The Queen v Peter Manukau
[2002] NZCA 303
•12 December 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA256/02 |
THE QUEEN
V
PETER MANUKAU
| Hearing: | 19 November 2002 |
| Coram: | Anderson J Williams J Baragwanath J |
| Appearances: | G C Gotlieb for Appellant J C Pike for Crown |
| Judgment: | 12 December 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J |
Appeal
After a trial in the District Court, the appellant, Mr Manukau, was convicted on a count that on 8 July 2001 he, jointly with a Mr Walker and a Mr Johnson, wounded a Mr Harris with intent to cause him grievous bodily harm. He appeals against that conviction.
During its retirement, the jury sent the Judge a note saying:
One of the jurors thinks that the change [sic] of grievous bodily harm doesn’t fit the action of one of the accused, therefore, has pleaded not guilty. We are now locked and deadlocked, we are not unanimous with three of the charges.
One jurors [sic] wants to clarify the words “intent to cause grievous bodily harm”.
In association with an earlier direction as to parties, the Judge’s response to that query forms one of the principal grounds on which Mr Manukau appeals.
On 25 June 2002 Mr Manukau and his co-offenders were each sentenced to four years imprisonment. Mr Manukau appeals against that sentence on the ground that it is manifestly excessive in the circumstances.
Facts
The charge arose out of a drunken confrontation between Mr Manukau and others and Mr Harris in the early hours of the morning of 8 July 2001. As is commonplace in such affrays, witnesses’ recollection of participants’ actions differed markedly.
The Crown’s version was that during the evening of 7 July an altercation occurred between Mr Harris and Mr Manukau’s 21-year-old daughter at a party. When Ms Manukau returned home in the early hours of 8 July she was confronted by Mr Harris who threatened her with an iron bar. She drove to another nearby party where her father was present. Two carloads of persons including Mr Manukau and those who became his co-accused – including a Mr Kahui who pleaded guilty at an early stage - travelled to Ms Manukau’s address. Mr Harris had returned to his nearby home. They went to his home. They found him in the driveway armed with an axe and a steel bar. Amidst much swearing and shouting, Mr Manukau disarmed Mr Harris. A fight began between the two. Messrs Walker, Johnson and Kahui joined in, Mr Walker wielding a softball bat taken from the car and Mr Kahui wielding a length of 4 x 2 found on the property. The evidence also suggested a bayonet may have been used. Mr Harris was punched, kicked and belaboured while he lay on the ground fighting with Mr Manukau. In due course, the confrontation ended. During the trial, this became known as Fight 1.
During Fight 1, Mr Harris’ partner tried to quell the disturbance. Having failed, she telephoned a nearby house for help. A Black Power member, a Mr Taylor responded with a Mr Ropata whom he asked to accompany him to watch his back.
By the time Messrs Taylor and Ropata arrived at the Harris address, what became known at the trial as Fight 2 had broken out. It involved the same persons as Fight 1. Messrs Taylor and Ropata broke up Fight 2.
Mr Harris‘ injuries included loss of his right eye, several facial fractures, broken teeth, bruises and abrasions. He was hospitalised for 11 days and requires long-term treatment. It was common ground that he received the more serious injuries in Fight 2.
A Mr Poa, Mr Kahui’s father-in-law, was one of the party that went to Mr Harris’ house. He gave evidence for the Crown. During Fight 1 he saw Messrs Kahui and Walker respectively hitting Mr Harris with a fence batten and a baseball bat while Mr Johnson was kicking him with his steel-capped boots and Mr Manukau was on top of him, punching. He said he was leaving the property when Mr Taylor arrived but turned and followed him and only saw Messrs Kahui and Harris involved in Fight 2.
Mr Kahui also gave evidence for the Crown. He said he picked up the 4 x 2 on the driveway of Mr Harris‘ house as he followed Messrs Manukau, Johnson and Walker onto the property. He confirmed that Messrs Manukau and Harris were fighting and punching on the ground during Fight 1 with Messrs Kahui and Johnson kicking Mr Harris. After a pause and the partner’s intervention, he said the verbal exchanges recommenced and a scuffle broke out between Messrs Harris and Manukau. He hit Mr Harris with the 4 x 2 on one occasion and then threw it away. He did not mention the use of the bat though acknowledged in cross-examination making a statement to the police that Mr Johnson “went nuts with his bat” hitting Mr Harris in the face.
Mr Harris said that he could feel blows from “bats and wood” on his head and back during Fight 1 whilst he was fighting with another person. Apart from hearing the couple’s cars being smashed up, he remembered nothing of Fight 2.
Mr Taylor said that after the phone call from Mr Harris’ partner he went to the Harris address to see about four or five men “swinging down on something that was on the ground”. One had a 4 x 2. Another had a baseball bat. He rushed in and knocked over the man with the 4 x 2. When he got up he only saw Mr Manukau, whom he knew. All the others had left.
