The Queen v Kori John Loper
[2000] NZCA 56
•22 May 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 502/99 |
THE QUEEN
V
KORI JOHN LOPER
| Hearing: | 22 May 2000 |
| Coram: | Thomas J Anderson J Panckhurst J |
| Appearances: | B J A Daniell-Smith for the Appellant |
| J C Pike for the Crown | |
| Judgment: | 22 May 2000 |
| JUDGMENT OF THE COURT DELIVERED BY THOMAS J |
The appellant, Mr Loper, was convicted of murder for his part in the killing of a Mr Abrams in Nelson in January 1999. He has appealed against his conviction on the grounds that the trial judge misdirected the jury on the law relating to parties.
At around 10pm on the evening of 30 January 1999, Mr Loper went to a party in Nelson. One of the people present at that party was Mr Oliver, the co-accused. He had consumed a quantity of alcohol and was intoxicated. He began talking about going and “bashing” Mr Abrams, who had previously been convicted for sexually molesting Mr Oliver’s half-brother. Mr Abrams also lived in Nelson.
Sometime between 10 and 11 pm a group of seven people, including Mr Loper and Mr Oliver, drove towards the house occupied by Mr Abrams. The car belonged to Mr Loper but was driven by Mr Oliver. The group parked some distance away and set off on foot. Mr Loper was carrying a wheel brace and Mr Oliver was carrying an iron bar.
Mr Oliver entered the house through an open window at the front. Mr Loper claims he first went round to the back of the house to urinate and then, about one minute later, entered the house through the same window. Once inside, he walked towards the kitchen and then went into the bedroom. Mr Oliver had gone directly to Mr Abrams’ bedroom. He attacked Mr Abrams with the iron bar, hitting him around the head, chest and knees. Mr Loper entered the bedroom. At some point, he chased and tried to silence Mr Abrams’ dog which was in the bedroom barking loudly.
It appears that Mr Abrams dragged himself from the bedroom to the toilet and possibly back to the bedroom again, then back to the toilet, where he died. His body was discovered on 8 February 1999.
At trial the defence case was that Mr Loper entered the house with Mr Oliver, but that it was Mr Oliver who assaulted Mr Abrams. It was argued that he was alive when Mr Loper and Mr Oliver left the house, and that he was subsequently murdered by other unknown persons up to four or five days later. This version of events was understandably rejected by the jury. It was clearly implausible.
Mr Daniell-Smith, who appeared for Mr Loper, submitted that the jury was wrongly instructed on the basic elements as to parties under s 66(1) of the Crimes Act 1961. That part of the summing up which is relevant reads as follows:
The Crown alleges the two accused acted together throughout the assault, and that each is a party to the assault or beating. The allegation is that both were armed and both hit Abrams, but that even if Loper did not hit him, he helped and encouraged Oliver to hit him. The law is that everyone is a party to and guilty of an offence who either actually commits it. Further, a person is guilty of an offence who does an act for the purpose of aiding or abetting another person in the commission of the offence. In more modern language, that is does something for the purpose of helping or encouraging the other person. The usual examples are the lookout or the getaway driver in a robbery. Although that person doesn’t actually go in and hold up the bank, that person is just as guilty of the robbery as the person or persons who go in with the gun. That is a common example. So that is what the law is directing itself to.
On the other hand, merely standing by as an onlooker is not enough. In this case Nathan Bell and Racquel Thomas did a bit more than just stand by – but their example shows you by way of contrast what the prosecution alleges against each accused, and the accused Loper in particular. The prosecution evidence is that Loper armed himself with a bar, went inside into the bedroom, tried to silence the dog, stood over the bed (if you accept the evidence of this) and the Crown alleges that this alone amounted to assistance and encouragement. As I have said, if you find he did something for the purpose of helping or encouraging Oliver, then he is a party to what Oliver did. This part of the case I suggest should not give you much trouble, but you must turn your minds to it and make your decision.
