v v R HC Auckland Cri-2006-204-487
[2007] NZHC 1436
•11 December 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-204-000487
V
Applicant
v
THE QUEEN
Respondent
Hearing: 7 December 2007
Appearances: B H Dickey for Crown
J Boyack and C Cato for Accused
Judgment: 11 December 2007 at 10:00 am
RESERVED JUDGMENT OF COURTNEY J ON s 347 APPLICATION
This judgment was delivered by Justice Courtney on 11 December 2007 at 10:00 am
pursuant to Rule 540(4) of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629 – B Dickey
Counsel: J E Boyack, P O Box 105410, Auckland
Fax: (09) 303-1955
C B Cato, P O Box 941 Shortland Street, AucklandFax: (09) 377-0096
V V R HC AK CRI-2006-204-000487 11 December 2007
Introduction
[1] V faces one charge of wounding with intent to cause grievous bodily harm jointly and one charge of robbery alone. The charges arise out of the assault on a security guard in the Glen Innes shopping centre in the early hours of 2
April 2006. At the close of the Crown case Mr V made an application under s 347 Crimes Act 1961 seeking a discharge in respect of both charges on the ground that there was insufficient evidence on which a jury, properly directed, could convict.
[2] There is no issue as to the proper approach to be taken on a s 347 application. The test to be applied is one that reflects the respective functions of the Judge and jury. In Parris v Attorney General1 the Court of Appeal (explaining in R v Flyger2) said:
[13] …There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear that either a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.
[14] It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pre-trial or during the trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear cut in favour of the accused, it should be left for the jury to decide.
[3] In the present case the issue is not one of credibility or weight. Mr Cato, making the application on behalf of Mr V , asserts that the Crown case simply does not contain sufficient evidence on which any reasonable jury could convict. The position is that expressed in R v Galbraith3 (recently referred to by Baragwanath J in R v Harkins4):
1 [2004] 1 NZLR 519 at 521, 521-524
2 [2001] 2 NZLR 721
3 [1981] 2 AllER 1060 at 1062
4 HC AK CRI-2006-044-006243 26 November 2007
…Where the Judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case…
Wounding with intent to cause grievous bodily harm
[4] The assault on the security guard, Mr Little, took place near the Aotearoa Credit Union premises in the Mayfair Place courtyard. Mr Little’s evidence was to the effect that he was assaulted by three different people within moments of one another. Surveillance camera footage showed Mr Little entering the shopping mall at 2:18 am, followed within a minute or so by the accused Daniel Houma and witnesses Afe Pua and Mina Tiariki-Mana and other camera footage shows Mr Little on the ground, having been assaulted, at 2:20 am.
[5] Mr Little was not the only person assaulted that night. Shortly before Mr Little was assaulted (on the evidence perhaps 5-10 minutes before) another man, Mr Martin, had been fatally injured in the nearby Maybury Reserve. Witnesses placed Mr V at the scene but he is not implicated in the assault.
[6] Samuel V and one of his co-accused, Daniel Houma, are cousins. There is no dispute that both of them were present at the Maybury Reserve along with others when Mr Martin was assaulted. Mr Houma faces a murder charge in relation to the assault. Mr V had witnessed the brutal assault on Mr Martin. Evidence was that Daniel Houma and others and had then accompanied those men across the pedestrian crossing on Line Road and into the Glen Innes shopping centre. The Crown says that it would have been apparent to him that Daniel Houma and Peni Kulitapa were in an aggressive mood. He would have seen them threaten two young women standing on Line Road outside the $2 Shop and then turn their attention on Mr Little who was then at the corner of the entrance to the shopping mall. Mr Little’s evidence was that there were three men on the pedestrian crossing and they were making threats of physical violence and shouting that he had better start running.
[7] Afe Pua gave evidence about both incidents. He said that he left the reserve before the accused men and was on the other side of Line Road by the shopping
centre when they came out of the reserve. He said that Mr Houma, Mr Kulitapa and
Mr Lanivia came across the road, that they were swearing at the girls outside the $2
Shop. He then gave the following evidence:
Q:When you went into the shopping centre, what did you see happen after that with the other guys, Houma, Peni Kulitapa, Mr Lanivia, Samuel V . What did they do, did you see?
A: Yep.
Q: Alright, tell us about that? A: Oh.
Q:Did they stay on the other side of the road or did they cross the pedestrian crossing toward the shopping centre?
A: They crossed the road towards the shopping centre.
Q: Was anybody else in or around the shopping centre that you could see?
A: Yep.
Q: Who was that?
