The Queen v Jason Morris Meads (CA 514/99)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 514/99
CA 525/99

THE QUEEN

JASON MORRIS MEADS (CA 514/99)
STEPHEN JAMES SMITH (CA 525/99)

Hearing:	23 March 2000
Coram:	Richardson P Ellis J Goddard J
Appearances:	B Davidson for the Appellant Meads I M Antunovic for the Appellant Smith K G Stone for the Crown
Judgment:	20 April 2000

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

The appellants were found guilty of the murder of a 14 year old youth in a dead-end alley off Abel Tasman Street in Wellington, in May 1999. Both now appeal their convictions.
The charges were jointly laid pursuant to ss 167(a) and (b) and ss 168(1)(a) and (2)(j) Crimes Act 1961. During the course of trial however the focus narrowed to s 167(b) and was determined on that basis.

Grounds of Appeal

Three main grounds of appeal were advanced. The first two arose from the trial Judge’s summing up and were common to both appellants. The third ground related to Jason Meads only. It concerned outbursts from the public gallery by members of the Smith family whilst Stephen Smith was giving evidence and which were said to have prejudiced Jason Meads’ trial.

The Facts

The narrative of events leading to the deceased’s death was not greatly in dispute. It was as follows.
The deceased, who was tall and somewhat older in appearance than his 14 years, had spent the evening in downtown Wellington socialising with friends. During the evening he had consumed alcohol, cannabis and datura plant. About 3.30am he set off for home on foot, in an apparently happy mood and accompanied part of the way by a female friend. He and the friend parted company on the corner of Vivian and Cuba Streets at about 4.00am. At about 4.16am a police officer on mobile duty saw the deceased lying on the road in Vivian Street, opposite the Shell Service Station. As the officer observed him, the deceased sat up momentarily, looked around and lay back down on the road. The officer stopped his vehicle, got out and helped the deceased onto the pavement. After a brief conversation with the officer, the deceased walked off and the officer departed to attend another incident. The officer described the deceased as heavily intoxicated at the time, hesitant in manner but not at all aggressive.
The appellants, who were sitting in Jason Meads car at the Shell Service Station, observed this encounter between the deceased and the police officer. After the officer had departed, they pulled over beside the deceased, spoke to him and helped him into their car. They then drove to Inverlochy Place off Abel Tasman Street, where all three got out of the car. Both appellants then assaulted the deceased, inflicting a number of kicks and punches to his head and body. Both then got back into the car and departed the scene. Minutes later, two pedestrians found the deceased in Inverlochy Place. He was on his knees in intense distress, thrashing about, fighting for breath and making gurgling sounds. At 4.39am an ambulance was called. The deceased was admitted to the intensive care unit of Wellington Hospital in perilous condition and died the following morning.
After leaving Inverlochy Place the appellants drove to an escort agency in nearby Kensington Street, arriving at 4.28am. After staying there a short time they returned to Jason Meads’ flat in Kilbirnie. There they were later visited by two girls from the escort agency. Whilst at the flat, and in the presence of two young men staying at the flat, both appellants made incriminating statements. The following day, after hearing newscasts about the deceased’s death and the ensuing homicide investigation, Jason Meads burnt the Doc Marten boots and jeans he had been wearing at the time of the assault.Two days later, both appellants voluntarily attended at police stations with their lawyers and made written statements.

