Edmonds v R

• Jurisdiction: New Zealand
• Judge: William Young J
• Judgment Date: 20 December 2011
• Neutral Citation: [2011] NZSC 159
• Court: Supreme Court
• Docket Number: SC 57/2011
• Date: 20 December 2011

Mahana Makarini Edmonds

and

The Queen

[2011] NZSC 159

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 57/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal from Court of Appeal (“CA”) decision — appellant (“A”) found guilty of manslaughter at trial on basis of party liability under s66(2) Crimes Act 1961 (parties to offences) — A pleaded guilty to a charge of participation in an organised criminal group — CA held A's liability did not depend on his having knowledge of actual weapon used — whether judge required to direct jury that A could only be found guilty if it was sure that A had had knowledge of actual weapon used.

Counsel:

A R Laurenson and H A Froude for Appellant

D B Collins QC, M J Inwood and P D Marshall for Crown

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

The appeal

1 On the night of 15 November 2008, Matiu Pahau fatally stabbed Peri Niwa. As a result, Pahau and three other men, Rangi Brown, Adrian Fenton and the appellant, were charged with murder, participating in an organised criminal group with the objective of committing serious violent offences and committing a crime with a firearm. At the conclusion of their trial before Asher J and a jury, Pahau was found guilty of murder, and the appellant and the other two men were found guilty of manslaughter. They all either pleaded guilty to, or were convicted of, the other offences. A fifth man who was involved was not able to be charged by the police as he was outside New Zealand.

2 All four men appealed unsuccessfully to the Court of Appeal against conviction and sentence. 1 The appellant's further appeal to this Court is confined to his conviction for manslaughter and is based on a single challenge to the trial Judge's jury directions which arises in this way. The appellant was found guilty of manslaughter on the basis of party liability under s 66(2) of the Crimes Act 1961. The Crown alleged that the appellant and the other four men had formed the common purpose of inflicting serious violence on a group of people of whom the deceased was one and that Pahau had killed him in the course of prosecuting that common purpose. The appellant's complaint is that the Judge was required to, but did not, direct the jury that they could only find the appellant guilty of manslaughter if sure that the appellant had known that Pahau was carrying the specific weapon used – a knife. The issue raised by this appeal is of the same kind as those addressed in a line of decisions which are sometimes referred to as the “knowledge-of-the-weapon-cases. We will discuss these decisions later in these reasons.

The key facts

3 In November 2008, the deceased was working in New Plymouth with a group of scaffolders who came from out of town. They had Mongrel Mob connections 2 and their presence in New Plymouth displeased local members of the Black Power gang, including the appellant and the other four men who were to be involved in the offending.

4 On the night of 15 November 2008 the deceased and other scaffolders went from 1A Squire Place, New Plymouth, where they had been visiting, to a party at a house nearby. Learning of their presence at the party, the appellant summoned the other four men to a meeting at his house. After the meeting they drove off towards

Squire Place. The appellant was driving. According to Pahau's evidence at trial, he (that is Pahau) was carrying a knife. Also in the car was a police scanner, a blunt instrument in the nature of a baseball bat, a gun which was in the boot and perhaps another knife. The gun had been placed in the boot by Fenton after the meeting at the appellant's house

5 When they arrived in the vicinity of Squire Place, there was a police car present. So the appellant drove off. He drove back some time later and arrived just as the deceased and two or three others were making their way back from the party to 1A Squire Place. The appellant stopped the car at the top of the driveway to 1A Squire Place and the five men in the car all got out. The appellant told the others to “go, go, go”. He removed the gun from the boot and stayed by the car holding the gun.

6 The deceased's group fled up the driveway to the house at 1A Squire Place and were pursued by the other four Black Power members. The Crown case was that the deceased was the last of his group and Pahau caught up with him just as he was trying to, or about to, get into a window of the house. There he was stabbed by Pahau. He managed to get into the house but died shortly afterwards. It appears that the other three Black Power members had abandoned the chase by this stage.