A: The security for (interrupted)… Q: Security guy?
A: Yep.
Q: Okay well what did these other guys do? A: Told everyone to run?
Q: They what?
A: Oh Daniel Houma.
Q: Daniel Houma did what? A: Told them to run.
Q: Daniel Houma told the security guard to run? A: Yep.
Q: Did he say why?
A: Nah it just sounded like he was warning. Q: That’s what it sounded like to you?
A: Yep.
Q: Who was with Mr Houma when he did that? A: Peni
Q: Peni?
A: Um…yep those two creeping up? Q: Sorry?
A: Um…Timakoi
Q: Timakoi? A: Yep
Q: He was still with them was he? A: Yep
Q: What about Mr V where was he? A: Yep he was there as well.
Q: With Mr Houma? A: Yep.
[8] Mr Pua then gave evidence that Timakoi Lanivia had crept up alongside Mr Little and swung at him, punching him from the back. Mr Little fell to his knees and then Daniel Houma and Peni Kulitapa began kicking him. At that stage Mr V was ten or more metres away and was fearful that the assault would be similar to what he had witnessed in the Maybury Reserve. He therefore decided to leave and gave evidence as to the last few things that he saw:
Q: So when you took off, stopped looking (interrupted) A: Yep
Q: Where were the other two, that’s Mr Peni Kulitapa and Mr Samuel
V ?
A:Oh Samuel V was standing at the garage door like next, about 2 metres away
Q: How far away?
A: Two metres away from where they were beating the security man up.
Q: So he was two metres away from that when you left? A: Yep.
Q: Peni?
A: He was kicking with it, that time
Q: He was what?
A: Think he was kicking him at that time.
Q: How many kicks did you see Peni give him? A: Two probably two.
Q: How about Houma how many kicks did you see him give him? A: Probably the same.
Q: Two? A: Yep.
Q:What about Lanivia, apart from the first punch did you see him kick the security guy again?
A: Yep he was kicking as well.
Q: Think he was kicking as well? A: Yep.
Q: What part of the body was being kicked? A: Just face and his ribs area.
Q: So were the three of him kicking him at the same time? A: Yep.
Q: What was Mr V doing?
A: I don’t know he was just standing there.
Q:Was he looking at them? Was he pointing at that direction, do you know what I mean?
A: I don’t know, I took off that time.
[9] The witness Mina Tiariki-Mana gave evidence about leaving the scene of the
Maybury Reserve assault and walking to the shopping centre. Her evidence was that
Daniel Houma, Samuel V , Peni Kulitapa and Timakoi Lanivia all went to the shopping centre:
Q:What was the order of people going into the shopping centre? Who went in first from your group?
A: Daniel, Sam, Peni and Timakoi.
Q: Is that the order, Daniel first, Sam then?
A: I know they were all walking at the same time.
[10] She then gave evidence about the assault on Mr Little, implicating Peni
Kulitapa and Timakoi Lanivia.
[11] The Crown case is that Mr V had gone willingly with his co-accused, having seen them viciously attack another man only minutes before, that he must have witnessed them threatening Mr Little with physical violence and that he must have seen Mr Lanivia creeping up towards Mr Little. When the actual assault occurred only a couple of minutes later Mr V , on Mr Pua’s evidence, is only two metres from the assault.
[12] The Crown case does not assert that Mr V himself assaulted Mr Little. Mr Dickey confirmed that he intends to close on the basis that Mr V was a party only under s 66(1) Crimes Act 1961. Mr Cato’s response was that the evidence simply did not support the assertion that Mr V was a party and that his true status that evening was as a passive spectator, having effectively tagged along with his older cousin and the other co-accused and simply been present at the time without offering any specific encouragement or support for what they were doing.
[13] Mr Cato relied on the statement in R v Coney5 as to the conduct required to render a person a party to a crime:
In my opinion, to constitute and aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage
5 (1882) 3 QBD 534
intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not of itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though be might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances afford cogent evidence upon which a jury would be satisfied in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.
[14] Mr Cato submitted that culpability as a bystander required evidence from which a jury could infer that the party by words or deeds had entered into an arrangement whereby he purposefully attended a place knowing that a crime would take place by others. If he or she purposefully attends the crime then he or she is more than a mere spectator. However, Mr Cato submitted that there was no evidence that prior to the assault on Mr Little Mr V had been one of those who had threatened him on the pedestrian crossing or at any other time. He noted that there was no surveillance evidence of Mr V entering the mall and it would seem that the men drifted into the mall separately and not as a group. He noted also the presence of two other witnesses, Afe Pua and Mina Tiarika-Mana both of whom had also witnessed the earlier assault on Mr Martin. They have not been charged with being a party to the assault on Mr Little and nor had others who may have been in the mall as well such as Tevina Fonua. In short, Mr Cato says that there was no evidence that Mr V had done anything to encourage or assist in the assault and had done no more than passively watched which was conduct that could not lead to a conviction by a reasonable jury.