The Defence Case at Trial

From the commencement of the trial, the defence conceded that the appellants had caused the injuries that ultimately led to the deceased’s death, thereby accepting they were guilty of an indirect killing - but without murderous intent.
Both appellants gave evidence at trial and acknowledged causing injuries to the deceased: Jason Meads admitted kicking him 2-3 times in the head and Stephen Smith admitted kicking him 3-4 times in the head. Both contended, however, that they never intended to kill the deceased. They said they had given no conscious thought to the possibility of causing fatal injury to him and assaulted him only over a very short period of time. Smith alleged that his actions were only in response to initial aggression by the deceased and Meads alleged that his involvement arose as a result of Smith first being attacked by the deceased. Both gave evidence of being affected by alcohol at the time - and in the case of Meads, by cannabis also.
The account given by each appellant at trial varied in some aspects from their earlier statements to the Police. In their statements to the Police both had tended to blame the other. In particular, Stephen Smith, whilst admitting he had kicked the deceased, put the blame for the majority of the deceased’s injuries squarely on Jason Meads. At trial, however, he admitted to approximately equal responsibility for the assault but said the deceased had initiated the aggression. Both gave an explanation for having gone to Inverlochy Place, a dead-end alley, saying it was to smoke cannabis with the deceased. Their evidence was that the deceased had agreed to this course. Both denied robbing the deceased or having any motivation to rob him.
On the crucial issues of intent and causation, the defence focused on two aspects. The first was the movements of the deceased after the appellants left him, the position in which he was found shortly after by the two pedestrians, and his observed actions when found by the pedestrians. The other aspect was the cause of death as determined by the pathologist, Dr Thomson. In relation to these issues, the deceased, when observed by the two pedestrians, was seen to fall forward twice in a distressed condition (once heavily) before they left him to summon an ambulance. Dr Thomson under cross-examination, accepted that a heavy fall occasioning a blow to the head could possibly have resulted in the fatal injury to the deceased.
Because of the importance of these issues to the defence and the criticisms levelled at the trial Judge’s summing up in relation to them, it is helpful to examine the relevant evidence, prior to assessing the summing up against the criticisms made.

The Position of the Deceased Following the Assault and His Observed Distress

Luminol testing at the scene established that the deceased had moved about 10 metres from where he was assaulted to where he last came to rest. On this basis the defence closed to the jury on the possibility that at least one of the fatal blows could have occurred when the deceased fell and after the appellants had departed the scene. At the very least, such a heavy fall could have resulted in a head injury that contributed to death, even if not fatal in itself. The defence contended the evidence left open that reasonable possibility.
The eyewitness evidence relating to the movements of the deceased, following the assault, came from Stephen Smith and from the two pedestrians. It established the following.
In his statement to the Police, Stephen Smith said:
Q: At the time you left Mr Whittington, what was his condition?
A: He was just laying there.
Q: Was he moving?
A: Yeah, he was.
Q: In what way?
A: Just moving, you know and …
Q: Was he saying anything?
A: No.
Q: Was he breathing?
A: Yeah, he was moving. (Gestures with arms)
At trial Stephen Smith said the deceased half got to his feet after being kicked in the head by both appellants. His last observation of the deceased, as he and Jason Meads drove off, was of him “half standing, bent over, walking, wobbling – on his feet – but hunched over”.
One of the pedestrians who found the deceased minutes later said that he “was on his knees, shuffling around, jerking and in a lot of distress”.
The second pedestrian said that the deceased was “on his knees, and there was an air of intense distress – he was not standing” but as they approached he made:
An attempt to stand up but fell back down again. He was kneeling, most of the time, thrashing round on his knees. His arms were just spinning flailing almost thrashing out like someone was there, he was trying to protect himself, that is the impression I got.
The witness further said:
As we got close the deceased fell back – not onto his face. He went forward onto his hands onto the road. He tried to stand up but couldn’t and fell heavily down onto his hands again.
More specifically, in re-examination, the witness elaborated thus:
His legs were never straight, never got to his full height, probably halfway there, hard to describe without demonstrating, I think he got on both feet, legs still bent, to maybe halfway there, one leg buckled again, fell down, I imagine very painful on the knees and tailbone, his hand smashed down as well onto the gravel. …No I never saw his head touch the ground, except when he was lying back later on…

