The Queen v Atkins; The Queen v Taylor
[2007] NZCA 103
•29 March 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA44/07
CA96/07
[2007] NZCA 103
THE QUEEN
v
ALBERT TIPU ATKINS
POI COLIN TAYLOR
Court:Glazebrook, O'Regan and Ellen France JJ
Counsel:N J Sainsbury for Appellant Atkins
I M Antunovic for Appellant Taylor
M D Downs for CrownJudgment (On the papers): 29 March 2007 at 10.00am
| JUDGMENT OF THE COURT |
THE APPEALS AGAINST CONVICTION ARE ALLOWED, THE CONVICTIONS QUASHED AND A RETRIAL ORDERED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
Mr Atkins and Mr Taylor were convicted of manslaughter as parties under s 66(1) of the Crimes Act 1961 after a jury trial in Wellington. They appeal against those convictions.
Factual background
Mr Atkins and Mr Taylor were part of a group who attacked members of a rival gang with fists, boots and bottles. In the course of the attack one of the group (since convicted of murder) stabbed the victim with a knife, killing him. There was no evidence at trial that Mr Atkins and Mr Taylor knew that the killer was carrying a knife.
In accordance with the authorities as then understood, the jury was directed that, if they concluded that the perpetrator was guilty of murder, Mr Atkins and Mr Taylor would be guilty of manslaughter if they intended to assist each other (including the killer) in an assault on the victim and participated in the assault for that purpose.
Related appeal allowed
The appeal of one of the co-accused of Mr Atkins and Mr Taylor, was allowed by this Court on 21 March 2007 in R v Aupouri [2007] NZCA 86.
This was on the basis of this Court’s decision in R v Hartley [2007] NZCA 31, where the Court held that, where liability as a party is alleged under s 66(1)(b) ‑ (d), the Crown is required to prove that the alleged party was assisting in offending of the type which actually occurred.
It is accepted by the Crown that the position of Mr Atkins and Mr Taylor cannot be distinguished from that of Mr Aupouri.
Result
As a consequence, the appeals are allowed, the convictions quashed and a retrial ordered.
Solicitors:
Crown Law Office, Wellington
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