Tuikolovatu v The Queen

[2012] NZCA 235

IN THE COURT OF APPEAL OF NEW ZEALAND

CA330/2012
[2012] NZCA 235

BETWEEN  MAKA TUIKOLOVATU
Appellant

AND  THE QUEEN
Respondent

Court:             Ellen France, Randerson and White JJ

Counsel:         M B Meyrick for Appellant
M J Lillico for Respondent

Judgment:      8 June 2012 at 2.15 pm

(On the papers)

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal against conviction is granted.

BThe appeal is allowed.  The conviction as an accessory after the fact to murder is quashed.

CA retrial is ordered.

DAny question of bail is to be dealt with in the High Court.

___________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

1. The appellant was part of a group of young people implicated in various ways in the unlawful killing of Jian Wang.  Christopher Shadrock was charged with her murder.  The appellant, along with others, was charged as an accessory after the fact to murder (s 176 of the Crimes Act 1961), and convicted after a jury trial.

2. Mr Shadrock’s conviction for murder has been quashed on the basis that the jury was misdirected on certain elements of the offence of murder.[1]  Three others in the same position as the appellant in this case have had their convictions as accessories quashed.  This was on the ground that proof of murder was a necessary element of the offence of being an accessory after the fact to that murder.[2]  The evidence used to prove the offence of murder in respect of Mr Shadrock was the same evidence used to prove the element of murder in respect of the charges of the three others as accessories.

   [1]      Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573.

   [2]Tere v R [2011] NZCA 549; Lemanu v R [2011] NZCA 613; and Te Kanawa v R [2012] NZCA 164.

3. The appellant seeks an order extending time to appeal against conviction.  He asks that, consistently with the other cases involving accessories, his conviction be quashed and an order for retrial made.  The Crown accepts that orders to that effect are appropriate.

4. For these reasons:

   (a)The application for an extension of time to appeal against conviction is granted.

   (b)The appeal is allowed.  The conviction as an accessory after the fact to murder is quashed.

   (c)       A retrial is ordered.

   (d)       Any question of bail is to be dealt with in the High Court.

Solicitors:

Crown Law Office, Wellington for Respondent