The Pathology

The evidence giving rise to the defence contention that the deceased may have suffered fatal injury as the result of a single blow not inflicted by one of the appellants came from Dr Thomson.
In terms of external injuries to the deceased, Dr Thomson said he found a significant number of bruises, particularly on the face and head. Internal examination revealed extreme swelling of the brain with associated haemorrhage and changes consistent with diffuse brain swelling following brain injury. Cause of death was determined as due to brain swelling which Dr Thomson believed to be the result of multiple blows to the deceased’s head.
In addition, Dr Thomson found bruising and damage to the deceased’s small intestine, which had caused the intestine to perforate. Dr Thomson said this injury, if left untreated, could well have resulted in death on its own and was likely to have been caused by a heavy blow to the soft abdominal wall, compressing the intestine against the backbone.
Dr Thomson’s opinion about the number and degree of blows required to bring about the fatal brain swelling found in the deceased was as follows:
…to bring about the sort of brain swelling described here, would it require one blow or more?… Again, that’s difficult to answer, one blow could easily have produced that sort of injury, but given the number of injuries present here it would be quite impossible for me to say that any particular blow was more important or less important than any other, and indeed the sum of all the blows may have been more important than any individual blow. ….to produce the degree of brain swelling and the microscopic changes we saw, there must have been a reasonable amount of force inflicted on the brain, conversely there was no actual skull fracture so I believe the blows were moderate to heavy in their intensity. Kicking could bring about the kind of injury I saw, the marks on the cheek and forehead was sort of pattern I would associate with imprint of sole of shoe or boot. There were several places where faint areas of patterning were present but most notable were areas over right eyebrow, left cheekbone and up on left forehead.
Can you say anything about number of blows inflicted in this case?… I think it was likely there were at least 6 to 8, but its very hard to be sure when blows are superimposed.
Could there have been more than that?… Yes.
Would there be more than just 1 or 2?… Yes. Bruising of scalp alone there were clearly 5 blows to the top part of the head, ignoring the blows that injured the lips and nose and the cheek.
Under cross-examination on behalf of Stephen Smith, Dr Thomson said:
U were asked about the head injury, if kicking could bring about those injuries and obviously you agreed, particularly in relation to pattern you see on injury to forehead and cheek?… Yes and to areas within the scalp.
Could a heavy fall on to the head also bring about the sorts of injury you saw?… Certainly a fall could, a heavy fall would produce a single injury more likely rather than the multiple injury we have here.
In combination, so kicks, but possibility also falling down heavily on one occasion and striking his head?… Yes, I can’t rule that out.

