The Queen v Turaki
[2008] NZCA 543
•9 December 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA669/07
[2008] NZCA 543THE QUEEN
v
TE INGOA TURAKI
Hearing:20 November 2008
Court:Arnold, Venning and Miller JJ
Counsel:C W J Stevenson for Appellant
N P Chisnall for Crown
Judgment:9 December 2008 at 11.00 am
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
[1] Mr Turaki appeals against his conviction for the murder of Jordan Adams. He admitted causing Mr Adams’ death by striking him twice in the head with a piece of wood. He did not give evidence at his trial but pointed to his police video interview, in which he said he aimed for Mr Adams’ back and shoulders, connecting with his head because Mr Adams was moving and trying to get up.
[2] His complaint is that his principal defence – lack of murderous intent – was not adequately put to the jury in the Judge’s summing up.
[3] The trial, which began at Auckland on 23 July 2007 before Baragwanath J, was a third trial for Mr Turaki. Retrials had been ordered twice because of the way in which the alternative defence of provocation had been dealt with. The earlier judgments of this Court may be found at [2005] 3 NZLR 329 and CA47/06 23 November 2006. For present purposes the first of those judgments conveniently narrates the background to Mr Adams’ death:
[15] On Friday 12 September 2003 Mr Turaki (at that time aged 19) attended a party in Otahuhu as an invited guest. Mr Michael Ofakineiafu (aged 21) and Mr Hosea Taukatelata (aged 14) were also at the party. They, and a number of others at the party, were members of, or associated with, a group calling themselves the OCS (Onehunga Central Styles). The three arrived at the party with various friends at different times during the evening between 8 pm and midnight.
[16] Some of the other party attendees were youths from the Otara area. They included the victim, 16-year-old Mr Adams, and some of his school friends. Tensions developed during the evening, resulting in a number of confrontations (some violent). One such confrontation involved a friend of Mr Adams, Mr Brett Mose. After they had left the party, Mr Mose decided to retaliate. He enlisted the help of his friends, including Mr Adams, and of his brother and his brother’s associates, including one of Mr Mose’s cousins. Some of the group (but not, it appears, Mr Adams and his friends) belonged to, or were associated with, a group called the CCBs (the Crown Crescent Boyz). The retaliating group included a young Mangere woman and her brother. The young woman had also been assaulted at the party earlier in the evening by one of the female partygoers, in an altercation apparently involving some difficulty over the monopolisation of the toilet by Mr Ofakineiafu’s toddler, who had diarrhoea.
[17] The Otara group went back to the party in a convoy of three or four vehicles, armed with baseball bats, a hammer, a steering lock and a tyre lever among other weapons, intending to assault those they considered responsible for the earlier assaults. Mr Adams was driving his friends in his mother’s car. The group arrived shortly before 1.30 am on Saturday morning. A small subgroup (of about three – five) advanced down the driveway to the rear of the property, where most of the partygoers were. It appears all of the subgroup was armed.
[18] The rest, numbering some 10 – 15, many of whom were also armed, remained either at the top of or part-way down the driveway, which was, according to the evidence of one of the police constables, about 15 m long. The witnesses from the Otara group said that Mr Adams was part of that supporting group (and it appears at the back of that group) and did not form part of the subgroup. Partygoer witnesses described the situation as pretty threatening and said that the Otara group appeared to wish to use their weapons. They did not differentiate between the subgroup and the supporting group in their evidence in this regard.
[19] After some verbal confrontation (which included threatening remarks about the OCSs) and some pushing which apparently resulted in two female partygoers falling to the ground, one of the Otara subgroup started a brawl by striking one of the partygoers in the face with a baseball bat. The blow was forceful and the victim, Mr Kava, a friend of Mr Turaki, was rendered unconscious. Some of the group who went to help him thought he was seriously injured because of all the blood. The evidence from the partygoers was that everyone had reacted and started fighting once Mr Kava was hit, apart from those who remained to help him. They said that the Otara group did not appear to be about to leave of their own accord and that they needed to be forced off the property. The partygoers picked up items to use as weapons and there was fighting on the driveway as the group were forced up onto the road.
