Tere v R

Case [2013] NZCA 282 4 July 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA462/2012
CA496/2012
CA527/2012
[2013] NZCA 282

BETWEEN	TERENCE MARIO TERE CHRISTOPHER JACOB JUNIOR SHADROCK MAKA UHIA TUIKOLOVATU Appellants
AND	THE QUEEN Respondent

Hearing:	20 June 2013
Court:	Randerson, Courtney and Dobson JJ
Counsel:	L O Smith for Appellant Tere C B Wilkinson-Smith for Appellant Shadrock M B Meyrick for Appellant Tuikolovatu J M Jelas for Respondent in all appeals
Judgment:	4 July 2013 at 2:00pm

JUDGMENT OF THE COURT

All three appeals against conviction are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction
Background facts
The trial

The Crown case
The defence case
The summing-up

The first ground of appeal (misdirection on degrees of murder)

Appellants’ submissions
Crown’s submissions in response
Discussion
Conclusions on first ground of appeal

The second ground of appeal (lack of a tripartite direction)

The appellants’ submissions
The summing-up
Conclusions on second ground of appeal

The appeal by Mr Tuikolovatu

Conclusion on Mr Tuikolovatu’s separate appeal ground

Result

[1]
[5]
[10]
[10]
[13]
[17]
[24]
[24]
[33]
[37]
[49]
[59]
[59]
[64]
[67]
[70]
[92]
[99]

Introduction

These three appeals against conviction arise from an incident in a South Auckland carpark on 16 June 2008 which resulted in the death of the victim Ms Wang. The principal offender was the appellant Mr Shadrock who snatched Ms Wang’s handbag. While Mr Shadrock was attempting to leave the carpark in a stolen vehicle, Ms Wang was struck by the vehicle causing injuries from which she later died. Mr Shadrock was convicted of murder. The appellants Mr Tere and Mr Tuikolovatu were alleged to have been accessories after the fact to murder.
The appellants were convicted after their first trial but their convictions were later set aside and a retrial ordered.[1] The appellants were again convicted by a jury at their retrial before Brewer J. Mr Shadrock was later sentenced to life imprisonment with a minimum period of imprisonment of 12 years.[2] Mr Tuikolovatu was sentenced to 18 months imprisonment. No further penalty was imposed on Mr Tere since he had already served the sentence of home detention imposed after the first trial. Two other men, Messrs Lemanu and Tekanawa, were jointly charged with Mr Tere as accessories after the fact. They were both convicted but have not appealed since the retrial.
[1]Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573 and Tuikolovatu v R [2012] NZCA 235.
[2]R v Shadrock [2012] NZHC 1775.
The appellants have all appealed against conviction. The principal grounds for Mr Shadrock’s appeal are:
(a)The Judge misdirected the jury by referring to the concept of degrees of murder which prevails in the United States.
(b)The Judge wrongly omitted to give a tripartite direction.
Mr Tere and Mr Tuikolovatu support Mr Shadrock’s appeal since his conviction for murder is an essential element in their convictions as accessories. In addition, Mr Tuikolovatu submits that his conviction was unreasonable or not supported by the evidence.

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 Tere v R

Details

AGLC: Tere v R [2013] NZCA 282
Case: [2013] NZCA 282
Decision Date: 4 July 2013 at 2:00pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, three appellants—Terence Mario Tere, Christopher Jacob Junior Shadrock, and Maka Uhia Tuikolovatu—appealed against their convictions. Shadrock was convicted of murder for the death of Ms Wang, while Tere and Tuikolovatu were convicted as accessories after the fact. The principal issues on appeal were whether the trial judge misdirected the jury on the concept of degrees of murder and whether the trial judge failed to give a tripartite direction regarding the accused's out-of-court statements. The court found that while the judge's reference to degrees of murder in the United States was unnecessary, it did not result in a miscarriage of justice. Additionally, the court concluded that no tripartite direction was required in this case as the judge's directions on the onus of proof and the status of the accused's police statement were sufficient. The appeals against conviction by all three appellants were dismissed.

Orders