The Evidence Relevant to Intent

Evidence of intent relevant to reckless disregard pursuant to s 167(b) Crimes Act 1961, came from the following sources.
First, the fact that the assault took place in a dead-end alleyway to which the appellants had transported the deceased.
Second, the appellants own admissions of joint assault on the deceased, who was heavily intoxicated at the time and therefore vulnerable.
Third, Dr Thomson’s evidence about the degree of force required to produce the fatal brain injury suffered by the deceased and the force necessary to cause the perforation of his small intestine.
Fourth, the scientific evidence identifying the deceased’s blood on the accelerator peddle of Jason Meads car and on the left leg of Stephen Smith jeans. This evidence established that the deceased must have been bleeding before the assault ended and prior to the deceased being seen to fall forward onto his hands or face. In addition, there was evidence that the appellants were conscious of this fact. This came from Stephen Smith, who said, in evidence, that when they arrived at the escort agency in Kensington Street, Jason Meads remarked that he had blood on his boots. Stephen Smith responded, “Oh, I haven’t”. He said Meads then found a tissue and wiped his boots.
Fifth, the evidence of the two pedestrians as to the state in which they found the deceased and the similar evidence of the ambulance drivers.
Sixth, the evidence of what each appellant said to the Police and at trial about his respective state of mind at the time of the assault. In his statement to the Police Jason Meads said:
Can you give me any explanation as to why you did assault him?
No.
Did you yourself feel threatened by this guy?
No.
If that is the case why didn’t you just let it go before the assault started when he got out of the car?
Steve just started hitting him, so I did too.
Under cross examination at trial about his intent during the assault, Jason Meads said:
Did you intend to kill him? Absolutely not.
Did it even cross your mind what you were doing might result in his death? It didn’t, I have received beatings myself of a much larger scale and haven’t sustained the injuries, when we left he was still OK, waving his arms round, I honestly thought he would stagger through the alley and make his way home, that he wasn’t severely injured.
In his statement to the Police, Stephen Smith described Jason Meads pulling the deceased out of the car, tussling with him and then “kicking the shit out of him” on the ground. Stephen Smith said he then went over and “kicked the guy twice in the stomach”. He said Jason Meads then continued to punch and stomp on the deceased, who “didn’t appear to be able to get out of the way”. When asked by the interviewing officer why he hadn’t stopped Jason Meads from kicking and stomping on the deceased, Stephen Smith said:
I just freaked out. Yeah I just froze.
When asked how many times he kicked the deceased he said:
I remember very clearly kicking him in the stomach twice, and in the upper body three to four times.
Do you know, can you say where in the upper body? His face and head.
How many times do you say you kicked in his direction in upper body? Three to four times.
And in respect of his intentions, said:
Why did you kick out at him, are you able to say? Because I was annoyed he had grabbed me.
Do you know what was going on in your head at the time you were kicking out at him? I can’t say. I don’t think anything was going through my head at the time.
At the time all this happened did you have any thought about harming Jeff Whittington? Not at all. It just happened so quickly, I had no intention of hurting him.
At the time that you were kicking out at Jeff Whittington did it, the thought of doing him any serious harm, occur to you? No
Under cross-examination at trial when asked about his intent during the assault, Stephen Smith was asked:
He got up after you kicked him in the head? Half got up.
Wasn’t any threat then was he? When?
After you kicked him in the head? No. I don’t think he was no.
That’s why you kicked him in the head to make sure he couldn’t move? No. I had no idea why I kicked him in the head. I just did.
Just went ahead not caring? I wasn’t even thinking, not a matter of not caring of course I care.
How can you care if you kicked [him] in [the] head and stomach? Wasn’t particularly aiming to kick in head or stomach, just kicking.
Who kicked him most? Couldn’t say, both of us just as much as each other, from what I remember.
Just joint exercise? Wouldn’t call it exercise, but just say just as much as each other.
You weren’t freaking out to see Jason go berserk? I was freaking out about what was happening but it happened so quick and we left.
Seventh, the evidence of what the appellants said and did following their attack on the deceased. Neither of them appear to have shown any concern for the plight of the deceased but simply left him alone and gravely injured in the dark alleyway. The further evidence that, at Jason Meads’ suggestion, they went immediately to a nearby escort agency and spent time there, gives rise to the reasonable inference of attempting to establish an alibi in full appreciation of the seriousness of what they had done. When later asked by the Police why he did not call for help for the deceased afterwards, Stephen Smith said that he could have rung for an ambulance from his sister’s place, but fell asleep on the couch.
Eighth, the evidence that the appellants were intoxicated at the time and in Jason Meads’ case “stoned” as well.
Ninth, the evidence of the remarks both appellants made about the attack only an hour or so later. This evidence came from the two young men who were staying at Jason Meads’ flat. They spoke of a number of incriminating statements made by the appellants in their presence, indicative of the appellants’ attitude towards the deceased at the time of their joint assault on him. The first young man said:
I remember waking up to Jason pouring alcohol on me. …Jason was pouring wine and beer on me, throwing empty beer cans on me.
Was Stephen still there too?… Yes.
What time was that?… I wouldn’t have a clue.
Did you hear Jason and Stephen talking?… Yeah. Something about a kid in town, some faggot – their words, a faggot, he had girls make up on, nails made up, he told them to get fucked and they said they had never seen anyone bleed out of places he bled out of. That was in their words. They were laughing about it.
It’s not a very funny thing to end someones life. Was there any talk about how he was when they left?… They said they had never see a person bleed out of the places he bled out of.
Under cross-examination, on behalf of Stephen Smith, he further said:
You have said to this Court you heard them refer to Smith and Meads talking about what they had done?… Yes. I remember that because that’s when he was standing over and I was asking him about it.
I put it to you - Smith - at no stage did you ever hear him talking about doing anything to a faggot?… He was laughing with Jason about it.
You agree he didn’t say anything?… No I don’t. They are not innocent in this case, they killed a person.
Just asking about what you saw [and what] you heard at the house, I put it to you, Stephen Smith never said anything about a faggot, agree with that or not?… Not sure, just trying to remember.
You are having a bit of difficulty remembering all that way back now?… No, they both had a part in it, that’s enough. They both booted the shit out of him.
…Stephen Smith was not part of any conversation at the house about what happened?… No I can remember the two of them laughing saying stupid faggot he shouldn't have told us to get fucked, they both said they had never seen anybody bleed out of the places he bled out of, they said he bled out of his ears and eyes, they said he was fucked basically, they just left him for dead. The blood was pouring out all over the place?

The other young man said this in evidence:
When you first woke up remember something happening?… I heard Jason and Stephen talking with the two girls at the table, about beating someone, said he was bleeding from places they had never seen someone bleed from before.
What was their mood?… Joking about it.