[20] The Otara group headed to their vehicles, which were parked about 60 m away. Most of the group made it into their vehicles. Tragically, Mr Adams did not. As he was trying to unlock his mother’s car, Mr Ofakineiafu hit him on the head with a piece of timber before running on to chase the departing cars. After being struck, Mr Adams stumbled forward a few metres, regained his footing and ran some 15 m further to a friend’s car before tripping, possibly over a tyre lever that had apparently slipped from his trousers and fallen across the kerb. Mr Taukatelata then approached Mr Adams who was face down on the ground and struck him multiple blows on the back of the head with a metal steering wheel lock he had picked up after it was dropped by the departing Otara group.
[21] Witnesses said that Mr Turaki had by then returned from chasing the departing cars and that he hit Mr Adams a number of times about the head and shoulders with a large piece of timber. However, in his video interview Mr Turaki said that did not think that he had chased the Otara van, but rather that he went straight up to Mr Adams (see below at para [33]). One witness said that, part-way through the assault, Mr Turaki ran off to chase off the cars before returning to strike Mr Adams again but this does not seem to have been put to Mr Turaki in his video interview. One of the older partygoers, Mr Sione Langi, said that he stopped Mr Turaki’s attack as he was about to deliver a further blow and told him and his friends to leave the area, which they did. Mr Turaki’s account was that he had already stopped of his own accord when Mr Langi intervened.
[22] Mr Adams was taken to Middlemore Hospital and then to Auckland Hospital where he remained in a critical condition. He did not regain consciousness and died on 20 September 2003 from a serious brain injury due to multiple blows to the head. At least three blows were with a heavy instrument and at least three separate and distinct skull fractures were present. It was not possible to identify a single fatal blow.
[4] At the beginning of the trial Baragwanath J provided the jury with opening directions outlining the elements of the crimes of murder and manslaughter and the partial defence of provocation. Defence counsel (not Mr Stevenson) conceded in an opening statement that Mr Turaki’s unlawful act was a substantial and operative cause of Mr Adams’ death.
[5] The jury saw Mr Turaki’s video interview and had a copy of the transcript. In the interview Mr Turaki accounted for the blows, explaining how he came to hit Mr Adams in the head:
Q.So he’s he’s face down, tummy down, and he’s trying to get up off the ground like this (demonstrates).
A.Yeah.
Q.Okay. And is that, when he’s trying to get up is that the first time that um you hit him?
A.Yeah.
Q.With the wood.
A.(Nods head).
Q.Was, was there any of the kicking or punching or was it all just the wood?
A.Just the wood I think.
Q.When you, when he was trying to get up, or when you first saw him…
A.Yeah?
Q.Could you see any blood on him at all?
A.No.
Q.None at all? He wasn’t bleeding that you could see?
A.(Shakes head).
Q.Okay. Whereabouts did you hit him first?
A.In the back.
Q.Did you say anything to him?
A.Pardon?
Q.Did you say anything to him when he was trying to get up?
A.I was, I was swearing.
Q.Swearing. What were you saying?
A.I was saying fuck, oh, the F word.
Q.Yeah. What, just fuck fuck or…
A.Fuck, um, F you Onehunga. Yeah.
Q.Fuck you Onehunga.
A.Yeah.
Q.Okay. And was he saying anything BACK?
A.I dunno. Oh, not even (unclear) I think it was just too fast.
Q.Okay. And, and how many times, when he was trying to get up and you were saying fuck you Onehunga, how many times did you hit him on the back with the wood?
A.About three times?
Q.Okay. Were you aiming for his back?
A.Yeah.
Q.Okay. And each time you aimed you got it.
A.Yeah.
Q.Okay. And then after that you said before that there was two shots to the head?