The Judge also responded to a question from the jury as to the definition of a party in these terms:
The Crown alleges that the two accused acted together throughout the assault and that each was a party to the assault or beating. The allegation is that both were armed and both hit Abrams, but that even if Loper did not hit him, he helped and encouraged Oliver to hit him. The law is that everyone is a party to and guilty of an offence who either actually commits it, or who does an act for the purpose of aiding or abetting another person to commit the offence. In more modern language, that is, does something for the purpose of helping or encouraging the other. Then I said the usual examples are the lookout or getaway driver in a robbery.
Mr Daniell-Smith argued that the trial Judge’s direction contained two critical errors which led to a miscarriage of justice.
The first error alleged was that the Judge confused the elements of ss 66(1) and 66(2) when the Crown did not seek to rely on s 66(2). We do not consider for one moment, however, that the Judge confused the elements required to be established under ss 66(1) and 66(2) respectively. Counsel seemed to be under the misapprehension that any suggestion Mr Oliver and Mr Loper were engaged in a joint venture or acting in concert was inimical to s 66(1). This is not the case. In his direction the Judge made it clear that the Crown alleged the two accused acted together throughout the assault, and that each was a party to the assault or beating. He added, particularly in response to the jury’s question, that even if Mr Loper did not hit the victim, he could be considered a party if he had helped and encouraged Mr Oliver in his attack on the victim. There was nothing untoward in the Judge’s direction under s 66(1).
But Mr Daniell-Smith also complained that the analogy drawn by the Judge with the position of a lookout or getaway driver was solely relevant to liability under s 66(2). Again, we do not agree. In Larkins v Police [1987] 2 NZLR 283, Eichelbaum J expressed the opinion that a lookout could be a party under s 66(1)(b) provided he or she kept watch in order to assist the principal offender. Similarly, there is no reason why a driver of a getaway car cannot be liable for doing an act for the purpose of assisting the principal offender.
The important point is that the trial judge did not need to mention s 66(2), did not do so, and did not use language which suggests an implicit reference to it. Thus, we find no merit in this argument.
The second error alleged by Mr Daniell-Smith was that the Judge’s direction was tantamount to an instruction that mere presence is sufficient to found liability under s 66(1). Mere presence is certainly not enough. See the decision of this Court in R v Schriek [1997] 2 NZLR 139, at 149-150; and also R v Clarkson [1971] 3 All ER 344, at 347. The Crown must prove either an act or omission done for the purpose of assisting the principal offender (under s 66(1)(b)) or an act or omission done for the purpose of encouraging the offender, which is communicated to the offender (under s 66(1)(c)).
We cannot read anything in the Judge’s direction which is contrary to these provisions. His direction is not tantamount to saying that mere presence is enough. Far from it. This argument must also fail.
Mr Daniell-Smith further submitted that there was no evidence to establish either requirement in s 66(1)(b) and (c). He emphasised that there was no evidence of direct words of encouragement. Nor was there any direct evidence that Mr Oliver was aware of Mr Loper’s effort to deal with the dog.
Mr Pike, for the Crown, assisted us by pointing to the relevant passage in the Judge’s direction where his Honour summarises the prosecution case: Mr Loper accompanied Mr Oliver knowing of his purpose; he allowed Mr Oliver to drive his car to the scene, or to the vicinity of the scene, of the crime; he armed himself with a wheel brace to help fend off anticipated “trouble”; he entered the bedroom; he stood over the bed; and he tried to silence the dog because, as he told Police, he did not want Mr Oliver to get caught. We agree that on these facts alone the jury were entitled to infer that Mr Loper had helped or encouraged Mr Oliver in his attack. It is impossible to suppose that the jury did not infer that Mr Oliver knew Mr Loper had an iron bar or that Mr Loper did not know that Mr Oliver was similarly equipped. Certainly, no words of encouragement were proven, but there was sufficient evidence for a jury to find encouragement in the above conduct. There was also sufficient evidence for the jury to infer that Mr Oliver was well aware of the efforts being made on his behalf. Indeed, he was undoubtedly assisted by them. Consequently, we do not think that this final point can be sustained.
The appeal is dismissed.
Solicitors
Daniell-Smith Stallard & Hunter, Nelson for Appellant
Crown Law Office Wellington for Crown
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