Jesse-James Winter v R

• Jurisdiction: New Zealand
• Judge: O'Regan,Ellen France JJ
• Judgment Date: 13 September 2019
• Neutral Citation: [2019] NZSC 98
• Court: Supreme Court
• Date: 13 September 2019
• Docket Number: SC 102/2018

[2019] NZSC 98

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Winkelmann CJ, O'Regan, Ellen France, Williams and Arnold JJ

SC 102/2018

Jesse-James Winter

Appellant

and

The Queen

Respondent

Counsel:

A J Bailey and E Huda for Appellant

C A Brook and Z A Fuhr for Respondent

Criminal — appeal against conviction as a party on charges of wounding with intent to cause grievous bodily harm — admissibility of text message sent by a co-conspirator against a person who was not part of the joint enterprise at the time the statement was made — lesser offence not offered to the jury by the Judge — Evidence Act 2002

Appeal by Winter (“W”) against a Court of Appeal (“CA”) decision which upheld his conviction in the District Court (“DC”) as a party on two charges of wounding with intent to cause grievous bodily harm under s66(2) Crimes Act 1961 (“Crimes Act”) (parties) and one charge of male assaults female. There was no conspiracy charge but s22A Crimes Act (admissibility of hearsay statement against defendant) applied on the basis that the offending had involved a joint enterprise. Four people were involved in the incident but the other two, Hanson (“H”) and McGrath (“M”) had pleaded guilty. The complainants were not the intended targets of the common plan. W appealed on grounds that a text message “arming up to dn wht we do” (“arming up to do what we do”) sent by H to his girlfriend to show there was a common intention to carry out a serious assault had been wrongly admitted under the co-conspirators' exception to the rule against the admission of hearsay evidence, set out in s22A EA because it was sent before W had become part of the joint enterprise, or alternatively that the prejudicial effect of the arming up text outweighed its probative value and it should therefore have been excluded under s 8 EA (general exclusion). W also appealed on the ground that the DC trial Judge had erred in not directing the jury to consider an included lesser offence

The issues were: whether the arming up text should have been admitted under s22A EA and whether the Judge had erred by not offering a lesser offence to the jury.

The Court held that there was nothing in s22A EA that limited the application of the provision to statements made after a defendant joined a joint enterprise. Section 22A EA was closely based on the articulation of the law in R v Messenger [2011] 3 NZLR 779 which made it clear that a statement made by a co-conspirator before the defendant against whom it was offered in evidence joined the joint enterprise, may be admitted only for a limited purpose. It could not be led to prove the defendant's participation in the joint enterprise.

The “arming up” text was part of an exchange of a domestic nature with H's girlfriend who was not part of the joint enterprise. The statement could not be seen as truly in furtherance of the joint enterprise. The DC had erred in finding the arming up text was a statement made in furtherance of the joint enterprise. It should not have been admitted in evidence against W under s22A EA. The direction given by the Judge which emphasised that the jury could not use the arming up text to prove that W had known that H had a knife had neutralised any prejudice that might have arisen from the admission of the arming up text. The admission had not led to a miscarriage of justice as defined in s232(4) Criminal Procedure Act 2011 (“CPA”) (first appeal court to determine appeal – miscarriage of justice).

The leading case on included charges was the Court of Appeal decision R v Mokaraka [2002] 1 NZLR 793 which held that the relevant test was a matter of discretion as to what was necessary in the interests of justice. There had to be a live issue as to whether no more than the elements of the lesser charge would be proved. The question of lesser verdicts need not be addressed if it simply had not arisen on the way in which the case was presented to the Court. The CA said that the threshold for appellate intervention was limited to those situations where the Court was “satisfied that the jury may have convicted out of a reluctance to see the defendant get away with what, on any view, was disgraceful conduct”. In that respect the Court applied the approach in R v Maxwell [1990] 1 WLR 401 (HL) which was longer followed in the United Kingdom. It was not helpful to describe the decision whether to leave an included charge as a discretion, as Mokaraka did, because if the prerequisites for leaving the included charge were met, it would be necessary to put that charge. The description of the threshold for appellate intervention in Mokaraka reflected the Maxwell approach which should no longer be applied.

The interests of justice had not required leaving an included charge. For W to have been convicted as a party to the wounding charge he needed to have knowledge of the knife and if he had that knowledge, then he was properly convicted as a party to that charge.

The appeal was dismissed.

