Jones v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWild,Keane,KJ
Judgment Date20 Jul 2015
Neutral Citation[2015] NZCA 312
Docket NumberCA362/2014 CA369/2014

[2015] NZCA 312

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Wild, Keane and KJ

CA362/2014

CA364/2014

CA369/2014

Between
Kristofer Lee Jones
Applicant
and
The Queen
Respondent
Between
Toni Maree Miller
Applicant
and
The Queen
Respondent
Between
Tariana Hineteanaurangi Jones
Applicant
and
The Queen
Respondent
Counsel:

C J Tennet for Appellant in CA362/2014

N Levy for Appellants in CA364/2014 and CA369/2014

S K Barr and F G Biggs for Respondent

Appeals against convictions and sentences for murder and aggravated burglary — offending involved group violence and invasion of the victim's home — whether the trials should have been severed whether a warning under s122 Evidence Act 2006 (judicial directions about evidence which may be unreliable) should have been given — whether a comment made as one of the offenders left the dock should not have been admitted into evidence — whether the starting point for an offence involving home invasion should be fixed by analogy with R v Mako following the repeal of the home invasion legislation.

The issues were: whether the trials should have been severed; whether the trial Judge had erred by failing to give a warning under s122 EA; whether counsel should not have been allowed to allege the conspiracy against KJ; whether the comment made as KJ left the dock should have been admitted; and whether the starting point for an offence involving home invasion should be fixed by analogy with Mako.

Held: All five accused had been represented before and at trial by experienced counsel. No application for severance had been made before trial. That was obviously a deliberate strategic decision. Severance had potential downsides, not the least of which was that co-accused, once tried, became compellable witnesses in any remaining trial(s). Nor had there been any application for severance during the trial.

The jury had been reminded several times during the trial that what one accused had told the police was not evidence against the other accused, for example, when the video statements of the accused were played in evidence. None of the appellants had alleged their counsel at trial erred in not seeking severance. This ground of appeal failed.

The obligation imposed on the Judge by s122(2) EA was only to “consider” giving a warning, while under s122(1) EA the Judge “may” give one ( CT (SC88/2013) v R). Given that the prosecutor had specifically raised s122 with the Judge, it could hardly be suggested that the Judge might have overlooked the section and failed to consider whether to give a warning. This ground of appeal failed.

Counsel ought not to have been permitted to launch a general attack on the statements of co-accused by alleging the conspiracy. The statements were not admissible evidence in KJ' trial, nor had counsel sought to have them admitted under s18(1) EA (admissibility of hearsay). In any case, he would not have been able to rely on s18(1), which imposed a requirement of reliability, to comment adversely on the comments of TJ and M, when his sole purpose was to demonstrate just how unreliable they were.

However no miscarriage of justice resulted. The statements were already in evidence, admissible against each of them individually. They had already been the subject of adverse comment by the prosecutor in his closing address to the jury. There was no real risk of any additional prejudice in the further criticism levelled by counsel.

The statement made by KJ after leaving the dock was admissible and relevant, as demonstrating KJ's hostility toward the victim and his willingness to attempt to justify his involvement in the attack on him. The Judge did not need to direct the jury on the use they made of this utterance, any more than he needed to direct on the other statements KJ made about his involvement in the attack. More importantly, admission of the statement did not risk justice miscarrying for KJ. The statement added little to a number of similar statements made by him.

The Judge did not err in leaving the options or “pathways” available under s 66(1) and (2) to the jury in the manner he did, and he adequately and accurately directed the jury as to principal and party liability. A judge could leave the s66 CrA options to the jury because there was no risk of the jury not being unanimous as to the particular event which was the factual basis for the jury's verdict. In Ahsin v R, William Young J urged prosecutors, in closing in a case arising from group violence, to put to the jury the Crown case on the strongest base available under s66(1) and (2). He considered that would simplify the Judge's task in summing up and avoid the jury being confused because the Crown case was “presented on the basis of closely overlapping alternatives associated with s 66(1) and s 66(2)”. But the Supreme Court had delivered its judgments in Ahsin after this trial and that guidance had not been available to counsel.

