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

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,Glazebrook,Tipping JJ,McGrath J,William Young J
Judgment Date30 October 2014
Neutral Citation[2014] NZSC 153
Docket NumberSC 96/2012
Date30 October 2014

[2014] NZSC 153

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 96/2012

SC 73/2013

Between
Jamie Ngahuia Ahsin
Appellant
and
The Queen
Respondent
Between
Raeleen Matewai Noyle Rameka
Appellant
and
The Queen
Respondent
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

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that were not intended by the party but that were known to be a probable consequence — whether the appellants had withdrawn from the offending — whether there was a requirement for a unanimity direction.

Held: For the conviction of a person as a party to an offence under s66(1)(b) CA, proof was required of an action by that person that aided another to commit the offence. Such action had to be deliberately taken, with the intention that the conduct would aid the principal offender in their criminal actions, the essential aspects of which had to be known to the assisting person. What was essential included both physical and mental aspects of that person's conduct. Section 66(1) CA concerned conduct providing assistance or encouragement that could be complete prior to commission of the crime for which it was provided.

A full explanation of the legal elements of s66(1)(b) CA would set out that the Crown had to prove beyond reasonable doubt that:

a) the offence to which the defendant was alleged to be a party was committed by a principal offender; and

b) the person alleged to be a party assisted the principal offender in the commission of the crime, by words or conduct or both; and

c) the person alleged to be a party in fact intended to assist the principal offender to commit that particular offence; and

d) the person alleged to be a party knew both the physical and mental elements of the essential facts of the offence to be committed by the principal offender.

The Judge had outlined the first two elements fully in both the summing up and in the question trail. But the remaining two elements were not addressed. The legal requirement that a person act with the intention of assisting or encouraging the principal offender was discussed in summing up but omitted by the Judge from the question trail. That was unfortunate because the jury were entitled to think that by working through the written material provided to them they would have considered all the matters that they were required to decide. It was therefore important that the question trail be both accurate and appropriately comprehensive.

In relation to the requirement of knowledge of the essential facts under s66(1) CA, the Judge's oral explanation referred only to physical aspects of the offending. No direction had been given of the requirement of knowledge of the essential mental aspects of the principal offender's conduct, in particular, his intention or recklessness in carrying out the assault.

As a result of these deficiencies, the jury had not given adequate assistance as to the meaning and necessity of the legal elements of party liability under s66(1) CA.

Under s66(2) CA, proof was first required that the defendant formed a common intention with one or more others to prosecute an unlawful purpose and to assist in doing that. Each participant in such a common purpose would become liable as a party if one of the others committed an offence while prosecuting the common purpose, whether or not that offence was an intended outcome, as long as that offence was known by the participant to be a probable consequence of the prosecution of that purpose.

Common purpose liability was a “wider principle” that was not confined to cases where the intended offence was committed. Nor were intended offences to be excluded from its ambit. The offence that was intended by the participants fell naturally within the scope of the words in s66(2): “every offence committed by any one of them … that … was known to be a probable consequence”.

Parliament could not have contemplated that s66(2) was confined to offences other than those intended at the time of entry into the common purpose. If that were so, there would be circumstances where participants in a common purpose resulting in the exact crime intended could not be charged under s66 at all, because assistance or encouragement could not be attributed with certainty to any individual. Such participants were at least as culpable as those involved in a common purpose that resulted in an unintended but foreseen offence. Bouavong v R did not correctly state New Zealand law on s66(2) and the long standing judgment in R v Currie was preferred.

Therefore, in order to establish party liability under s66(2), the Crown had to prove beyond reasonable doubt that:

(a) the offence to which the defendant was alleged to be a party was committed by a principal offender; and

(b) there was a shared understanding or agreement to carry out something that was unlawful; and

(c) the person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal; and

(d) the offence was committed by the principal in the course of pursuing the common purpose; and

(e) the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This required foresight of both the physical and mental elements of the essential facts of the offence.

The Judge had not referred orally, other than very briefly in passing, to the need for knowledge that the offence was a probable consequence. Rather, the Judge had explained that the offence committed must have been a probable consequence, which implied a more objective standard.

The Judge's direction to the jury in relation to element (e) was also deficient in that it had only identified that it was necessary, in order to be liable for murder as a party under s66(2) CA, for a defendant to be aware that a “killing” was a probable consequence. That had not specifically identified that what needed to be foreseen (or intended) included both the physical and mental essential facts of the offence, including murderous intent.

In relation to s66(2) CA the jury had not been given adequate assistance as to the meaning and necessity of the legal elements of party liability.

Withdrawal was to be recognised as a true defence under the common law in respect of both s66(1) and (2). Common law defences remained available in New Zealand but applied only to the extent that they were not altered by or inconsistent with legislative provisions. The common law withdrawal defence was not excluded by the CrA. Recognition of withdrawal as a defence did not conflict with the language of s66, and it would not undermine the operation of the elements of party liability.

There were two requirements of the common law defence of withdrawal in New Zealand. First there had to be conduct, whether words or actions, that demonstrated clearly to others withdrawal from the offending and the withdrawing party had to take reasonable. Secondly there had to be sufficient steps to undo the effect of participation or to prevent the crime.

In deciding whether what had been done by way of withdrawal was reasonable and sufficient in the circumstances of the case, particular consideration had to be given to the nature and degree of assistance or encouragement that had been given and the timing of the attempted withdrawal in relation to the perpetration of the offence.

The common law defence of withdrawal had to be put to a jury in relation to s66(1) CA and s66(2) CA where there was evidence that indicated the reasonable possibility of the availability of the defence. It would often be helpful to direct the jury to consider whether it was reasonably possible that:

(a) the defendant demonstrated clearly, by words or actions, to the principal offender that he or she was withdrawing from the offending before the offence was committed;

(b) the defendant took steps to undo the effect of his or her previous involvement or to prevent the crime;

(c) the steps taken by the defendant for those purposes amounted to everything that was reasonable and proportionate, having regard to the nature and extent of the defendant's previous involvement;

(d) the steps taken by the defendant were timely, in the sense that the defendant acted at a time when it was reasonably possible that he or she may be able either to undo the effect of his or her prior.

In the first two parts of his summing up, the Judge had explained to the jury that they had to consider whether or not the appellants had withdrawn from the common purpose alleged in relation to s66(2) CA. The question trail provided to the jury had also directed them to consider whether any of the defendants had withdrawn from the common purpose at the time the fatal injuries were inflicted.

In relation to s66(2) CA, the trial Judge had expressly directed the jury that they had to be satisfied that each appellant had not effectively withdrawn from the unlawful common purpose before the fatal injuries were inflicted. The trial Judge had not, however, addressed the...

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