Jones v R

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

[2015] NZCA 312

Court:

Wild, Keane and KJ

CA362/2014

CA364/2014

CA369/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

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

  • 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.

JUDGMENT OF THE COURT

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 McKinney, who were tried in the High Court, and three other women, Macaela Coley, Kelly Pearce, and Cassandra Granich, who were not charged but gave evidence at trial) set off in two cars, arming themselves with a home-made bat and two wooden axe handles.

9

After arriving in Featherston, they parked the two cars near Glen Jones' home. Macaela Coley and Kelly Pearce stayed in the cars. The appellants, together

with Matthew McKinney, Hayden Ranson and Cassandra Granich walked toward Glen Jones' home. Toni Miller and Cassandra Granich stayed on the street outside the home, but Kristofer Jones, Tariana Jones, Matthew McKinney and Hayden Ranson went up to Glen Jones' home, carrying two of the weapons they had brought
10

Kristofer Jones knocked on the door. When the door opened, the group outside pushed their way in and set upon Glen Jones. In addition to being taken by surprise and defenceless, Glen Jones was partly disabled. We expand on this in [82](c) below. Glen Jones was struck around the head and body with the two weapons and also kicked and punched.

11

Upon hearing the victim crying out, Toni Miller and Cassandra Granich ran back to the cars. The four who had gone into Glen Jones' home then left and also ran back to the two cars. They left him lying unconscious on the floor.

12

Neighbours called emergency services. By the time ambulance officers arrived, Glen Jones was already clinically dead. Resuscitation efforts were unsuccessful and he died in Wellington Hospital as a result of the head injuries he had sustained.

Severance
13

All three appellants appeal their convictions on the basis their trials should have been severed. Ms Levy submitted Toni Miller should have been tried alone and Tariana Jones should have been tried with Kristofer Jones and Hayden Ranson. That would have left Matthew McKinney to be tried alone - three separate trials.

14

The basis for Ms Levy's severance submissions was the “significant quantity of highly prejudicial material in the video statements made by other accused”, which was inadmissible against Toni Miller and Tariana Jones. Dealing with Toni Miller, Ms Levy submitted the only issue was whether she knew weapons were being taken to the confrontation in Featherston, making her a party to the aggravated burglary of Glen Jones' home. Ms Levy argued all the evidence of the violence that ensued at Featherston was irrelevant to that issue. The statement of Toni Miller's partner, Matthew McKinney, and the closing address of counsel for Kristofer Jones were, in Ms Levy's submission, particularly prejudicial. We deal with counsel's remarks in

45

below.

15

Turning to Tariana Jones, Ms Levy argued severance from Toni Miller's trial was required because Ms Miller had told the police Tariana Jones participated in the discussion with the men about what they were going to do, shortly before she and the men went into Glen Jones' home. She submitted severance from Matthew McKinney's trial was required because his statements to the police, demonstrating a willingness to use violence against Glen Jones, were similarly prejudicial.

16

Mr Tennet submitted the Crown's evidence at trial against Kristofer Jones was lacking, which would have led to the jury giving some weight to the statements of his co-accused. He said the prejudicial effect of those statements could not be cured by judicial direction. He also submitted the Crown in closing failed to delineate adequately the evidence as to which of the accused was carrying a weapon.

17

Applying the principles set out by this Court in R v Fenton and affirmed many times since, we do not accept the trials of the five accused should have been severed. 3 In summary, our reasons are these:

  • (a) All five accused were represented before and at trial by experienced counsel. Indeed, most, if not all, trial counsel were very experienced.

  • (b) No application for severance was made before trial. Given (a), this was obviously a deliberate strategic decision. Severance has potential downsides, not the least of which is that co-accused, once tried, become compellable witnesses in any remaining trial(s).

  • (c) Nor was there any application for severance during the trial, although that is a possibility - albeit only in exceptional circumstances. 4

  • (d) During the trial MacKenzie J reminded the jury several times 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. In summing up, the Judge gave a detailed direction about the admissibility of the accuseds'...

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