A.Yeah that was when I aimed for the back.
Q.It was what?
A.For his back. When I was aiming for his back.
Q.You were aiming for his back?
A.Yeah.
Q.When, after you’d aimed for his back um, was he, was moving around trying to get up like this (demonstrates) while you were hitting him?
A.Yeah.
Q.Okay. And so you just kept trying to hit him like that?
A.Yeah.
Q.Okay. When he was trying to get up, um, did you see that when he was getting up if you kept hitting him you, you might have got him somewhere other than his back somewhere else?
A.Just, just to his head.
Q.You thought that you might have got his head if you kept moving up?
A.Yeah.
Q.Okay and when you finally did hit him in the head was it once or twice.
A.It was, I think twice.
Q.Twice. Okay. And when you hit him in the head were you going for the head?
A. Na.
Q. You were going to the back.
A. Mm. For his shoulders and that.
Q. You were going for his shoulders.
A. Mm.
Q.But you thought that cause he was moving trying to get up you may have got him in the head.
A.Yeah.
Q.Did you care where you got him or were you just…?
A.Yeah. Felt sorry for him after that.
[6] Summing up on 1 August 2007, the Judge provided the jury with a handout elaborating on the elements of the offence and explaining what the Crown must prove. He had drawn lines through the elements that were not in dispute. He confirmed that the issues were murderous intent and provocation, explaining that meant the Crown had at least proved manslaughter.
[7] Murderous intent was explained in the handout at some length:
3.1First alternative limb:
(a)Did the accused mean to cause the death of the deceased? YES/NO
3.2COMMENT ON 3.1. In considering this first limb of the third element, whether Mr Turaki intended to kill Mr Adams, you must look at his actual state of mind. The test is wholly subjective, which means that you look at the matter through his eyes. In doing so you take him just as he was on that night at the time he struck Mr Adams. He had consumed liquor and you take that into account. It may act to his disadvantage if you find that liquor cause him to lose inhibitions; it may act to his advantage if you consider that because of the liquor he either could not or did not form an intention to kill.
3.3If YES move to fourth element.
3.4If NO move to (b).
3.5Second alternative limb:
(b)Did the accused mean to cause to the deceased bodily injury which he knew was likely to cause death and was reckless whether death ensued or not?
3.6There are three parts to the second alternative (b) to the third element:
(i)Did the accused form an intention to cause the deceased bodily injury? YES/NO. If the answer is NO you would find Mr Turaki NOT GUILTY OF MURDER BUT GUILTY OF MANSLAUGHTER. If the answer is YES move to (ii).
(ii)Did the accused know at the time he formed that intention that there was a real and substantial risk of death as a result of his actions? YES/NO. If the answer is NO you would find Mr Turaki NOT GUILTY OF MURDER BUT GUIILTY OF MANSLAUGHTER. If the answer is YES move to (iii).
(iii)Was the accused reckless at the time he committed the criminal assault, which means that he actually appreciated that death was a likely consequence of his act and, by nonetheless acting in that way, showed that he was willing to run that risk? YES/NO.
3.7COMMENT ON 3.6. In considering the second limb of the third element, there are three questions to which the Crown must obtain the answer yes to establish that limb:
(i) Did Mr Turaki intend to cause Mr Adams bodily injury?
(ii)Did he know at the time he formed that intention that there was a real and substantial risk of death as a result of his actions?
(iii)Was he reckless, meaning that at the time he was about to strike Mr Adams did he actually appreciate that death was a likely consequence of his proposed act and, by nonetheless acting in that way, showed that he was willing to run that risk?
