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Rameka v R

Rameka v R

Case [2011] NZCA 75 18 March 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA131/2010
CA133/2010
CA173/2010
CA207/2010
[2011] NZCA 75

BETWEEN RAELEEN MATEWAI NOYLE RAMEKA
JAMIE AHSIN
CLARKE JAMES MCCALLUM
DANIEL CRAIG RIPPON
Appellants

AND THE QUEEN
Respondent

Hearing: 10 November 2010

Court: O'Regan P, Chambers and Arnold JJ

Counsel: D M Goodlet for Appellant Rameka
N J Sainsbury and L A Scott for Appellant Ahsin
C W J Stevenson for Appellant McCallum
G J King for Appellant Rippon
J Pike and J Mildenhall for Respondent

Judgment: 18 March 2011 11.30 am

JUDGMENT OF THE COURT

AExtensions of time to appeal are granted to Ms Ahsin, Mr McCallum and Mr Rippon.
BThe appeals against conviction of all appellants are dismissed.
CThe appeals against sentence of Ms Rameka, Ms Ahsin and Mr Rippon are allowed and in each case the minimum period of imprisonment imposed by the High Court is quashed. In their place we impose the following minimum periods of imprisonment:
·Ms Rameka: ten years
·Ms Ahsin: ten years
·Mr Rippon: 11 years and six months.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No
Introduction  [1]
Issues  [2]
Facts  [4]
Should Ms Brooks’s evidence have been excluded?  [19]
      Breach of practice note  [20]
Prosecutor’s closing address  [36]
Press report  [44]
Directions on party liability  [48]
Withdrawal under s 66(1)  [59]
      Mr Ahsin  [61]
      Mr Rippon  [77]
Mr McCallum as “gateway to conviction” of remaining
appellants  [80]
“Lies” direction  [87]
Unreasonable verdict: Ms Rameka  [90]
      Test to be applied  [91]
      Description of appellant  [94]
      Section 66(1) – discussion  [95]
      Section 66(1) – conclusion  [118]
      Section 66(2) – discussion  [120]
      Section 66(2) – conclusion  [134]
Unreasonable verdict: Ms Ahsin  [137]
      Party under s 66(1)  [138]
      Party under s 66(2)  [139]
      Discussion of the law  [140]
      Knowledge of weapons  [153]
      An act of the type committed?  [157]
Sentence appeals  [159]
      Mr Rippon  [160]
      Ms Ahsin  [165]
      Ms Rameka  [170]
Overall conclusions  [174]

Introduction

The four appellants were convicted of murder after a jury trial in the High Court at Whanganui. The trial Judge, Dobson J, sentenced them to life imprisonment, with minimum periods of imprisonment varying from 10 and a half years to 15 years.[1] They had also been charged with assault and intentional damage. The appellants were discharged from the assault charges under s 347 of the Crimes Act 1961.[2] The jury found Mr McCallum guilty of the intentional damage charge but acquitted the other accused. The appellants now appeal against their convictions and all apart from Mr McCallum also appeal against sentence (in each case, against the length of the minimum period of imprisonment). The notices of appeal for all except Ms Rameka were received by the Court outside the appeal period, but only by a small margin, and we grant extensions of time to appeal.

Issues

[1] R v McCallum HC Wanganui CRI-2008-083-2794, 12 February 2011.

[2]R v McCallum HC Wanganui CRI-2008-083-2794, 8 December 2009 per Dobson J (Pre-trial Ruling).

There are numerous grounds 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 Rameka v R

Details

AGLC: Rameka v R [2011] NZCA 75
Case: [2011] NZCA 75
Decision Date: 18 March 2011

CaseChat Overview and Summary

The appellants were convicted of murder following a jury trial in the High Court at Whanganui and sentenced to life imprisonment. The appellants were also charged with assault and intentional damage. The appellants were discharged from the assault charges under s 347 of the Crimes Act 1961. The jury found Mr McCallum guilty of the intentional damage charge but acquitted the other accused. The appellants now appeal against their convictions and all apart from Mr McCallum also appeal against sentence. The appeals against conviction are dismissed and the appeals against sentence are allowed. The minimum period of imprisonment imposed by the High Court is quashed and replaced with a new minimum period of imprisonment for Ms Rameka, Ms Ahsin and Mr Rippon.

The court first considers whether Ms Brooks's evidence ought to have been excluded. Ms Brooks was a hostile witness and the appellants submitted that her evidence was unreliable and inconsistent with eye witness accounts. The court found that the allegations made by Ms Brooks do not engage cl 1 of the practice note and that the reliability of the evidence was rightly left to the jury to assess. The court then considers whether statements improperly made by the prosecutor in her closing address caused a miscarriage of justice to occur. The court found that the prosecutor's actions were unfortunate and improper, however, the judge dealt with the turn of events and the court was satisfied that no miscarriage arose. The court next considers whether a report of a hearing in chambers in the Wanganui Chronicle led to a miscarriage of justice. The court found that the judge dealt properly with the issues raised by the press report and that no miscarriage of justice arose. The court then considers whether the directions given to the jury by the Judge on party liability were in error. The court found that the directions relating to secondary parties were generic and the court is satisfied that the question trail was clear in its terms. The court also considers whether the jury ought to have been directed on the possibility that Ms Ahsin withdrew her assistance to Mr McCallum in terms of s 66(1) of the Crimes Act before the killing occurred. The court found that the mere exhortation to return to the car did not satisfy the third requirement in R v Pink for an unequivocal withdrawal of the assistance already given and that the conduct of Ms Ahsin that was said to amount to withdrawal could not be said to involve her taking all reasonable steps to undo her previous actions. The court concludes that Ms Ahsin did not discharge the evidentiary burden of placing in issue the possibility of withdrawal. The court also considers whether the jury ought to have been directed on the possibility that Mr Rippon withdrew his assistance to Mr McCallum in terms of s 66(1) of the Crimes Act before the killing occurred. The court found that Ms Dethierry's description of a "dust-up" was too frail a reed to provide an evidential basis that Mr Rippon withdrew from aiding and abetting the attack and that the evidence provided no proper foundation for the proposition that Mr Rippon satisfied the R v Pink test for unequivocal withdrawal from his conduct in assisting with the attack. The court then considers whether a direction similar to a lies direction ought to have been given in relation to the revelations said to have been made to Ms Brooks by some of the appellants. The court found that there was no suggestion that what had been said to Ms Brooks was itself untrue and no reason why the Judge had to speculate about that or speculate about why the appellants might have made untrue statements to Ms Brooks in the circumstances she described. The court then considers whether the verdict against Ms Rameka was unreasonable. The court found that there was evidence of Ms Rameka's presence in the car earlier in the day and at the Challenge service station that supported the eyewitness accounts at Cross Street. The court found that there was sufficient evidence for the jury to conclude that she was present when the attack happened. The court concludes that the verdict against Ms Rameka was not unreasonable. The court finally considers whether the verdict against Ms Ahsin was unreasonable. The court found that the verdict against Ms Ahsin was not unreasonable.

Orders