The First Ground of Appeal

The first ground of appeal relates to the overall effect of the Judge’s summing up and an alleged failure by him to adequately and properly instruct the jury on the need to identify which of the injuries was causative of death, on the possible sequence of such injuries, and on the requirement to prove murderous intent on the part of the appellants at the time fatal injury was inflicted.
The summing up, which was concise and clearly stated, began with the following introduction:
The injuries which led to the death of Jeff Whittington were caused by the accused – each accused admits that.
The issues in the trial are firstly, what occurred in the critical eight minutes and secondly, what was the intent, the state of mind of each accused at the time he injured Jeff Whittington. The first issue arises because of the difference between what each accused told the Police on the 11 May and the evidence each gave yesterday. The state of mind of each accused is an issue because each has pleaded not guilty to murder and the Crown must prove a murderous intent.
The major thrust of criticism was directed at “10 important points” listed by the Judge at the end of his summing up. Counsel submitted that the directions contained in these points grossly favoured the Crown and effectively amounted to a direction to convict of murder. Further and compounding this, that a failure to include directions on crucial defence issues in those “10 important points”, suggested inferentially that there were no important defence points.
The 10 important points were introduced by the Judge as follows:
In considering all the evidence you might consider the following points are particularly important. There are 10 of them...

Points 1 and 2

In points 1 and 2, the Judge referred to the deceased’s generally peaceful demeanour and his non-aggressive condition immediately prior to the assault by the appellants in the following manner:
In short, the only evidence to suggest Whittington was or became aggressive is the accused’s evidence – NOT IN THEIR STATEMENTS TO THE POLICE – I say again not in their statements to the Police – but in this trial yesterday.
This reference was the subject of complaint to the Judge after the summing up had concluded. In response to the complaint, the Judge brought the jury back and gave a further direction in which he acknowledged that Jason Meads had told the Police, somewhat equivocally, that the deceased “may have thrown a punch to start with”. Notwithstanding this further direction, the appellants’ submission was that the situation had not been adequately rectified because the Judge had also omitted to mention that a bystander in Vivian Street had described the deceased as “fending the police officer off and not really co-operating with the officer, when being helped”. However, that alleged omission by the Judge was not the subject of a request for further direction and there is no substance to it anway. The bystander’s evidence was of defensive action on the part of the deceased, not aggression. Therefore, the only unequivocal evidence to suggest that the deceased initiated the aggression was the evidence of the appellants at trial, as the Judge correctly directed.

Point 3

In point 3, the Judge referred to the appellants’ explanation for their movements that evening and queried whether their stated reason for taking a circuitous route and ending up in Inverlochy Place was credible. This aspect was material for the jury to consider as it directly bore on intent. It was, therefore, appropriate for the Judge to advise the jury that they must consider the appellants’ explanation for their movements. The criticism of this direction has no validity.

Point 4

In point 4, the Judge referred to the evidence of one of the pedestrians who found the deceased and, in particular, to his evidence that the distressed nature of the deceased’s actions conveyed the impression that “he was trying to protect himself”. Counsel for the appellants criticised this reference as redundant because of the acknowledgement already made by the appellants of committing an assault. That criticism overlooks the relevant inferences available from the evidence, however. Although the appellants had admitted to an assault, the evidence of the deceased’s actions following the assault reflects on the nature of the assault and, consequently, on the appellants’ intentions during that assault. Thus it bears circumstantially on their claim that the assault was only in response to initiated aggression. As it had relevance to intent, the Judge’s reference to the evidence was not unnecessary nor prejudicial

Point 5

In point 5, the Judge referred to the evidence of the effect of datura consumed by the deceased earlier in the evening. Counsel for the appellants submitted that the Judge unfairly emphasised only those parts of the evidence helpful to the Crown’s case in giving that direction. That is not correct, as the Judge also included a summary of evidence given by a physician called on behalf of Stephen Smith. The physician opined that datura consumption could lead to aggression and violence, although conceded this would not necessarily be the case. The Judge also referred to the other evidence given, relevant to the effect of the drug, so the direction cannot be accurately criticised as one-sided or not evenly balanced.

