Jamie Ngahuia Ahsin v R and Raeleen Matewai Noyle Rameka v R

JurisdictionNew Zealand
JudgeElias CJ,McGrath,Glazebrook,Tipping JJ,McGrath J,William Young J
Judgment Date30 October 2014
Neutral Citation[2014] NZSC 153
Docket NumberSC 96/2012
CourtSupreme Court
Date30 October 2014
Between
Jamie Ngahuia Ahsin
Appellant
and
The Queen
Respondent
Between
Raeleen Matewai Noyle Rameka
Appellant
and
The Queen
Respondent

[2014] NZSC 153

Court:

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

SC 96/2012

SC 73/2013

IN THE SUPREME COURT OF NEW ZEALAND

Appeal in respect of the appellants' convictions under s66 Crimes Act 1961 (CrA) (parties to offences) for murder — appellants had become involved in altercation with members of rival gang — victim did not belong to a gang but had been wearing a red sweatshirt which was the rival gang's colour — principal offender attacked victim on the street and hit him with an axe — appellants had been present and were seen to help in attack — witnesses heard a female voice calling out to get in the car and go — whether the Judge's direction to the jury as to party liability sufficiently differentiated between liability under s66(1) and s66(2) CrA — whether s66(2) CrA applied where the offence that occurred was an intended offence, or only to offences that were not intended by the party but that were known to be a probable consequence — whether the appellants had withdrawn from the offending — whether there was a requirement for a unanimity direction.

Counsel:

C W J Stevenson and E A Hall for Ahsin

R M Lithgow QC and E A Hall for Rameka

J C Pike QC (on 11 March 2014), F Laracy and J E Mildenhall for Respondent

JUDGMENT OF THE COURT

The appeals are allowed, the appellants' convictions for murder are quashed and new trials are ordered.

REASONS

Para No.

Elias CJ

[1]

McGrath, Glazebrook and Tipping JJ

[45]

William Young J

[205]

Elias CJ
1

The appellants were convicted after trial of the murder of Paul Kumeroa. The Crown case was that they had either aided or encouraged the principal offender, Clarke McCallum, in an assault with murderous intent or had participated with him in an unlawful common purpose (a plan to assault members of a rival gang) in which killing with murderous intent was known to be a probable consequence. On these alternatives, they were liable as parties under s 66(1)(b) or (c) and s 66(2) of the Crimes Act 1961. I agree with McGrath, Glazebrook and Tipping JJ that the appeal to this Court should be allowed because of inadequacies in the summing up of the trial Judge. On that matter, dispositive of the appeal, I state my reasons shortly because they do not differ in substance from the reasons delivered by McGrath J and because his full description of the summing up makes it unnecessary for me to set it out.

2

In addition, I address two further grounds of appeal: whether withdrawal by a secondary party is properly treated as a defence; and the need for jury unanimity in a case put on alternative bases under the party provisions contained in s 66 of the Crimes Act. It is strictly unnecessary to determine these points because the appeal is to be allowed on another ground. Since the issues raised are ones of some difficulty, it might be thought that they are better left for a case where it is necessary to decide them. I indicate my position on each briefly because the case must be sent back for retrial where the points are likely to arise again, and because they are matters dealt with in reasons of other members of the Court with which I am not in complete agreement.

Background
3

Clarke McCallum and Daniel Rippon are members of Black Power. Jamie Ahsin, one of the appellants, was in a relationship with Mr Rippon. The other appellant, Raeleen Rameka, was associated with Black Power and was a friend of Ms Ahsin.

4

Mr McCallum and Ms Ahsin were involved in an incident at a supermarket in the early afternoon of the day of the fatal assault, which seems to have involved some intimidation or provocation on the part of people thought to be associated with the Mongrel Mob. Shortly after the incident, after Mr McCallum and Ms Ahsin had left the supermarket, the police (to whom the incident had been reported) stopped a Mitsubishi Galant vehicle driven by Ms Ahsin in which Mr McCallum and Ms Rameka were passengers. On search of the vehicle, no weapons were found but the police noted the presence of a large spanner.

5

The Crown alleged that at about 8 pm that night Ms Ahsin drove Mr McCallum, Mr Rippon and Ms Rameka to the North Mole, at the mouth of the Whanganui River, flashing the headlights of the Mitsubishi Galant at other vehicles. At the river mouth, the four were said by witnesses to have intimidated the occupants of parked cars, identifying themselves as Black Power adherents and making contemptuous reference to “dog shits” (as Mongrel Mob members are referred to by Black Power), although there is no suggestion that those at the Mole were members of the Mongrel Mob. There was evidence from three witnesses that Mr Rippon threatened violence, while waving a knife.