The case against the appellant at trial

7 The case against the appellant in relation to both murder and manslaughter was based on s 66 of the Crimes Act 1961. Section 66 provides:

66 Parties to offences

• (1) Every one is a party to and guilty of an offence who—

  • (a) actually commits the offence; or

  • (b) does or omits an act for the purpose of aiding any person to commit the offence; or

  • (c) abets any person in the commission of the offence; or

  • (d) incites, counsels, or procures any person to commit the offence.

• (2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

8 At the start of the trial the Crown case against the appellant was based on both subsections of s 66 but by the end of the case only s 66(2) was relied on.

9 The common purpose alleged by the Crown in relation to the committing a crime with a firearm, murder and manslaughter counts was:

To pursue the group of scaffolders, and to cause serious violence to somebody in the group of scaffolders, and to assist each other with that purpose.

This common purpose was closely associated with the charge of participation in an organised criminal group to which the appellant pleaded guilty. This charge alleged that the appellant and the others had the objective of committing “serious violent offences”, 3 meaning offences punishable by imprisonment for seven years or more involving:

• (i) loss of a person's life or serious risk of loss of a person's life; or

• (ii) serious injury to a person or serious risk of serious injury to a person; …

The appellant's plea of guilty to the organised criminal group charge therefore acknowledged that he and two or more of his co-defendants had the objective of killing or putting at serious risk of death, or seriously injuring or putting at serious risk of serious injury, the deceased and his companions. It follows that when addressing the appellant's s 66(2) culpability for the death of the deceased, the jury was inevitably going to accept that that he had been a party to the common purpose alleged by the Crown.

10 The Judge was of the view that the appellant could be found guilty of manslaughter only if the jury were satisfied that he appreciated that the killing of

somebody was a probable consequence of the prosecution of the common purpose. It is arguable that this was unnecessary, as we will explain later. For present purposes, it is sufficient to note that we are leaving for another day resolution of the issue whether the Judge was correct and we will address this appeal on the assumption that he was

11 The Judge's approach to what the Crown had to establish to secure the appellant's conviction for manslaughter is apparent from the question sheet which was supplied to the jury and was in these terms:

Has the Crown proven beyond reasonable doubt:

• (a) That Mr Edmonds and Mr Pahau with or without others agreed to carry out a common unlawful purpose on 15 November 2008, namely to pursue the group of scaffolders, and to cause serious violence to somebody in the group of scaffolders, and to assist each other with that purpose;

  If “Yes”, go to Question (b). If “No”, find him not guilty of manslaughter.

• (b) That Mr Edmonds knew that a killing was a probable consequence of the carrying out of the unlawful common purpose referred to in 2(a)?

  If “yes”, find him guilty of manslaughter. If “no”, find him not guilty. Either way, your deliberations will be at an end on Count 1 in relation to Mr Edmonds.

Notes

• 1. In this context something will be a “probable consequence” if there is a real and substantial risk of the consequence occurring, in the sense that it is something that could well happen, in the course of carrying out the common unlawful purpose.

• 2. You will only find that Mr Edmonds had the requisite knowledge if you are satisfied that he knew that Mr Pahau was carrying a weapon at the time that he and Mr Pahau began to carry out the common unlawful purpose.

12 The focus of the present appeal is whether the Judge should have gone further than he did in note 2 above and directed the jury that they could only find the appellant guilty if he knew that Pahau had a knife. We have some reservations as to whether there was, in the factual context of this case, much difference in substance between the direction as given and the direction which the appellant maintains should have been given. 4 We will, however, address the appeal on the basis that a “knowledge-of-the-knife” direction would, in fact, have more been favourable to the appellant than the direction which was given.

13 In a ruling (No 5) delivered on 4 May 2010, in advance of the summing-up, the Judge recorded why he was going to shape the issues as he did. In the course of this ruling, Asher J discussed the judgment of the Court of Appeal in R v Vaihu. 5 That case was a sequel to a fracas which had resulted in one of the victims receiving catastrophic injuries as a result of blows struck with a blunt...