3.8Once again you must look at Mr Turaki’s actual state of mind. The test is wholly subjective, which means that you look at the matter through his eyes. In doing so you take him just as he was on that night at the time he struck Mr Adams. He had consumed liquor and you take that into account. It may act to his disadvantage if you find that liquor caused him to lose inhibitions; it may act to his advantage if you consider that because of the liquor he either could not or did not:
(i) Form an intention to cause Mr Adams bodily injury; and
(ii)Know at the time he formed that intention that there was a real and substantial risk of death as a result of his actions; and
(iii)At the time he was about to strike Mr Adams actually appreciate that death was a likely consequence of his proposed act and, by nonetheless acting in that way, show that he was willing to run that risk?
If the answer is NO you would find Mr Turaki NOT GUILTY OF MURDER BUT GUILTY OF MANSLAUGHTER.
If the answer is YES …
[8] The Judge took the jury through the handout, emphasising that provocation was not reached unless the Crown proved murderous intent, and that without murderous intent the verdict would be one of manslaughter. He explained that when considering murderous intent the jury had to look at Mr Turaki’s actual state of mind. No issue was taken with these directions on appeal.
[9] Nor did Mr Stevenson suggest either that experienced defence counsel, who had appeared on the previous appeals (and presumably the trials), failed to put the defence fully, or that the Judge failed to explain murderous intent was in issue when summarising the defence case. The Judge began his summary by saying:
… The defence say that they have, from the outset, accepted Mr Turaki’s responsibility of what he has done by going to the police station and making the video and coming clean about it. And at the first opportunity that he was able, properly, to receive at the trial his counsel stood up and made the admissions which were admissions of manslaughter but that is as far, says the defence, as this case goes or should go and your verdict should be the one that the defence has acknowledged all along of guilty of manslaughter and that, for two reasons, first of all that the accused lacked murderous intent and, secondly, because he is entitled to the partial defence of provocation that reduces murder to manslaughter.
[10] Mr Stevenson’s argument, economically and effectively advanced, was that nowhere did the Judge explain that the defence said the blows to the head were accidental, in that Mr Turaki was aiming for Mr Adams’ back and shoulders but hit his head because Mr Adams was moving. The Crown accepts the Judge did not say that in so many words but contends he adequately drew the jury’s attention to the point.
[11] As this Court held in R v Shipton [2007] 2 NZLR 218 at [33], it is the duty of a trial Judge to identify and adequately remind the jury of the defence case. Failure to refer in the summing up to a central line of defence will generally result in the conviction being set aside. The Court recognised that there are limits on the Judge’s duty. The Judge must see that “the nature of the defence is squarely put through his office by summarising the nature of the defence and the evidence,” but the Judge need not repeat defence counsel’s arguments or try to improve a weak defence case: at [37].
[12] The issue in Shipton was whether the trial Judge had failed to identify the distinct defence of one of a number of accused charged with rape. His defence was that he did not arrive at the scene until the others had left and then had consensual sex with the victim. The Court found that the trial Judge had “rolled in” his defence with that of his co-accused – “[t]he defence cases were treated as essentially one and the same”: at [54]. The issue in this case is different. The nature of the defence was identified, and the question is whether the evidence that the defence relied upon for that defence was adequately summarised.
[13] As to that, the trial Judge enjoys a wide discretion. This Court held in R v Keremete CA247/03 23 October 2003 (at [18]):
… A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised (R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task. Treatment of matters affecting the cogency of evidence is not required as a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.
[14] Before summarising the cases for each side, the Judge explained that the jury had to consider the factual circumstances in relation to both murderous intent and provocation and how those circumstances appeared to Mr Turaki. He identified the circumstances, such as the time of night, the speed and suddenness of the incursion by the Otara group, the nature of the brawl, and the time span. He pointed to the conflicts of evidence about the events that led up to the blows to Mr Adams. He then added:
You consider, and this is very important, where Mr Adams was and which of the Crown version, the defence version or any version between them, you find to be the facts. … I will come later to the party cases in a little more detail, the Crown case that the sequence was that the blow with the wheel lock had hit this man, thrown him to the ground. There he was inert when he was attacked by Mr Turaki with a series, the Crown says, of blows. The defence case is, of course, very different. It is that the, Mr Adams was still running on the occasion of the first of only two blows from the accused. He fell and there was a second blow when the, Mr Adams as the accused put it, was trying to get up with the prospect the accused may suggest of being able to do something, if only to get away. So that, and this is important, in terms of both the murderous intent element and the provocation element, if you get to that, as to what actually were the facts. … Of very real importance, you may think, is the nature of such blows as you find that were struck by Mr Turaki, the language being used by Mr Turaki who refers to at page 53 of his statement [sic] … . So that is a brief synopsis as I have attempted to put in context the major issues in this case.