6

Later, Ms Ahsin drove the others to a house in Gibbons Crescent they had been at earlier in the day where a party was underway. Ms Rameka accosted a man in a vehicle outside the house and accused him of being a member of the Mongrel Mob who had assaulted her seriously on another occasion. The occupants of the vehicle drove away, but not before Mr McCallum had thrown a spanner at the car, breaking a window. All four were later charged with intentional damage arising out of this incident, although only Mr McCallum was convicted. The jury acquitted Ms Ahsin and Ms Rameka, who had been charged as parties under s 66(2) on the basis of the same common purpose of assaulting or intimidating members of the Mongrel Mob relied on in respect of the charge of murder.

7

After leaving the party shortly before 10 pm in the Mitsubishi Galant, Mr Kumeroa was seen walking along Cross Street. It was the Crown case that because he was wearing a red hooded sweatshirt and it was suspected that he was associated with the Mongrel Mob (although he was not), the car driven by Ms Ahsin executed a U-turn to stop beside Mr Kumeroa. Some of those in the car, including women, were said by witnesses to have then got out of the car. There was yelling. When Mr Kumeroa, who was intoxicated, started to get into the back seat of the car, he was pulled and pushed out, including, the Crown claimed, by Ms Rameka (although none of the participants in the assault was able to be identified by witnesses). The men were said to have punched Mr Kumeroa. Witnesses described a woman yelling at the men to get in the car and leave, and words such as “that's enough”, “let's go”. The person or persons who shouted out were not identified. Although Mr McCallum went back to the car, the Crown case was that he returned almost immediately to Mr Kumeroa and struck him with a short-handled axe, causing the blows that proved fatal. After Mr Kumeroa fell to the ground, witnesses described the female voice continuing to urge the others to get back into the car and leave. One witness reported that she had said that the police would be coming. Ms Ahsin then was said to have driven the others away.

8

At the trial, the Crown case was that Mr Rippon and the appellants were parties to the murder of Mr Kumeroa either by reason of their assistance and encouragement of him in the assault at Cross Street or by reason of their participation in a common purpose that evening to intimidate and assault members of the Mongrel Mob, in the carrying out of which purpose killing with murderous intent (intentional killing or an intention to inflict injury likely to cause death while being reckless as to whether death ensued) was known to be a probable consequence. They were said to have had knowledge of the likelihood of recourse to weapons, as demonstrated by the waving of the knife by Mr Rippon at the car park at the river mouth. The Crown case was that the common purpose of the group in intimidating and assaulting those linked with the Mongrel Mob was prompted by the first altercation at the supermarket and was evidenced by the behaviour at the river mouth and in the verbal and physical assault on those in the car outside the party. On the Crown case, it was because of this common purpose that Mr Kumeroa had been accosted and assaulted.

9

Mr Rippon was said to have assisted in and encouraged the murderous assault by Mr McCallum by participating in the assault on Mr Kumeroa. The two women were also said to have assisted and provided encouragement to Mr McCallum. Ms Ahsin had driven the car to stop it beside Mr Kumeroa, when he was spotted. She was said to have yelled encouragement. Ms Ahsin had also driven the others away after the fatal assault. Ms Rameka, too, was said to have encouraged the assault by yelling to Mr McCallum at the time of the assault on Mr Kumeroa. It was suggested that she had also assisted Mr McCallum by helping push Mr Kumeroa from the car.

10

At the trial none of the accused gave evidence. The defence for Ms Rameka was that she was not in the car either at the river mouth (when the knife was produced), or when Mr Kumeroa was assaulted. Her counsel explained the altercation at the party, in which she was involved, as having arisen out of the earlier assault on her by the individual in the car, rather than as part of an enterprise to attack members of the Mongrel Mob more generally (as the Crown case had the common purpose). Ms Ahsin, too, put the Crown to proof of her presence in the car and any knowledge that there were weapons at hand. Her case, as put by her counsel, also entailed denial that there was any common purpose in attacking members of the Mongrel Mob. Rather, it was suggested by her counsel that the four were having a night out drinking and socialising with friends. Defence counsel for the women suggested that the actions of the woman or women who had called to the men to get back into the car indicated that whoever spoke was trying to stop matters going as far. This is the evidential foundation on which the appellants...

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