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

(Given by O'Regan and Ellen France JJ)

Table of Contents

	Para No.
Introduction	[1]
Background	[4]
Crown case	[14]
First point of appeal - admissibility of text message	[17]
Section 22A	[18]
District Court	[22]
Court of Appeal decision	[28]
Issues	[30]
Text sent before Mr Winter was part of the joint enterprise	[34]
Was the arming up text sent in furtherance of the joint enterprise?	[41]
Was the arming up text inadmissible under s 8?	[53]
Did the wrongful admission of the arming up text lead to a miscarriage of justice?	[55]
First point of appeal: conclusion	[59]
Non-hearsay statements	[60]
Second point of appeal — included charges	[64]
The position in New Zealand	[69]
The position in the United Kingdom	[74]
The relevant statutory provisions	[75]
The relevant authorities	[77]
Canada	[98]
Australia	[102]
Application of Mokaraka in New Zealand	[107]
A different approach in New Zealand?	[135]
The principles to be applied	[141]
This case	[150]
Second point of appeal: conclusion	[157]
Result	[158]

Introduction

1 The appellant, Mr Winter, (along with a co-defendant, Alvin Kumar) was convicted (as a party) on two charges of wounding with intent to cause grievous bodily harm and one charge of male assaults female after a District Court jury trial. Four people were involved in the incident but the other two, Nicholas Hanson and Stephanie McGrath, pleaded guilty shortly before the trial. Mr Winter was sentenced to a term of imprisonment of eight years. 1

2 Mr Winter appealed against conviction and sentence to the Court of Appeal. He raised two grounds of appeal against conviction. The first was that a text message sent by Mr Hanson to Mr Hanson's girlfriend was wrongly admitted into evidence at the trial under the co-conspirators' exception to the rule against the admission of hearsay evidence, now set out in s 22A of the Evidence Act 2006. The second was that the trial Judge had not provided the jury with an included lesser offence for its

consideration. Both grounds were rejected by the Court of Appeal and the sentence appeal was also dismissed. 2

3 Mr Winter now appeals to this Court against his conviction (but not sentence), raising the same two grounds as were advanced in the Court of Appeal. 3

Background

4 The origin of the offending was a dispute between Ms McGrath and Daniel Hatcher, with whom she was in a relationship. Ms McGrath is Mr Winter's half-sister.

5 The relationship between Ms McGrath and Mr Hatcher was volatile, and an argument broke out on 30 August 2015 after Ms McGrath formed the view that Mr Hatcher had arranged for a copy of the key to her back door to be made.

6 After the argument between Ms McGrath and Mr Hatcher, Mr Hatcher left the address with a friend, Jason Nash. They went to visit Mr Nash's mother, Sandra Aldridge, who lived in a house bus with her partner, Lance Ambrose. Ms Aldridge and Mr Ambrose had visitors, Gerard Williams and Nicola Spencer. Ms McGrath knew that Mr Hatcher was going to the house bus.

7 Ms McGrath instigated a plan to go to the house bus and seriously assault Mr Hatcher. She contacted Mr Hanson, who went to Ms McGrath's home. Mr Hanson and Ms McGrath then made various threats to Mr Hatcher by text messages and phone calls. Mr Hatcher said that during one of the phone calls, Ms McGrath and Mr Hanson threatened to slit his throat and to stab him.

8 Ms McGrath sent text messages to others inviting them to “smash Dan”. Mr Winter and Mr Kumar, who had been contacted by Mr Hanson, became involved later in the day. Mr Winter, Mr Kumar and Mr Hanson were all associated with the Bandidos gang and Mr Winter was Mr Hanson's flatmate. Mr Hanson and Mr Winter

lived at the same address as Mr Hanson's stepfather, who was president of the Bandidos

9 Ms McGrath first contacted Mr Winter by text message at 11.38 am, asking him to come and see her. Ms McGrath and Mr Winter spoke on the phone at 1.57 pm for about five minutes, but there was no evidence as to what was said. There was a further text message exchange between Mr Hanson and Mr Winter between 4 pm and 5.30 pm, and Ms McGrath sent a text message to Mr Winter at 7.27 pm saying “He's threatening Jacob and cyfs”. The reference to “he” was apparently to Mr Hatcher and Jacob is Ms McGrath's son. There was a further phone call between Mr Winter and Ms McGrath at 7.52 pm, again lasting approximately five minutes, but no evidence as to what was said. There was evidence that Mr Winter was at Ms McGrath's address at 9.54 pm and that Mr Kumar had arrived there some two hours earlier.

10 The four participants travelled in Ms McGrath's car from her address to the house bus. They were in the vicinity of the house...