George v R
| Jurisdiction | New Zealand |
| Judge | French J |
| Judgment Date | 10 March 2021 |
| Neutral Citation | [2021] NZCA 56 |
| Court | Court of Appeal |
| Docket Number | CA703/2017 |
| Date | 10 March 2021 |
French, Whata and Mander JJ
CA703/2017
CA711/2017
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Evidence — appeal against convictions for murder entered — application to adduce new evidence — murderous intent — recklessness — appellants were gang members and were convicted or killing a gang prospect — sought to adduce hearsay evidence regarding overheard conversations that several assailants were responsible — whether the new evidence was fresh, credible and cogent — whether the Judge's direction on murderous intent and the question trail were adequate — use of composite question trails — Crimes Act 1961
G C Gotlieb and H Z L Krebs for Appellant George
M W Ryan and J E Tulloch for Appellant Solomon
L C Preston for Respondent
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A The application for leave to adduce the evidence of Fairlane Michelle Henare is declined.
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B The appeal brought by Vincent Mana George (CA703/2017) is dismissed.
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C The appeal brought by Denis Robert Henry Solomon (CA711/2017) is dismissed.
(Given by French J)
| Para No | |
| Introduction | [1] |
| Background | [3] |
| The Crown case at trial | [10] |
| The defence at trial | [31] |
| Grounds of appeal | [38] |
| Mr Solomon's appeal | [38] |
| Mr George's appeal | [41] |
| The new evidence | [43] |
| Analysis of the new evidence | [61] |
| Mr Putt's hearsay statement | [77] |
| Admissibility of the evidence of Mr Kamoto | [93] |
| Admissibility of statement made to police by Mr Solomon on 23 February 2016 | [106] |
| Closing address of prosecutor | [121] |
| The Judge's direction on intent and the question trail | [127] |
| Summary of conclusions | [152] |
| Outcome | [154] |
Mr George and Mr Solomon are two patched members of the Tribesmen gang. A High Court jury found them both guilty of the murder of a 24-year-old gang prospect called Clayton Ratima.
Both men now appeal their convictions.
At about 1.20 pm on Sunday 21 February 2016, two Tribesmen gang members driving a white Honda Odyssey motor vehicle dropped an unconscious Mr Ratima off at an Auckland hospital.
The serious nature of his injuries prompted medical staff to alert the police.
One of the two men who had driven the silver Honda Odyssey was still at the hospital when the police arrived. He claimed they had found Mr Ratima lying on the roadside. The other man had already left the hospital in the car which was later discovered abandoned.
Mr Solomon was the registered owner of the vehicle.
Mr Ratima was put on life support, pronounced brain dead the following day and on Wednesday 24 February 2016 after his family had had a chance to say their goodbyes, he was taken off life support.
According to the pathologist who undertook the post mortem, Mr Ratima had sustained multiple blunt force injuries to his neck and head, consistent with approximately eight discrete blows inflicted by fists and/or feet. In the pathologist's opinion, it was apparent that significant force had been used because of the nature of the injuries including fractures to two vertebrae in Mr Ratima's neck. She said the ultimate cause of death was subdural and intra-brain bleeding and herniation caused by the blunt force trauma to the head and neck.
A police investigation was launched. It was impeded by a lack of co-operation from gang members. But a breakthrough came when a friend of the appellants changed his story and implicated the appellants. They were arrested in November 2016.
Evidence was given that at around 3 pm on Saturday 20 February 2016 Mr Ratima started his 24-hour gate duty shift at the Tribesmen gang pad. During the ensuing hours there were various comings and goings at the pad.
In the afternoon, a number of gang members including the appellants left the pad to attend a concert. A male friend of Mr Ratima and two females stayed behind with him. At some point the two females departed and Mr Ratima and his friend were joined by a second male friend. The two male friends left the pad at around 11 pm that night and said Mr Ratima was fine. At about the same time as they left, a Mr Paruru arrived. He was a patched member and also the person for whom Mr Ratima was prospecting. He and Mr Ratima were the only people at the pad. Mr Paruru left the pad at around 3 am on Sunday morning leaving Mr Ratima on his own. Mr Paruru testified that when he left at 3 am, Mr Ratima was fine.