[15] Moving on to the theory of the Crown and defence cases, as he put it, the Judge said he would confine himself to a brief sketch of the very careful speeches of counsel. He explained that the Crown case was that Mr Adams was lying defenceless and inert on the ground when Mr Turaki attacked him with a series of blows. Far from being provoked, Mr Turaki delivered a brutal punishment when he was able to, and did, form murderous intent.
[16] The defence case was introduced with the passage quoted at [9] above. The Judge went on to summarise what defence counsel said about provocation, emphasising that Mr Turaki and his associates were entitled in self-defence to take up weapons in the face of an armed incursion. He added:
In terms of time, place and circumstance, passions remained high until the intruders were well clear and no longer a threat and the adrenaline ceased pumping. Mr Adams was clearly an attacker, he had been carrying the tyre iron. Despite what we now know was his age, he was a man of six foot one or two, solid and muscular. The accused was affected by alcohol. This bears particularly on his intent and of course the first limb of provocation. In the dark and in the course of the melee his mind was now [sic] shown to have intended to cause death, nor to possess knowledge that there would be real risk of death, nor recklessness whether death ensued. But even if you are against the defence contention on that, and find for the Crown on the element of murderous intent in one or other of the limbs, provocation was still running says the defence.…
Defence says that you should accept the defence criticisms of Jesse’s evidence as being rationalised and prefer the defendant account that there were only two blows from the accused, the first when Mr Adams was still moving and the second while he was trying to get up. The defence says that what Mr Turaki says about the additional blows is really to be explained as trying to shield someone, possibly Hosea. So, says the defence, you should not find murderous intent and even if you do, you should find that provocation was running, … That was an attempt to recount the essence, albeit in different words, of the cases made for the Crown and for the defence.
[17] Jesse Suafinaunga, whose evidence was referred to in that passage, was a member of the Otara group and an eyewitness to the attack on Mr Adams. He described three “full force” blows to Mr Adams’ head with the piece of wood and said Mr Adams did not try to get up or even move. The jury was given the notes of evidence.
[18] When addressing the defence case the Judge did not say expressly that the reason Mr Turaki was said to lack murderous intent, in circumstances where he admitted delivering some of the fatal blows, was that he was not aiming for Mr Adams’ head but hit it because Mr Adams was moving. But we are satisfied that the Judge did make the point sufficiently, and so discharged his obligation in the circumstances of this case. With the assistance of experienced counsel, the issues for the jury were narrow and very clearly identified. The Judge outlined legal and factual issues before summarising the cases. In doing so he explained that the Crown said Mr Adams was lying still and defenceless, while the defence said that he was running and trying to get up when the first and second blows were struck. He explained that Mr Turaki’s intent had to be assessed subjectively “through his eyes”, so drawing the jury’s attention to Mr Turaki’s police interview, and he specifically referred to page 53 of the transcript, where the interviewer explored Mr Turaki’s claim that Mr Adams was trying to get up off the ground when Mr Turaki hit him. He repeated when summarising the case that the defence said there were only two blows from the accused, the first when Mr Adams was still moving and the second while he was trying to get up, and he connected that point to the issue of murderous intent. The jury can have been in no doubt about the specific evidential controversy and its significance to the defence. Consistent with that, defence counsel did not raise any concerns with the Judge at the conclusion of the summing up.
[19] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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