Mr Ropata said as he entered the property he saw a “scrum” punching and kicking “something in the middle pretty hard”. He saw a man about to hit Mr Taylor from behind with a baseball bat, grabbed it and swung it at the former assailant, hitting him fairly hard. Everyone then left except Mr Manukau. Mr Ropata said Mr Manukau had a bayonet in his hand which he, Mr Ropata, took from him.
Mr Manukau’s evidence was that as he approached Mr Harris’ property he was taunted by him. Something was thrown at him and Mr Harris hit him. They fell to the ground. He got up, threw a beer-can at him, tackled him and they fell to the ground again, wrestling and punching. He said Mr Harris hit him again with his weapon as they were rolling about whilst he tried to fend off the attack. He said they were both hit by others during this period.
Fight 1 stopped. There was further abuse from Mr Harris while he was trying to reason with him. He disarmed him. Fighting recommenced. He claimed they were only punching each other and fell down wrestling. After a time Mr Taylor arrived and pulled him off Mr Harris. He did not identify who was assaulting Mr Harris or himself during either fight. In particular, he denied ever seeing Mr Walker with a baseball bat. He said Fight 2 was only between Mr Harris and himself. He said Mr Harris was not unconscious as a result of Fight 2 but was able to get up and continue arguing.
Summing-Up
In her summing-up, the Judge first recorded the Crown contention that each of the accused was guilty either as principal or party saying (para [42]) that the “Crown case is that this was a group attack in which all three of these men played a vital and very active part in inflicting severe blows to Mr Harris”. She then directed the jury in terms of the Crimes Act 1961 s66 (1) giving the standard direction as to the necessity for proof of active involvement and the lack of any need for the Crown to prove knowledge by all parties of the precise offending likely to occur. She said (para [45]) that on the facts “you might accept that everyone that arrived at the complainant’s house would know that some form of physical altercation was going to take place” drawing attention to the weapons and the necessary intent to assist or encourage in the commission of crime. The Judge then directed the jury on the Crown’s contention that the accused were each guilty as principals, summarising by saying (para [53]) that the “Crown must prove each accused wounded Mr Harris and at the time he did so he intended to cause him really serious harm”. She then directed the jury as to self-defence as that was raised by the appellant. She summarised the respective cases, in particular recording the evidence that “all anyone ever described Mr Manukau doing is exchanging blows with the complainant” and that “were that to be the jury’s view, they should acquit”. No issue is taken with any of those aspects of the summing-up.
The Judge’s response to the question earlier cited was largely to repeat her direction from the summing-up. She said that at the time of the wounding it was for the Crown to demonstrate that the “accused again taking each one separately” had the necessary intention to cause harm, a direction she repeated almost immediately afterwards.
Submissions
Mr Gotlieb, who was counsel for Mr Manukau at the appeal but not at trial, submitted that the Judge’s initial direction on parties was in error when she said (para [47]) “In some cases it is not possible to say which of the offenders was the principal and which was the party.”
Mr Gotlieb submitted that a direction in those terms was too broad, lacked necessary particulars (Robertson et al Adams on Criminal Law para CA66.12(1) P1E-4(d)) and did not comply with the requirement for the Crown to prove knowledge that a crime of the type in question was intended even if knowledge of the crime committed could not be proved (R v Bainbridge [1960] 1 QB 129, 132, 134). He was critical of the omission of any reference to s66 (2) though acknowledging that the case had never been run on that basis. He therefore submitted that the Crown had to prove either that Mr Manukau had wounded Mr Harris with the requisite intent or that he knew somebody else was committing that crime and aided or abetted.
He submitted that the form of the question indicated that at least one juror was concerned at the appropriateness of the charge against Mr Manukau and that the Judge was in error in not directing that an alternative count was available. He suggested she should have directed that the proper verdict was to acquit if they were of the view that the charge preferred was not proved.
For the Crown, Mr Pike submitted the evidence showed that Mr Manukau had been correctly charged as a principal or as one who aided or abetted the commission of the offence by others. He drew attention to Mr Manukau instigating the visit to the Harris property, the serial nature of Fights 1 and 2, and the evidence that Mr Manukau was occupying Mr Harris in fisticuffs in both fights whilst other accused belaboured him with weapons. He particularly relied on the evidence of Messrs Taylor and Ropata of what they saw occurring in Fight 2. He submitted the Judge’s response to the question set an unnecessarily high hurdle for the Crown in effectively directing the jury that to convict Mr Manukau they must find proof on a principal rather than a party basis. Even so, Mr Pike submitted that there was ample evidence to support a jury finding either that Mr Manukau committed the wounding or that he knew that a crime of that kind was intended to be committed by the others whom he led to the Harris house, one of whom was armed from a baseball bat from the commencement of the journey and another whom he may have known had armed himself with a length of wood before Fight 1. He drew attention to the fact that all accused knew Mr Harris was injured, even if not seriously, when Fight 1 ended but all renewed their attack on him and were accordingly responsible for the serious injuries he suffered in Fight 2.