Point 6

In point 6, the Judge referred to Dr Thomson’s evidence relating to cause of death, which he concluded was brain swelling due to multiple blows to the deceased’s head. The Judge reminded the jury that Dr Thomson had found that the sum of all the blows may have been more important than any one individual blow – and that it was impossible for him to say any individual blow was more or less important than any other. The Judge illustrated this by quoting the following passage from Dr Thomson’s evidence:
I think it likely there were at least 6 to 8 blows.
But it’s very hard to be sure when blows are superimposed.
Counsel submitted this direction was unfair and unbalanced and totally omitted the favourable concessions made by Dr Thomson; namely, that the deceased could have fallen heavily causing himself an injury which may have contributed to death and the possibility that only one blow caused the fatal injury. These concessions, it was submitted, ruled out any certainty as to requisite intent at the time the fatal blow was struck. Counsel apparently raised their concern about this direction with the Judge at the conclusion of his summing up, but he declined to direct the jury further on the matter.
The Judge could reasonably have been expected to balance his directions on this point by incorporating express reference to the defence theory of the case. Whilst justification, in terms of self defence, was not in issue at trial and the evidential picture, viewed as a whole, overwhelmingly supported the Crown’s case, it was nevertheless important to emphasise those matters upon which the defence relied. Defence counsel had been assiduous in teasing out such evidence as there was to support the defence theory of the case and that evidence was important on this point. Against that criticism, however, Dr Thomson’s concession that a heavy fall by the deceased could have brought about the sort of injury sustained, required consideration in the context of all of the evidence. That evidence included the appellants’ admissions on oath of having kicked the deceased numerous times in the head and body as he lay on the ground. This self-confessed evidence of numerous kicks and punches, consistent in force and type with the number and severity of injuries found by Dr Thomson, had to be weighed against an essentially theoretical concession, and in the absence of evidence of any actual fall of the type postulated by the defence.
Counsel sought to rely on the decision in R v Nathan (1981) 2 NZLR 473 in support. Nathan was a case primarily concerned with the law relating to parties. The important distinguishing factor in Nathan, however, was that the fatal injury probably resulted from a minor blow rather than one requiring even reasonable force. The Crown was therefore unable to prove, by reference to the identifiable fatal injury, that the person who inflicted it knew it was likely to cause death and had recklessly disregarded that consequence.
The facts in the present case are quite different. In this case, the fatal brain swelling was most likely the consequence of numerous superimposed blows of moderate to heavy intensity, consistent with numerous kicks to the head. Further, the small intestine perforation was of itself a life threatening injury if not treated and resulted from a heavy blow to the abdominal wall. It was not suggested that the this injury could have been the result of a mere fall after the appellants departed the scene.
Viewed in context of the total evidential picture, the theoretical concession gained by the defence, even when coupled with the eyewitness evidence of the deceased falling forward onto his hands, is not of sufficient cogency to raise even a reasonable doubt that any second event occurred which so overwhelmed the appellants’ assault as to relegate the injuries they inflicted to mere history: R v Ramsay [1967] NZLR 1005.
In conclusion, notwithstanding the Judge’s omission to refer to the defence theory on this point, we are satisfied that the overwhelming nature of the evidence as a whole renders the omission inconsequential.

Point 7

In point 7, the Judge raised the issue of the appellant’ conduct following the assault. The criticism levelled was that none of the passages of evidence referred to under this point advanced the Crown’s case. On the contrary, it was said that the points raised unnecessarily highlighted extremely prejudicial aspects of the Crown’s case: for instance, the fact that the appellants went to an escort agency immediately after the assault, the fact they continued to drink and socialise following the assault, and the evidence of the two young men who were at Meads address. A further criticism levelled was that the Judge also failed to point to the effect of defence counsel’s cross-examination of those young men.
To the extent that the appellants’ general conduct following the assault reflects on their state of mind, it has relevance to their likely intention during the assault. Consequently, despite its obviously prejudicial effect, the evidence highlighted by the Judge was extremely probative of a central issue in the case. The further criticism of the Judge’s failure to refer to cross-examination of the two young men at Jason Meads’ flat has little, if any, substance. Whilst the cross-examination of one of the witnesses reflected moderately disfavourably on the clarity of his recollection of the appellants’ conduct, it was of marginal assistance to the defence. The other young man was not cross-examined by the defence.

