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Uhrle v R

Uhrle v R

Case [2015] NZCA 412 4 September 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA265/2013
[2015] NZCA 412

BETWEEN	CECILIA VICTORIA UHRLE Appellant
AND	THE QUEEN Respondent

CA301/2013
BETWEEN	UNALOTO KIPULOTU TONGIA Appellant
AND	THE QUEEN Respondent

CA334/2013
BETWEEN	FAAMANU FESULUAI Appellant
AND	THE QUEEN Respondent

CA342/2013
BETWEEN	ESAU VAILAGILALA Appellant
AND	THE QUEEN Respondent

Hearing:	2 July 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	A G Speed for Appellant Uhrle P J Kaye for Appellant Tongia L O Smith for Appellant Fesuluai J T Edgar and J M Scott for Appellant Vailagilala W P Cathcart for Respondent
Judgment:	4 September 2015 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeals against conviction are dismissed.
B The appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Introduction  [1]
Background  [3]
Trial
     The Crown case  [19]
     The defence case  [30]
     The summing up  [38]
First ground of appeal for all appellants: did the Judge misdirect
the jury as to the law relevant to party liability under s 66(2)
of the Crimes Act 1961?  [41]
     Argument on appeal  [44]
     Summing up in this case  [47]
     Analysis  [56]
Second ground of appeal for all appellants: were the Judge’s
directions as to party liability under s 66(2) inadequate in relation
to manslaughter?  [68]
Additional grounds of appeal for Ms Uhrle

(a)Did the Judge’s directions on party liability adequately link
the legal issues to the case for and against Ms Uhrle?                [72]
(b)Was the indictment misleading?  [78]
(c)Was the Judge’s direction to the jury inadequate in relation to
Ms Uhrle’s defence of withdrawal from the common purpose?     [82]
(d)Should the Judge have given a direction to the jury that they
had to be unanimous as to the factual basis for their verdict
against Ms Uhrle?  [91]
(e)Did the Judge err in failing to direct the jury under s 122 of the
Evidence Act 2006 in relation to the remarks of counsel for
Mr Vailagilala?  [93]

Analysis [96]
Additional ground of appeal for Mr Fesuluai [103]
Additional grounds of appeal for Mr Vailagilala

(a)Conduct of counsel for Ms Uhrle  [106]
(b)Admission of knife exhibits  [112]
(c)Did the Judge err in relation to the intoxication direction
generally, and in relation to the appellant Mr Vailagilala in
particular?  [118]

Sentence appeals  [123]
     Grounds of appeal  [130]
     Analysis  [133]
Result  [140]

Introduction

The appellants were found guilty following a jury trial of the murder of Mr John Li’a. On 30 April 2013, Cooper J sentenced them each to life imprisonment.[1] He imposed a minimum period of imprisonment of 13 years on Ms Uhrle, 15 years on Mr Fesuluai, and 13 years, 6 months on each of Mr Tongia and Mr Vailagilala. Each now appeals conviction and sentence. All advance their sentence appeal on the grounds the sentence imposed on them was manifestly excessive. There is also a degree of commonality in relation to the conviction appeals. All argue that the Judge misdirected the jury as to the law in relation to liability as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Uhrle v R

Details

AGLC: Uhrle v The Queen [2015] NZCA 412
Case: [2015] NZCA 412
Decision Date: 4 September 2015

CaseChat Overview and Summary

The appellants were found guilty following a jury trial of the murder of Mr John Li'a. On 30 April 2013, Cooper J sentenced them each to life imprisonment. The appellants now appeal both their convictions and sentences. They all argue that the Judge misdirected the jury as to the law in relation to liability as a party under the provisions of the Crimes Act 1961. Additional grounds of appeal against conviction advanced by the appellants are as follows: (a) It is argued for Ms Uhrle that: (i) The Judge’s directions on party liability inadequately linked the legal issues to the case for and against Ms Uhrle. (ii) The indictment was misleading. (iii) The Judge’s direction to the jury was inadequate in relation to Ms Uhrle’s defence of withdrawal from the common purpose. (iv) The Judge should have directed the jury on the need to be unanimous as to the version of events they had settled upon before convicting Ms Uhrle. (v) The Judge erred in not directing the jury of the need for caution when considering the closing remarks of counsel for Mr Vailagilala, which were highly critical of Ms Uhrle. (b) It is argued for Mr Fesuluai that the Judge should have warned the jury pursuant s 122(2)(c) of the Evidence Act 2006 of the need for caution in accepting the evidence of Mr Fesuluai’s co-accused, Mr Vailagilala. (c) It is argued for Mr Vailagilala that: (i) The Judge erred in not directing the jury to ignore an improper question asked of Mr Vailagilala by counsel for Ms Uhrle, and in not explaining or otherwise commenting upon counsel for Ms Uhrle’s conduct in interrupting counsel for Mr Vailagilala’s closing. (ii) The Judge’s direction to the jury as to the significance of Mr Vailagilala’s intoxication to the issues they had to decide was inadequate, and effectively took the defence away from the jury. (iii) The Judge erred in allowing knives seized at or near the home of Ms Uhrle to be produced in evidence. There was no evidence, scientific or otherwise, that any of the knives were used in the stabbing, and their production was highly prejudicial. The Crown case against Ms Uhrle was different to its case against the men. There was no suggestion that she was one of the attackers. It was acknowledged that her liability was as a party. The Crown’s central allegation was that she rounded up the male accused, knowing that they were armed with weapons, drove them to where she knew the victim would be, and then watched as they set upon the victim. These were the acts of encouragement and assistance relied upon for liability under s 66(1). The Crown said that she also incited or instigated the attack, had knowledge of the men’s intentions to attack Mr Li'a with the weapons and that the three male accused were reckless as to whether death ensued. The Crown’s case against Ms Uhrle under s 66(2) mirrored that against the men. The Judge gave both oral and written directions to the jury. The oral summing up included directions as to the law on murder and manslaughter, party liability under s 66(1) and (2), the relevance of intoxication to the issues the jury had to consider, and the defences of withdrawal (at that stage raised by both Ms Uhrle and Mr Tongia) and self-defence (relied upon by Mr Tongia). The Judge took the jury through the first part of the written handout in the course of summing up but did not take them through the question trail. The Judge’s directions to the jury, when taken in the context of the overall summing up, clearly and repeatedly signposted that before finding liability for murder under s 66(2) the jury needed to be satisfied not just of the actus reus of s 66(2) liability (the joining of the common purpose), but also of the mental element (that murder was known to be a probable consequence of the prosecution of the common purpose), and that these elements all had to be present together prior to the infliction of the fatal blow or blows. The Judge gave conventional directions to the jury that manslaughter is culpable homicide without proof of murderous intent. This was followed by the directions under s 66(1) to which we have already referred. He then came on to consider s 66(2). The direction was to the effect that liability for manslaughter was made out if the Crown proves that manslaughter was known by the accused to be a probable consequence of the carrying out of the common purpose. As with the murder directions this direction did not stand on its own. It followed on from the directions as to the elements of manslaughter given earlier — culpable killing without murderous intent — and from the detailed assistance given in relation to liability under s 66(1) for manslaughter. The jury also had the assistance of the handout which set out the elements of murder and manslaughter and again, which the jury could be trusted to refer back to. The appeal against conviction and sentence are dismissed.

Orders