Discussion
Throughout the trial, as far as Mr Manukau was concerned the Crown relied solely on s66(1) asserting that he either wounded Mr Harris with the requisite intention or was a party to that wounding.
In her summing-up, the Judge correctly reflected that approach in directing the jury that all accused were guilty if they “played a part in this crime” either individually or, as the Crown put it, that this was a group attack in which each, either as principal or party, was criminally implicated.
Our view is that there was ample evidential foundation for both the Crown’s approach and the Judge’s summing-up.
Mr Manukau’s daughter had been in an altercation with Mr Harris. She sought her father out and told him what had occurred. He gathered together enough of his associates to fill two cars and went to the Harris property. Mr Manukau said that he only went to the Harris property to discuss with Mr Harris what had occurred with his daughter but it seems common ground that the conversations involved a deal of mutual abuse and cursing. It was open to the jury to take the view that the party went to the Harris residence to right the slight to which Ms Manukau said she had been subjected. It was also open to the jury to conclude that violence was expected by the party given the number of participants and at least one weapon.
Fight 1 occurred. We are not satisfied that Mr Manukau is proved to have known at the outset that Mr Walker, who followed him from the car, had taken a baseball bat from its boot. But while it was tolerably plain that Mr Harris suffered only minor injuries in the fight, there was also ample evidence of the arrival of weapons including the baseball bat and, possibly, of their use at that stage of the proceedings.
The lull between Fights 1 and 2 gave Mr Manukau and his party an opportunity to withdraw. The fact they remained at the Harris address and renewed the fight could have been taken by the jury as demonstrating an intention either from the outset or immediately prior to Fight 2 to engage in physical violence possibly involving wounding and serious injury. It was open to the jury to find that by the time Mr Manukau became engaged in what he said was no more than punching and wrestling with Mr Harris, he knew that at least two weapons were in possession of members of his party. He himself had used a beer-can as a projectile during Fight 1 and there was also the baseball bat that Mr Walker had taken from the boot of his car. The jury could take the view that Mr Manukau knew that his engagement with Mr Harris in Fight 2 was assisting in facilitating the attacks by other members of his party, particularly Messrs Walker and Johnson.
We are therefore of the view that while there was no more than insubstantial evidence that Mr Manukau himself wounded Mr Harris with the intention of causing him grievous bodily harm, there was ample evidence that he deliberately did or omitted acts to aid or abet Messrs Johnson and Walker to commit that offence.
The first point advanced on Mr Manukau’s behalf is, therefore, without substance.
As far as the reply to the question is concerned, our view is that the Judge correctly stressed to the jury the Crown must have been able to prove the intention to commit the offence at the time of wounding before a conviction could rightly be entered. Given that all that was legally required was proof of knowledge of an intention to commit an offence of the type contemplated, we agree with Mr Pike that the answer may have set a somewhat higher test than required. Even so, the jury by its verdict was clearly satisfied that the Crown had adduced sufficient evidence in that respect.
Seen in that light, we read the earlier part of the question as being no more than a doubt, expressed at that stage but clearly later resolved, on the part of one juror that the requisite intent had not been demonstrated. Even if an included charge might have been thought to be open, which we doubt, no counsel contended for it, the case having been run on a different basis and there was no obligation on the Judge to give the jury that alternative.
In the circumstances, therefore, we conclude there is no substance to be found in the second ground on which the appeal against conviction is mounted.
Appeal against sentence
The appeal against sentence was propounded on the basis that four years imprisonment was excessive having regard to Mr Manukau’s personal circumstances.
A number of character witnesses had been called on Mr Manukau’s behalf. Plainly, as the Judge recognised in her sentencing remarks, he had played a valuable part in the community and was entitled to a certain credit for that.
However, submissions in mitigation advanced on the part of the other accused showed that they, too, had personal circumstances which they were entitled to invoke in mitigation. Balanced against each other, they could be seen as roughly equal. Further, quite irrespective of the personal circumstances, this was a serious renewed attack upon a man who, even if he may not have behaved appropriately as far as Ms Manukau was concerned, certainly did nothing which could remotely warrant the very serious injuries inflicted on him. In those circumstances the Judge has not been shown as falling into error in not differentiating between any of the three accused. She chose a starting point of 5 years imprisonment and reduced that to 4 years for their respective mitigating features. That appears in our view to be an appropriate reduction in the circumstances of this matter.
Result
In the result, both Mr Manukau’s appeals against conviction and sentence are dismissed.
Solicitors
Bergseng & Co, Auckland
Crown Law Office, Wellington
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