boys attacking the victim on the ground, with a baseball bat, a hammer and a long piece of wood. He said he recognised Mr Smith whom he had seen around the school and whom he identified in court.  He described the hitting as shocking; he could hear the bat’s echo.  Mr Salatielu said he saw Mr Smith hit the victim on the head with the metal bat several times, in a full swing.  The victim rolled into a ball and tried to protect his head with his hands.  When he was hit on the head his hands dropped.  Mr Salatielu said he saw blood coming from the victim’s head; he looked as if he was dead.  A call went out to leave and the other attackers stopped but Mr Smith continued the attack.  He then moved over to the second victim, who was on the ground, and did the same thing to him.  Finally two boys pulled him away.  Mr Salatielu said that when Mr Naea got back into the car he still had the bat and Mr Viliamu had a piece of wood.  He said that back at the Pad he heard Mr Smith say “I got him good … I was crazy”. 

[27]     Mr Salatielu accepted that he had been charged with causing grievous bodily harm with intent to cause grievous bodily harm.  Two weeks earlier he had pleaded guilty to lesser charges of causing grievous bodily harm and intent to injure following an agreement to give evidence.  Counsel for Mr Smith cross-examined him on two video interviews with the police.  In the initial interview Mr Salatielu said “all the guys had their bandannas on”, suggesting that they could not be identified.  Challenged on the point he said “all had their bandannas on except for one, Mr Smith”.  It was put to him that between the first and second video interviews he and Mr Toohill decided that Mr Smith could be the fall guy and all the blame would be put on him.  It was suggested that part of the deal about the charges being reduced was to try to avoid going to jail and so he had given a false story about involvement with Mr Smith.  He denied that.  Re-examined, he said the reason he had not said anything about Mr Smith in the first interview was that he was scared of the JCBs.

(iv)      Mr Naea

[28]     Mr Naea gave evidence in his own defence. He said that he had discovered that his father had been “jumped” by the PDBs and he wanted to “get them out”.  He told Mr Toohill to come to the Pad to pick him up some time after midnight.  Mr Naea had said to the police “we rounded up the boys and we all headed off”.   Four or five carloads of JCBs, about 15 people, came along to help out, to back him up.  Mr Naea stated that Mr Smith was one of those who went from the Pad.

[29]     At Penion Drive Mr Naea said he got out of the car, holding a baseball bat for his own protection, and ran towards a party he noticed at a house on Dosina Drive.  He asked some questions about his father and when some of the partygoers ran to their cars to drive off he hit one of the cars with his bat and then threw the bat at another car.  He then ran back up to Norrie Smith Ave, intending to get back in a car, but when he saw two people running off down a walkway he chased them through to Dawson Road.

[30]     Mr Naea’s evidence in Court was different to what he had said in a statement to police on 24 October in which he described attacking one of the victims.  He said the inconsistency arose because at the time of the statement he was depressed and upset having just heard that his father had been killed; he felt responsible so he wanted to take the blame.  He did not mention Mr Smith’s actions at the scene in either statement.

The statements by co-accused who did not give evidence

[31]     Several of the co-accused did not give evidence, but their statements were available to the jury as evidence in relation to the authors of those statements.  Seven of them mentioned Mr Smith.

(i)       Mr J Feterika

[32]      In his statement Mr J Feterika said that he had dragged Mr Smith away when he was “hooking this guy with his fist who was on the ground”.  He said the victim had already been beaten up when Mr Smith went for him, and that is why he dragged Mr Smith away.  He said Mr Smith was “hitting him body shots” and that he had “lost it”.  He said Mr Smith “hit him more than two or three times”.

(ii)      Mr Siauane

[33]     Mr Siauane made two statements to police.  The first interview contained this passage:

Q. … George and Levi caught two guys and gave them a beating with some weapons.  George had an iron bar or a baseball bat and Levi had a hammer.  Is that right?

A.Not a hammer, no.

Q.Nah what did Levi have?

A.He had a bat.

[34]     Mr Siauane agreed that Mr Smith was “going pretty hard” and he was hitting the victim “everywhere”.

[35]     The second statement was read by Detective Constable Clark at trial.  A large portion of that statement consisted of a description of Mr Smith and Mr Naea hitting the two victims about the head with a baseball bat.  Mr Siauane said that Mr Smith “just lost it, he laid into them.”  Prior to the statement being read out, the Judge gave a direction that the statement was not evidence against any other accused.

