R v T HC Wanganui CRI 2007-083-619

[2009] NZHC 138

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2007-083-619

THE QUEEN

v

T
G

M

Hearing:         13 February 2009 (by telephone)

Counsel:         T C Brewer for Crown

M J Bullock for Goff
R B Crowley for Te Tua
D M Goodlet for Matthews

Judgment:      16 February 2009

JUDGMENT OF SIMON FRANCE J

[1]      In the early hours of 9 March 2007 in Wanganui, a gun was fired from a car window.  The target was a pursuing police vehicle.

[2]      Five people fled from the car.  It is believed they were members of the Black

Power.  The Crown allege the accused were three of the people in the car.  It is not known who fired the shot, or who was the driver.

R V T AND ORS HC WANG CRI 2007-083-619  16 February 2009

[3]      The three accused are charged with discharging a firearm.  A pre-trial ruling by Miller J confirmed that two witnesses can give evidence anonymously, and that the evidence of one of those two was not so discredited as to be inadmissible.   A s347 application premised on the inclusion of that evidence consequently failed.

[4]      In the course of the ruling Miller J observed the difficulties facing the Crown in attaching liability to the accused.   The circumstances of the shooting appeared equally, or at least arguably consistent with a spontaneous act, meaning that the other car  occupants  were  not  necessarily  implicated.     However,  since  no  formal application was before him, he left matters there.

[5]      The trial was due to start today.  As trial Judge I issued a Minute indicating I was initiating a pre-trial s347 hearing.  I asked the Crown to identify the evidence which would either implicate the accused individually, or  establish that all five occupants of the car were parties whoever they were.

[6]      In a prompt and helpful response, Mr Brewer confirmed the Crown would be relying on establishing that all five occupants were parties.  It would then be a case of proving the three particular accused were occupants.

[7]      Liability for all occupants would turn on then being gang members, with joint action being the essence of gang membership.   Supporting inferences were to be drawn from:

a)        the time the car was followed, allowing a strategy to be planned;

b)        the fact that car slowed down to enable shot to occur;

c)        no-one got out of the car at that stage;

d)all five fled in different directions once the car stopped after the gun was fired.

[8]      At Mr Brewer’s suggestion, a phone conference was organised to hear the matter.

Decision

[9]      The Crown can only succeed if it is permissible to infer that all five members in the car agreed in the plan, or encouraged it by their presence.   The latter necessitates an inference that there was an option to disassociate that was not taken.

[10]     The incident was one that arose by chance.   The officer was out driving, decided to follow the car, assessed it to be speeding and therefore sought to pull it over.    The  police  car  followed  for  some  time  with  lights  flashing  before  the offending vehicle slowed to enable the shot.  Any plan had to be concocted from the time the police car put its flashing lights on.

[11]     It seems to me clear that the driver (for slowing down) and the shooter must be guilty.   As for the other three, must they be guilty?   It is possible to identify scenarios that make some or all of them not so –

a)       the driver, wearying of the chase, slowed down of his own motion and whilst doing so, suggested that X, who he knew to be armed, fire the gun.  The other three had no opportunity to offer an opinion;

b)one or more of the other three said not to, because for example, it would bring unnecessary grief on them.  He or they were over-ridden and could not get out of the moving car.

[12]     No doubt there are other scenarios.  None can be excluded just because the occupants are gang members.  A common way of acting does not provide sufficient proof, in the absence of other evidence, that it happened on this occasion.

[13]     In my view, the Crown has insufficient evidence.  Accordingly, there should be a discharge under s 347.  That will be done at the next opportunity.  The fixture is

vacated.

Simon France J

Solicitors:

T C Brewer, Auld Brewer Mazengarb & McEwen, PO Box 738, New Plymouth email:  ti[email protected]

M J Bullock, Barrister, PO Box 11, Wanganui, email:  [email protected]

R B Crowley, Barrister, PO Box 744, Wanganui, email: [email protected]

D M Goodlet, Barrister, PO Box 875, Wanganui