According to the Crown, about an hour and a half after Mr Paruru's departure, the appellants returned to the pad, the fatal assault taking place sometime between 5 am and 5.18 am. It was a fast, frenzied attack concentrated on the head and neck of a man the appellants knew could not fight back. The gang code was that when being hit by a patched member, prospects were not allowed to fight back.
The two appellants were jointly charged with murder. On the Crown evidence, it was not clear which of them had inflicted the fatal blows and accordingly each was charged on the basis of being either the principal offender or a secondary offender who had assisted the other. 1
The Crown did not seek to argue that the appellants had intended to kill Mr Ratima. Rather, it relied on the form of murderous intent under s 167(b) of the Crimes Act 1961, namely that either (a) each intended to inflict bodily injury that was known to them to be likely to cause death and were reckless whether death ensued or not or (b) knew those factors applied to the other. 2
The key witness for the Crown was a Mr Te Hariona Paul Grace, known as “TH”. He claimed to have been present when the fatal assault took place. As the Crown prosecutor acknowledged in her closing address, without TH's evidence there would not be a case against the appellants.
TH was not a gang member himself but he knew Mr Solomon and Mr George. He described them as “friends” and also said he was a “real close” friend of Mr George's younger brother Sid. TH and Sid had been at school together.
TH's evidence was as follows.
He had met up with Mr George and Mr Solomon at a night club sometime around midnight Saturday 20 February 2016. Messrs George and Solomon had been to a concert. We pause here to interpolate that another witness who knew both the appellants and TH was also at the club and saw the three of them there. In the early hours of Sunday morning, TH left the night club and travelled to the Tribesmen gang pad with the appellants and a third man whom he did not know. TH was drunk and fell asleep in the car.
Polling data from cellphone towers suggest the journey to the gang pad took place between 3.37 am and 4.39 am on Sunday 21 February 2016. Polling data from Mr George's phone shows him arriving in the vicinity of the pad at 4.39 am.
TH says he was woken up at the gang pad by Mr George saying to him “this guy wants a fight”. “This guy” was Clayton Ratima who had been on gate duty all night at the pad. TH knew Clayton Ratima. He did not remember anyone else being at the pad apart from Mr Ratima and the other occupants of the car he had travelled in, that is the two appellants and the unknown man.
TH told them he did not want to fight and flailed around with Mr Ratima while Messrs Solomon and George swore at them. TH described the fight as “soft” and “messy” and “all over the place”. He was unclear whether he had connected with Mr Ratima. TH said he eventually stopped saying to the appellants he “didn't come here for this shit.” Mr Solomon and Mr George told him not to be a fag. As TH walked away, the two of them rushed past him in the direction of Mr Ratima and “launched” themselves at the latter with a punch. TH explained that by “launching” he meant “leaping” at Mr Ratima to punch him. TH saw one punch being thrown. He was not sure by which of the two men but said they were the only two launching at Mr Ratima.
TH then walked away. Based on what he had seen and heard, he believed Mr Ratima was about to get a hiding and he did not want to be any part of it. As he was walking away, he could hear scuffling, yelling and swearing.
After what seemed to TH like just a few seconds or minutes, Mr George and Mr Solomon and the unknown man returned to the car from the direction of the fight and left with TH. The unknown man was driving.
At around 5.18 am a Lucinda McDougall arrived at the pad to meet a gang member. The significance of her evidence from the Crown's perspective was that she saw men leaving, observed strange conduct on the part of the gang member she was meeting which suggested something had happened and also saw a person lying by the back fence who looked as though he had passed out. There was a bottle lying beside him — deliberately staged, the Crown argued, to make it look as if the man on the ground had been drinking. Her description of the person who opened the gate did not match Mr Ratima. Yet, his gate duty would not have finished until later that day.
At 5.27 am — just under ten minutes after Ms McDougall's arrival — Mr George sent a text to a third party asking that person to come and pick him up.
Ms McDougall herself left the pad sometime before 6.28 am. Another woman Ms Sunitta McClutchie arrived at around 7 am. She too saw a man lying on the ground by the fence. She saw he had a blanket on him and could see his face. He looked as if he was sleeping.
In inviting the jury to accept TH's account of what had happened sometime between 5 am and 5.18 am as being reliable, the Crown submitted it was consistent with the medical evidence indicating a swift, targeted attack.
TH's account was also said to be...
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