(iii)     Mr Bates

[36]     Mr Bates said at one point that he didn’t see Mr Smith at the scene, but later said he did see Mr Smith and that he was “a hundred percent sure” that Mr Smith did not have a weapon.

(iv)      Mr V Feterika

[37]     Mr V Feterika said he saw Mr Smith hit one of the victims three times on the body with a bat, he said it was not with big full swings, but “just like a person hitting someone with a bat.”

(v)       Mr Sukanaveita

[38]     Mr Sukanaveita said he saw Mr Smith standing beside a person on the ground and swinging a baseball bat at him. Mr Sukanaveita jumped out of the car and ran over to Mr Smith.  He “hooked” him, and dragged him to the car.  He said he told Mr Smith he had gone too far.

(vi)      Mr Tonga

[39]     Mr Tonga referred to Mr Smith by the nickname, “Lost One”.  He said he was in the same car with Mr Smith.  When they stopped Mr Smith jumped out of the car.  Mr Tonga said he saw Mr Smith smashing the windows of two cars as they drove away and attacking a letterbox with a bat. When another person jumped out of the car to grab Mr Smith, Mr Tonga did so too, and ushered him on to the back seat.

(vii)     Mr McCarthy

[40]     Mr McCarthy confirmed that Mr Smith was at the Pad prior to the trip to Norrie Smith Ave.

Summary

[41]     There was substantial admissible evidence available against Mr Smith.  But four of the seven statements of co-accused provided detailed accounts of alleged conduct by Mr Smith which, if relied upon by the jury, would have tended substantially to sustain the Crown case. Hence the defence submission that admission of the evidence at Mr Smith’s trial risked improper use of the evidence against him and therefore there should have been severance.

[42]     We are satisfied that, in so far as it was in the Judge’s power to give clear directions warning the jury as to their obligation not to use out of court statements against anyone save their maker, her successive directions were exemplary.  There remains the question whether that was sufficient. 

The Australian and Canadian data

[43]     Mr Wilkinson-Smith produced Australian and Canadian data derived from research using mock jurors in simulated jury deliberations.  The Australian paper is Cush and Goodman Delahunty “The Influence of Limiting Instructions on Processing and Judgments of Emotionally Evocative Evidence” (2006) 30 Psychiatry, Psychology and Law 110.  It refers to two specific categories of case: what was described as “gruesome evidence”, and evidence of prior convictions.  The Canadian research, Doob and Kirshenbaum “Some Empirical Evidence on the Effect of s 12 of the Canada Evidence Act Upon an Accused” (1972) 15 Crim LQ 88 and Hans and Doob “Section 12 of the Canada Evidence Act and the Deliberations of Simulated Juries” (1975) 18 Crim LQ 235, relates to previous convictions.  The research tends to establish real risk of miscarriage in both categories of case.

Analysis

[44]     When considering whether the jury could reasonably be expected to disregard the inadmissible evidence it is necessary to identify its character and quality.  In the case of gruesome photographs and criminal convictions the evidence has a categorical quality which is effectively beyond dispute.  Certainly, unpleasant photographs must from time to time be put before the jury when crucial to their understanding of the case.  Trial Judges exercise particular care to treat the evidence clinically, including preparing the jury for the exposure by giving careful preparatory directions.  Convictions also may sometimes be admitted, whether inevitably as crucial to the case or through mishap.  Again, meticulous directions are required.

[45]     In this case the jury’s task was to resolve competing accounts of what has happened.  That is a matter which the jury was well equipped to evaluate in the light of counsel’s challenges and the Judge’s directions.  The evidence requiring consideration was not of the categorical kind which presents intellectual difficulty (such as evidence of bad character said only to go to an issue of credibility), which jurors might well think to entail a distinction without material difference.  Nor is it shocking evidence which might tend to derail the rational intellectual process.

[46]     This is not a case like Webb, Brown or Anderson, where a joint trial was considered inappropriate.  In those cases there was slight prosecution evidence and there was risk of imbalance from the presence of significant inadmissible material.  Here there was substantial admissible evidence against Mr Smith.

[47]     The mainstream cases demonstrate a confidence on the part of appellate Judges, who are likely to have had long trial experience, that juries are able to discharge their oath and to discriminate by excluding evidence of the kind in issue in this case.