[15] It is true that the evidence against Mr V is limited indeed. He said nothing and did nothing that could be construed as active participation in or support of the assault. On the other hand, there is evidence on which a jury could properly find that he was within close proximity to the three assailants as they crossed the pedestrian crossing threatening Mr Little and that he must have been in a position to see, as Afe Pua did, Timakoi Lanivia start to creep up on Mr Little. As that scene presented itself, a jury could easily find that Mr V knew that the three older men were planning an assault on Mr Little. Judging by the security camera footage which shows a period of only about two minutes elapsing between Mr Little entering the
shopping centre and being assaulted Mr V must have kept within a reasonably close distance of the other men to have been standing within two metres of them as they assaulted Mr Little. The fact that he is not shown on the surveillance footage as entering the mall is not significant, because the cameras did not capture the entire entrance into the mall.
[16] At its highest the evidence, therefore, would show that Mr V appreciated that Mr Little was about to be assaulted and, rather than hanging back, distancing himself from the impending assault or saying anything to discourage, he accompanied the assailants and stood only two metres away from them as they assaulted him. However, even though he may have known what was about to happen to Mr Little and effectively went along to watch, the question must be whether he said or did anything to encourage the others in the assault. When it comes down to it, it is only the difference in proximity to the assault that differentiates Mr V from Mr Pua. There is no evidence on which a jury could find that Mr V actually did or said anything to encourage his co-accused. He is properly characterised as a passive spectator. In the circumstances of this case I do not consider that his mere presence would provide evidence on which a jury could be satisfied that he was encouraging the assault.
Robbery
[17] The charge of robbery relates to Mr Little’s cellphone, which Mr V acknowledges being in possession of at some stage after the assault. The earliest evidence of him having the cellphone came from Mina Tiariki-Mana who said that after the assault everyone walked off. She gave the following evidence in cross- examination from Mr Cato:
Q: And did Sam walk off the same way but on his own? A: Yes
Q:Did you in fact go to the carpark at McDonalds and see there Daniel, Sam, Peni and Timakoi?
A: Was it raining hard?
Q: Were you concerned to find a taxi?
A: Yep.
Q: And in fact was it about that time that Daniel tried to get a taxi but failed to do so because the taxi ran over his leg?
A: Yes
Q: Then did you go to an area known as a tunnel near the train line? A: Yep
Q: Were Daniel, Timakoi, Peni and Sam in that tunnel? A: Yes.
Q: With you? A: Yes.
Q:Did you hear the men talking amongst themselves and saying that they’d got the cellphone from that guy?
A: Yes.
Q:And then shortly after that did you see Sam with it and did you ask him “where did you get that from?”
A: Yeah.
Q: And he simply said “that guy”? A: Yes.
[18] Mr Cato submitted, and Mr Dickey accepted, that there was no evidence as to precisely when and how Mr V had acquired the cellphone. He may have picked it up from the ground following the assault on Mr Little; Mr Little had said that when he was first hit the cellphone went flying out of his hand and that was the last he saw of it. Alternatively, one of the other men involved may have picked it up and later given it to Mr V . It might be possible, as Mr Dickey contends, to infer from the limited evidence on this issue that Mr V ’s answer “that guy” that he was the one who had taken the phone. However, it is clear from Mr Little’s evidence that nobody took the phone directly from him. Whoever took the phone had to have picked it up from the ground after it had flown out of his hand. To prove the charge of robbery the Crown needs to prove not only that Mr V took the cellphone dishonestly knowing that it was not his and intending to permanently deprive Mr Little of it (theft) but also that he used violence (or was party to violence) to overcome the resistance to this theft. Since there is no assertion that Mr V
himself assaulted Mr Little and given my ruling in relation to the wounding with intent to cause grievous bodily harm charge, it is not possible on the evidence for the Crown to show that he did use violence in order to overcome resistance to the theft.
Conclusion
[19] I am satisfied that insufficient evidence exists on which a reasonable jury, properly directed, could find that Mr V was either:
a) A party to the assault on Mr Little; or
b) Guilty of robbery in respect of the cellphone.
[20] The application is therefore allowed in respect of both charges.
P Courtney J
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