Point 8

In point 8, the Judge referred to Jason Meads’ action in burning his boots and jeans shortly after discovering there was a homicide investigation underway. Counsel for the appellants submitted that this point was of no particular importance and should not have been raised by the Judge as important. Meads had already admitted kicking the deceased and had been at the scene where blood could have been put onto his boots. That submission overlooks the significance of the blood getting onto the appellants clothing before they left the scene and of the inference that raises in relation to the severity of the assault. Whilst Jason Meads’ actions in burning the boots does not constitute evidence of a murderous intent of itself, it has more evidential value than the defence would allow.

Points 9 and 10

In points 9 and 10, the Judge referred to the variations between the appellants’ evidence at trial and what each had said to the Police when interviewed only days after the event. Counsel for the appellants acknowledged that the variations referred to by the Judge were significant, but argued that it was a further example of undue emphasis being given to the Crown’s case. However, in light of counsel’s acceptance of the evidence as significant, that criticism lacks real substance.

Conclusion

Although the Judge failed to expressly refer to the defence theory of the case in his directions on point 6, that omission did not unbalance the summing up to a degree that would warrant interference. The case for the defence had already been adequately summarised by the Judge prior to his list of “10 important points” and when read as a whole the summing up presents a fair synopsis of the trial as it unfolded. Indeed, Mr Antunovic conceded that the summing up was fair and balanced with the exception of the 10 important points, once an inadequate direction on the effect of intoxication had been rectified.

The Second Ground of Appeal

The second ground of appeal related to the Judge’s direction on the requisite elements of s 167(b) Crimes Act 1961 and in particular his directions on reckless disregard, which were as follows:
In relation to each accused, to establish murder the Crown must satisfy you beyond reasonable doubt that the accused had a murderous intent at the time the injuries were inflicted on Jeff Whittington. The Crown case is that the accused:
(a)Meant to cause the death of Jeff Whittington, or:
(b)Meant to cause Jeff Whittington bodily injury that the accused knew was likely to cause Jeff Whittington death, and was reckless whether Jeff Whittington died or not.
Reck is an old fashioned word which means a care or concern. So reckless means careless. In other words, this second murderous intent involves the Crown proving three things:
·     That the accused meant to cause Jeff Whittington bodily injury,
·     He knew that injury was likely to cause Jeff Whittington’s death,
·     And didn’t care whether or not it caused Jeff Whittington’s death.
Later, when summarising the Crown’s case, the Judge said:
The Crown says this was murder. It was an incident of wanton and gratuitous violence and the injuries were such that the accused either intended to kill Jeff Whittington or inflict really serious injuries, in particular kicking his head, knowing those injuries might cause Whittington’s death and not caring whether it did or not.
After the jury had been in retirement for several hours, the Judge gave a further direction on intent under s 167(b) in response to the following question from the jury:
Please provide the jury in writing with the three definitions of murderous intent or correct our understanding below. (1)Meant to cause death. (2) Meant to cause bodily injury. Knew that likely to cause death and reckless that he would die or not. Three conditions: (i) Accused meant bodily injury; (ii) Knew likely to cause death; (iii) Did not care if it caused death.
The further direction given to the jury, after discussion between the Judge and counsel, was that their understanding of the definition of murderous intent under s 167(b) was “accurate and correct”.
Counsel for the appellants nevertheles submitted that the Judge’s directions on recklessness could have left the jury with the impression that a lack of care alone was sufficient to make out the charge. Rather than referring to a lack of care, it was submitted that the Judge should have instructed the jury that the concept of recklessness in s 167(b) involved proof that the appellants were aware of the risk involved and made a conscious decision to act despite knowledge of the consequences. Counsel cited the decision in R v Harney [1987] 2 NZLR at 576 in support.
Harney made it clear that “reckless” in s 167(b) means there must be a conscious taking of the risk of causing death and that a failure to give thought to serious risk cannot be classified as recklessness for the purposes of s 167(b). The words that were under scrutiny in Harney, however, differ from the direction given in this trial and related to the first element in s167(b). The discussion in Harney is nevertheless instructive and reviews the law relating to the interpretation to be given to “recklessly” depending upon its statutory context. Delivering the judgment of the Court, Cooke P said:
Subject to the requirements of particular contexts, however, we incline to the view that “recklessly” has usually been understood in New Zealand to have the meaning given in pre-Caldwell textbooks such as 11 Halsbury’s Laws of England (4^th ed) para 14, and Adams on Criminal Law (2^nd ed) para 1430. That is to say, foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.
And at a further passage:
There is no doubt that the first limb of s 167(b) requires proof of the accused’s actual appreciation of the risk at the material time, so it seems most unlikely that the legislature would have meant the second limb to cover mere inadvertence.
The essential theme running through the cases reviewed in Harney is that the s 167(b) definition of murder is concerned with “a particular kind of deliberate risk-taking”: see R v Dixon [1979] 1 NZLR 641, 647. As Cooke P stated, the added words “reckless disregard” point to the contrast between paragraphs (a) and (b) of
s 167; the one being aimed at deliberate killing, the other at deliberately taking the risk of killing. “Reckless” in s 167(b) therefore means “that there must be a conscious taking of the risk of causing death”.
In the present case, the Judge clearly emphasised the necessity for the Crown to prove that the appellants consciously appreciated the risk they were taking and went ahead and took that risk notwithstanding. The criticism has arisen because of the Judge’s use of the words “care” or “concern” and the risk that this imported a concept of mere carelessness into the legal definition. We agree that the Judge’s redefining of “reckless” as meaning “careless” was not apt, albeit etymologically correct. The importation of a dictionary definition, although accurate in itself, was not helpful in the criminal context. The issue is whether it introduced a shade of meaning to the section which amounted to a misdirection.

