Andrew-Dean Kupa-Caudwell v R

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 09 August 2010
• Neutral Citation: [2010] NZCA 357
• Court: Court of Appeal
• Docket Number: CA85/2010
• Date: 09 August 2010

[2010] NZCA 357

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, Stevens and Chisholm JJ

CA85/2010

CA129/2010

Between

ANDREW-DEAN KUPA-CAUDWELL

Appellant

and

The Queen

Respondent

Between

Shaun Mihaka Sullivan

Appellant

and

The Queen

Respondent

Counsel:

P V Paino for Appellant Kupa-Caudwell

C W J Stevenson for Appellant Sullivan

M E Ball for Respondent

JUDGMENT OF THE COURT

• A The appeals against conviction by Mr Sullivan and Mr Kupa-Caudwell are dismissed.

• B The appeal by Mr Kupa-Caudwell against sentence is allowed to the extent that the minimum period of imprisonment of three years is quashed. The sentence imposed by the High Court otherwise remains.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
Factual background	[6]
The Crown case against Mr Sullivan	[10]
The Crown case against Mr Kupa-Caudwell	[11]
Defence case for Mr Sullivan	[12]
Defence case for Mr Kupa-Caudwell	[13]
Conviction appeal — Mr Sullivan	[14]
Summing up and later redirections	[16]
The ability to correct misdirections	[18]
Timing of redirections	[19]
Alleged misdirections	[31]
Directions relating to JL's evidence	[32]
The contentions on appeal	[33]
The directions	[34]
Discussion	[37]
Directions about the co-accuseds' statements	[43]
The relevant directions relating to co-accused's statements	[44]
Mr Walker's admissions	[52]
Submissions on appeal	[53]
Discussion	[57]
Mr Kupa-Caudwell's video interview	[71]
Inferences	[79]
Conviction appeal — Mr Kupa-Caudwell	[84]
Appeal against sentence — Mr Kupa-Caudwell	[90]
The Judge's approach	[90]
The starting point	[94]
Discount for mitigating features	[102]
The imposition of an MPI	[104]

Introduction

1 On 9 October 2009, Paul Irons was found lying unconscious in some bushes in the Triangle Gardens in Featherston. He had been severely beaten and some of his property stolen. Mr Irons never regained consciousness and died several days later.

2 Shaun Sullivan and Andrew-Dean Kupa-Caudwell, along with a third man, Rangi Walker, were charged with the murder of Mr Irons. After a jury trial, Mr Sullivan and Mr Walker were found guilty of murder. Mr Kupa-Caudwell was found not guilty of murder but guilty of manslaughter.

3 Mr Sullivan was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 12 years. Mr Walker was sentenced to life imprisonment with an MPI of 11 years. Mr Kupa-Caudwell was sentenced to six years imprisonment with an MPI of three years. 1

4 Both Mr Sullivan and Mr Kupa-Caudwell appeal their convictions on the basis that the directions of Wild J, who presided over the trial, were inadequate in material respects and led to a miscarriage of justice.

5 Mr Kupa-Caudwell also appeals against sentence on the ground that he was sentenced on an incorrect factual basis leading to a starting point which was too high. Mr Kupa-Caudwell further says the discount for mitigating factors was too low and an MPI should not have been imposed.

Factual background

6 The three accused were at a party in Featherston on the evening of 8 October 2009. Mr Irons was there too but he left earlier. In the early hours of the morning, Mr Irons met up again with the three accused and two other men while on his own in Fitzherbert Street, Featherston. Mr Irons behaved in a rather odd fashion running up to Mr Kupa-Caudwell with his arms waving in the air. Mr Kupa-Caudwell took one,

possibly two, swings at Mr Irons. It is unclear if he connected or not. Mr Irons ran off but was chased and tackled to the ground by Mr Sullivan outside the Fell Museum. Mr Irons got to his feet and ran across the road towards the Triangle Gardens. Messrs Sullivan and Walker chased him and again Mr Irons was brought to the ground where he was kicked. Mr Kupa-Caudwell joined the other two in the Triangle Gardens soon after. All three stood in a group around Mr Irons as he was kicked repeatedly to the body and head.

7 The other two in the accuseds' group, Nepia Poutu and George Murray, stayed away from the beating. Mr Kupa-Caudwell returned to where Mr Poutu and Mr Murray were standing. The assault on Mr Irons continued. Mr Sullivan and Mr Walker soon came over to the other three carrying items of property taken from Mr Irons. Mr Irons was taken from the grassy area into the shrubbery, where he was eventually found. He died on 14 October 2008.