[48]     Here the jury were required to analyse a single series of events and to identify what was proved against each of the remaining accused.  They were required to appraise defence contentions that the first hand evidence of the Crown witnesses was flawed in various respects.  That they adopted a discriminating approach is apparent from the verdicts. Mr Naea was acquitted on the count of attempted murder which he alone faced.  On the remaining charges, of causing grievous bodily harm with intent to cause grievous bodily harm, five accused were acquitted altogether.  Only Mr Smith was convicted on both counts.  All of the other accused were convicted only on lesser alternative counts.

Decision: Mr Smith

[49]     Our conclusion overall is that, as events have occurred, the case is no longer on the margin.  As a result of the substantial admissible Crown evidence and the careful directions by the Judge at each relevant stage, the jury was given a task of adjudicating without reference to inadmissible material, which it was well capable of discharging.  The fact of the careful discrimination among the counts evidenced by its verdicts is a further pointer to our conclusion that Mr Smith has not established a miscarriage of justice.  His appeal is dismissed.

Mr Viliamu

[50]     Mr Viliamu was 19 years of age at the time of his offending. He was driven to the scene in Mr Toohill’s car, from which he alighted armed with one of Mr Salatielu’s table legs.  He followed Mr Naea and joined him in smashing car windows and chasing other people who were in the area.  He did not personally assault anyone and was convicted as a party to the offending by others.  In sentencing the Judge found that he foresaw that the attack was a probable consequence of his group’s plan to go to Otara to confront members of the PDBs and that a member or members of the PDBs would suffer very serious harm inflicted by someone who intended to injure them.  Such harm resulted.  Aggravating factors included premeditation, the numbers of assailants and extreme violence, including the use of weapons taken to the scene. As the Judge put it, Mr Viliamu was “one of the mob”.  By participating to the extent he did Mr Viliamu encouraged and thus contributed to what the mob did that night.   Even though he was not a JCB member, he allied himself to the retaliatory raid by the JCBs and became in law a party to their offending.

[51]     The group’s offending fell clearly within band 3 of R v Taueki [2005] 3 NZLR 372 (CA) which sets a range of nine to 14 years for “serious concerted street attack”, defined as:

An episode of street violence where multiple attackers set upon a victim in a premeditated attack, using weapons which they have brought to the scene for the purpose, and where serious and lasting injuries are inflicted on the victim will call for a starting point in the lower to middle range of band 3. … Where the victim is left with injuries which will have an ongoing impact on his or her enjoyment of life, a starting point at the top end of band 3 will be called for … .

(At [41].)

[52]     But the judgment continues at [42]:

The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending. Where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed.

The Crown accepted and we agree that the Judge was right to characterise Mr Vilamu’s individual offending as falling within band 2 (five to ten years).  

[53]     The selection by the Judge of a starting point for Mr Viliamu of three years and ten months was moderate.  She then gave full credit for mitigating factors.  They included the plea of guilty as soon as the indictment was amended during the trial, his expression of remorse (which we note was coupled with an offer of assistance), and his good character. The resulting sentence was two years and two months’ imprisonment.

[54]     Mrs Tuilotolava contended that the sentence was manifestly excessive.  We disagree.  Certainly it is tragic that a young man of the potential of Mr Viliamu should find himself in prison.  He has admirable references, which demonstrate his outstanding quality and potential as a rugby player; his diligence as a worker; his support for his family.  But as the Judge recognised, the conduct in which he engaged makes such a sentence inevitable.

[55]     Mrs Tuilotolava then submitted that the sentence was disproportionate by comparison with that of Mr Toohill and Mr Salietu who received terms of 14 months’ imprisonment and were admitted to home detention and Mr Naea, who had a two year term added to one of five years which he was already serving.

[56]     But the prudent decision of Mr Toohill and Mr Salietu to remain in the car distanced them to a degree from the violence, notwithstanding Mr Toohill’s provision of the transport and Mr Salietu’s of the table legs.

[57]     As the Judge emphasised, Mr Naea’s sentence would have been three years and four months had she not been required by the totality principle to impose no more than the seven year total sentence which resulted.

[58]     In terms of the legal test stated in R v Lawson [1982] 2 NZLR 219 (CA), this is not a case where there is any untoward disparity which cannot justified by actual differences among the positions of the various offenders, let alone one which “is so gross that a justifiable sense of injustice would persist”: at 223 (citing R v Potter [1977] Crim LR 112 (CA)).

Decision: Mr Viliamu

[59]     Mr Viliamu’s appeal is also dismissed.

Solicitors:

Crown Law Office, Wellington