Conclusion

On analysis, we are satisfied that the jury correctly understood the legal requirements of s 167(b). Although it was unwise to substitute the word “care” for the word “reckless” when directing on the second element in s 167(b), that did not negate nor dilute the effect of the correct direction given on the first element. That direction, read in context, clearly conveyed to the jury that criminal recklessness in
s 167(b) requires a conscious appreciation of the risk of death and a conscious taking of the appreciated risk. If there were any doubts about the matter, however, these were dispelled by the jury’s question. It is clear from the wording of that question, that the jury understood that proof of reckless disregard and not just mere carelessness was required. Thus they were not misled. Furthermore, defence counsel concurred at the time that the jury’s understanding was correct. We are satisfied, therefore, that no misdirection occurred in relation to s 167(b).

The Third Ground of Appeal

Whilst Stephen Smith was giving evidence at trial, members of his family in the public gallery called out the following:
Take the smile off your face Jason.
Tell the truth.
Hope you’re proud of yourself Jason. You’re (referring to Stephen Smith) under intimidation from Jason.
At the next adjournment, one member of the Smith family physically confronted Meads by the dock as the Judge and jury were leaving the Court. Whether that confrontation was noticed by any jury member is not known.

Mr Davison submitted that these outbursts must have given the jury the clear impression that Stephen Smith had changed his evidence in Court from what he had originally told to the Police - out of intimidation or fear of Jason Meads. He said this could only have severely damaged Meads’ credibility in the eyes of the jury and was consequentially highly prejudicial to his case. As the outbursts had occurred after Jason Meads’ case had closed, he was unable to answer the allegations. An application for mistrial was made and refused by the Judge.
The matter was dealt with by the Judge at the commencement of his summing up, by a careful address to the jury on the need to put the remarks from the public gallery, if they had heard them, out of their minds and to reach verdicts only on the evidence. This special direction was given in addition to the usual directions relating to feelings of sympathy or prejudice.

Conclusion

The remarks from the public gallery cannot have had any impact on the outcome of the trial. Interruptions of this nature are not uncommon in jury trials and simply require to be dealt with as the trial Judge sees fit. The Judge in this case dealt with the matter appropriately in giving a specific direction to the jury to ignore the remarks, if indeed they had heard them.

Judgment

In respect of the first two grounds of appeal, we are satisfied that the trial Judge’s summing up was overall balanced and that no incorrect or inadequate directions were given on any crucial issue or in relation to any legal element. Such deficiencies as there were, were rectified by further directions.
In respect of the third ground of appeal, we do not find any palpable prejudice to Jason Meads’ case from the remarks uttered from the public gallery.
The appeals must fail and are dismissed.

Solicitors:
Crown Law Office, Wellington, for the Crown
Greig Davidson Gallagher, Wellington, for the Appellant Meads
I M Antunovic, Mana, for the Appellant Smith

[2000] NZCA 287

20 April 2000