8 The Crown puts its case on the basis that each accused had contributed to Mr Irons' death either as a principal offender or as party. In addition to the eyewitness accounts from Messrs Poutu and Murray, there were video statements from Mr Walker and Mr Kupa-Caudwell as well as admissions by each accused to family members, friends and, in the case of Mr Sullivan, a fellow prison inmate, JL. 2 The Crown also relied on evidence of subsequent conduct. In particular, Mr Sullivan disposed of his clothing and shoes the next day; Mr Kupa-Caudwell took and then used Mr Irons' cellphone before destroying it; and Mr Walker tried to wash the blood from his clothing.

9 What follows is a summary of the Crown and defence cases in relation to each appellant, which we have taken from the Crown submissions on appeal.

The Crown case against Mr Sullivan

10 The Crown relied on the following aspects of the evidence concerning Mr Sullivan:

• (a) He was one of the three Mr Poutu described as being in the immediate vicinity of the beating.

• (b) He had behaved aggressively earlier in the evening and had punched another partygoer in the face.

• (c) Prior to the beating, Mr Sullivan had chased Mr Irons and tackled him to the ground.

• (d) Mr Sullivan made admissions to his brother, Junior Taitapanui, and to his stepfather, Stafford Taitapanui. Mr Sulllivan told his brother that he had said to Mr Irons words along the lines of “You are not going anywhere c…” and then pulled him down before giving him a couple of “hits”. Mr Sullivan also said to his brother that he had stood back and let the other two “go for it on Ironsy”.

• (e) Mr Sullivan asked his stepfather to get rid of a rubbish bag and the shoes he had been wearing. Mr Sullivan acknowledged through his counsel at trial that some of his clothing was in the rubbish bag.

• (f) Mr Sullivan made admissions to his fellow inmate, JL, that he had stomped on Mr Irons' head and that he had got rid of his clothing by giving it to his stepfather because he had blood on his clothes.

The Crown case against Mr Kupa-Caudwell

11 The Crown relied on the following aspects of the evidence:

• (a) Mr Kupa-Caudwell had initiated the violence against Mr Irons by swinging at him.

• (b) Mr Kupa-Caudwell was part of a group seen immediately around Mr Irons whilst he was being beaten on the grass in the Triangle Gardens.

• (c) Mr Kupa-Caudwell's comments in his video statement were consistent with his being in the immediate area at the relevant time, for example, indicating that he had heard Mr Irons' jaw break.

• (d) There was a distinction between his action and that of Mr Poutu and Mr Murray who chose to stay well clear of the beatings.

• (e) Mr Kupa-Caudwell sent text messages to his girlfriend before and after the incident. These included one at around 7 pm which said, “We're going to see if anyone wants to fight later at this party down the road”, one just before 10 pm, “Just seen a mean KO babe” and then one at 1.05am, shortly after the attack, “I just got a crack, it's a mean excuse to come tomorrow”. Finally, his text message sent at 3.30 am read as follows: “I just got a crack and murdered someone”.

• (f) Further texting over the next day or so included a plea to his girlfriend, sent by text message, to destroy earlier messages he had sent from Mr Irons' cellphone to avoid detection.

• (g) Elaine Churcher gave evidence that the next day she overheard Mr Kupa-Caudwell saying to her boyfriend, Mr Poutu, that “Shaun [Sullivan] did most of it and he hadn't done much but he still put some hits in”.

Defence case for Mr Sullivan

12 The defence for Mr Sullivan relied on these main points:

• (a) Mr Sullivan was not a principal offender in what occurred but had been involved in a preliminary way in tackling Mr Irons to the ground and perhaps putting in some initial hits. It was Mr Walker, on his own admission, who had done the stomping and who had delivered the blows.

• (b) Neither Mr Poutu nor Mr Murray could definitively say that Mr Sullivan was involved in the stomping or kicking. Mr Poutu talked about at least one person who appeared to be kicking and Mr Murray said he could not see Mr Sullivan.

• (c) What Mr Sullivan told his brother the next day was consistent with him only having been involved in the initial stages of the beating.

• (d) The jury should not conclude that Mr Sullivan was guilty because he took steps to dispose of his clothing and shoes. Rather, Mr Sullivan panicked.

• (e) Felicia Andrews gave evidence that she had examined Mr Sullivan's shoes while he was asleep still wearing them following the beating. She had seen only mud on them, not blood, consistent with him not kicking or stomping Mr Irons. Further, testing found no blood on the blanket under which Mr Sullivan had been sleeping.

• (f) JL was an unimpressive witness who had distorted what Mr Sullivan had told him in prison. He had used disclosure material provided to him by Mr Sullivan as a basis for falsifying his evidence so as to obtain a reduced sentence for himself.

Defence case for Mr Kupa-Caudwell

13 Mr Kupa-Caudwell's defence was put on the following basis:

• (a) Mr Kupa-Caudwell's alcohol consumption...