Notwithstanding the repeal of the Home Invasion Act, invasion of a home remained a seriously aggravating factor for a court sentencing for aggravated burglary. Although there was no longer the automatic three year uplift, the repeal had not removed the basis for the 10 year starting point in cases of home invasion ( R v Fenton). Home invasion element was a seriously aggravating factor, “justifying a significantly higher starting point than would otherwise be appropriate” ( Tiori v R).

Appeals against conviction were dismissed. Appeals against sentence by KJ and M were dismissed. The appeal by TJ allowed. The sentence of 10 years imprisonment imposed concurrently for aggravated burglary was quashed. A sentence of nine years imprisonment was substituted.

JUDGMENT OF THE COURT
  • A The appeals against conviction are dismissed.

  • B The appeals against sentence by Kristofer Jones (CA362/2014) and Toni Miller (CA364/2014) are dismissed.

  • C The appeal by Tariana Jones (CA369/2014) against sentence is allowed. The sentence of 10 years imprisonment imposed concurrently for aggravated burglary is quashed. A sentence of nine years imprisonment is substituted.

REASONS OF THE COURT

(Given by Wild J)

Contents

Para No.

Introduction

[1]

Facts

[7]

Severance

[13]

Other grounds of appeals against conviction by Toni Miller (CA364/2014) and Tariana Jones (CA369/2014)

[20]

The Judge failed to give an unreliability warning

[21]

The Judge failed to identify the possibility that Tariana Jones instigated a lesser common purpose than would be sufficient for murder

[29]

The question trail should have covered the possibility that a more serious purpose was agreed between the men only

[37]

Counsel for Kristofer Jones made an impermissible use of the statements made by Toni Miller, Tariana Jones and Matthew McKinney

[41]

Other grounds of appeal against conviction by Kristofer Jones (CA362/2014)

Application to adduce fresh evidence

[49]

The Judge wrongly ruled admissible Kristofer Jones' comment in the Masterton District Court

[54]

Two instances of prosecutorial misconduct

[61]

The Judge misdirected the jury

(a) Failure to put defence case

[65]

(b) Misdirection on parties

[69]

(c) Failure to direct on flight

[72]

(d) Failure to direct on admissible statements

[75]

Appeals against sentence

The Judge's approach to sentencing on the murder charges

[80]

The Judge's approach to sentencing on the aggravated burglary charges

[87]

Toni Miller's sentence appeal

[88]

Tariana Jones' sentence appeal

[95]

Kristofer Jones' sentence appeal

[99]

Result

[103]

Introduction
1

These are appeals by three of five offenders jointly tried in the High Court at Wellington before MacKenzie J and a jury in March 2014.

2

The appellants Tariana Jones and Kristofer Jones were each found guilty and convicted of murder and aggravated burglary. Each was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years for murder. A concurrent sentence of 10 years imprisonment was imposed for aggravated burglary. 1

3

Toni Miller was found guilty and convicted of aggravated burglary and sentenced to eight years imprisonment. She was not charged with murder.

4

None of the five accused gave evidence.

5

All three appellants appeal against their convictions. The grounds are best summarised in tabular form:

Kristofer Jones

Toni Miller

Tariana Jones

Failure to sever the trials

Failure to give unreliability warning

Lesser common purpose than sufficient for murder

More serious purpose agreed only between the three men accused of murder

Impermissible use by counsel for Kristofer Jones of the statements made by Toni Miller, Tariana Jones and

Matthew McKinney

Fresh evidence

Comment in Masterton District Court inadmissible

Prosecutorial misconduct

Misdirections

(a) Failure to put defence case.

(b) Misdirection on parties.

(c) Failure to direct on flight.

(d) Failure to direct on admissible statements

6

Kristofer Jones appeals also against the 17 year MPI imposed with his life sentence for murder. And Tariana Jones and Toni Miller appeal against their respective sentences of 10 years and eight years imprisonment for aggravated burglary.

Facts
7

On the evening of 11 January 2013 the appellants and others were at a gathering at Tariana Jones' home in Masterton. All of them except Toni Miller were drinking.

8

A female friend (we will refer to her as A) had, several weeks earlier, told some of the group that she had been raped by the victim in this matter, Glen Jones. 2 Toni Miller and Tariana Jones instigated a plan to travel to Glen Jones' home in Featherston and beat him up. A group (comprising the appellants, along with Hayden Ranson and Matthew...

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