Robin v R

• Jurisdiction: New Zealand
• Judge: Arnold J
• Judgment Date: 26 July 2013
• Neutral Citation: [2013] NZCA 330
• Docket Number: CA187/2012 CA220/2012 CA267/2012
• Court: Court of Appeal
• Date: 26 July 2013

Between

Jason Karauria Robin

First Appellant

and

The Queen

Respondent

And Between

Tangaroa Watene Parekura Gray

Second Appellant

and

The Queen

Respondent

And Between

Samuel Pearson

Third Appellant

and

The Queen

Respondent

And Between

Beck Eden Gray

Fourth Appellant

and

The Queen

Respondent

[2013] NZCA 330

Court:

Arnold, Heath and Keane JJ

CA187/2012

CA214/2012

CA220/2012

CA267/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction and application to adduce further evidence by one of appellants, (“G”) — appeals against sentence by all appellants — appellants were convicted on counts of wounding with intent to cause grievous bodily harm — Crown alleged the attack on the two victims was gang-related — in appeal against conviction, G contended that: deficiencies in identification evidence resulted in an insufficient basis for a finding of guilt; that the Judge had failed in summing up to draw attention to the weakness of the identification evidence or to give a sufficient warning in terms of s126(1) and (2) Evidence Act 2006 (“EA”) (judicial warnings about identification evidence); and there was now important evidence available from a co-offender that was not available at the trial — one of appellants (R) had been resentenced after judge had retired when Crown counsel had suggested in chambers that the judge had imposed a sentence that had been inconsistent with the other sentences — whether any grounds for G's appeal against conviction and application to adduce further evidence had been made out — whether imposed sentences had been appropriately discounted — whether the judge had been functus officio when he re-sentenced R.

Counsel:

A M Simperingham for Appellant Robin

J G Krebs for Appellant Tangaroa Gray

N H Wright for Appellant Pearson

D J Sharp for Appellant Beck Gray

S B Manning for Respondent

A CA187/2012:

Jason Robin's appeal against sentence is allowed. His sentence of nine years' imprisonment is quashed and a sentence of seven years, six months' imprisonment is substituted.

B CA214/2012:

Tangaroa Gray's appeal against sentence is allowed. His sentence of four years, six months' imprisonment is quashed and a sentence of three years, six months' imprisonment is substituted.

C CA220/2012:

Samuel Pearson's appeal against sentence is allowed. His sentence of seven years, nine months' imprisonment is quashed and a sentence of six years, four months' imprisonment is substituted.

D CA267/2012:

In relation to Beck Gray:

(a) His application for an extension of time to appeal is granted.

(b) His application to adduce further evidence is dismissed.

(c) His appeal against conviction is dismissed.

(d) His appeal against sentence is allowed. The sentence of nine years' imprisonment is quashed and a sentence of seven years, six months' imprisonment is substituted.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Arnold J)

Table of contents

	Para No
Introduction	[1]
A brief background	[2]
Mr Beck Gray's conviction appeal	[6]
Unreasonable verdict?	[11]
The trial Judge's instructions	[27]
(i) Identification	[29]
(ii) Failure to put defence adequately	[40]
(iii) Self-defence	[44]
Application to admit new evidence	[49]
The sentence appeals	[60]
Mr Tangaroa Gray	[67]
Mr Beck Gray	[73]
Mr Jason Robin	[75]
Mr Samuel Pearson	[80]
Decision	[82]

Introduction

1 The appellants were charged with two counts of wounding with intent to cause grievous bodily harm, each count involving a different victim, namely Messrs Roger and Nicodemus Te Puni (counts one and two respectively). Mr Pearson entered pleas of guilty to both counts on the morning of trial and was sentenced to seven years, nine months' imprisonment. 1 Following a jury trial before Judge Wilson QC: 2

Mr Beck Gray now appeals against both conviction and sentence, and the remaining appellants against sentence only. 3 (There was one further offender, Mr Rakairoa Gray, who was convicted on count one and sentenced to seven years' imprisonment. He has not appealed.) Mr Beck Gray's appeal was filed out of time, so he requires an extension of time to appeal. There being no objection, we extend time.

• (a) Mr Robin was convicted on both counts and was sentenced to imprisonment for nine years;

• (b) Mr Tangaroa Gray was convicted on count one and acquitted on count two. He was sentenced to imprisonment for four years, six months; and

• (c) Mr Beck Gray was convicted on count one and acquitted on count two. He was sentenced to imprisonment for nine years.

A brief background

2 The appellants are patched members of the Black Power gang. One of the victims, Mr Roger Te Puni, is a patched member of the Mongrel Mob. The Crown alleged that the attack on the two victims was gang-related.

3 On 17 December 2010, Messrs Robin and Tangaroa Gray were out drinking with Mr Samuel Pearson. Having run out of alcohol and purchased further supplies, the trio went to Mr Pearson's home, where Mr Beck Gray was child-minding. Sometime after, while driving past Mr Pearson's house, one of the victims, Mr Roger Te Puni, was verbally abused by people on the property. There was an exchange of words and hand signals and possibly something was thrown at Mr Roger Te Puni's car. Mr Te Puni slowed down, but then drove off to gather together some associates and return to confront the group on the property.

4 Mr Te Puni gathered up four people, including the second victim, his nephew Mr Nicodemus Te Puni. He and his associates then drove to Mr Pearson's house. They stopped their vehicle on the front lawn of the property and got out. The two victims walked towards the house, while the others remained further away. It appears that neither of the victims was armed, although there was some dispute about that. The intruders were met by those on the property and a fight broke out. Messrs Roger and Nicodemus Te Puni were knocked to the ground. At that point, the Te Punis' associates withdrew further. Those on the property hit the Te Punis with timber battens and a spade, as well as punching and kicking them, while they were on the ground.

5 Although the Te Punis were knocked unconscious and were unable to defend themselves, the assailants continued to assault them. Mr Roger Te Puni suffered extensive injuries to his face and head. He has lost the vision in one eye and has been left with only 30 per cent vision in the other. Mr Nicodemus Te Puni suffered brain injuries, a tooth fracture, a stab wound and a collapsed lung.

Mr Beck Gray's conviction appeal

6 Before we deal with the grounds of Mr Beck Gray's appeal against conviction, we should say a little more about the case against him. There is no dispute that Mr Beck Gray was at Mr Pearson's house when the Te Punis and their associates arrived. The Crown case was that he took an active part in the attack, then left the property and hid in the backyard of a neighbour's house. The Crown argues that it is not significant that Mr Beck Gray may have left before the attack ended as there was ample evidence that he participated in it.

7 The Crown relied on both direct and circumstantial evidence, as follows:

• (a) The evidence of a neighbour, Mr Antonio Curtis, who observed the attack. His description of the person wielding the spade was consistent with the assailant being Mr Beck Gray and, on the Crown case, inconsistent with it being anyone else in the group on the property.

• (b) The identification of Mr Beck Gray by two of the victims' associates, Messrs Joshua and Te Aowera Te Puni.

• (c) Mr Beck Gray's age, his build and his clothing. At the time, Mr Beck Gray was aged 35 and the oldest of the accused, the remainder being 17 or 18. Mr Beck Gray has a bigger build than the others. The Crown alleged that he was wearing shorts and a t-shirt on the evening in question, matching the description given by Mr Curtis.

• (d) Mr Beck Gray's behaviour when he left the property and his comments to a neighbour (Mrs Rangihuna-Roberts). The Crown alleged that Mr Beck Gray sought refuge at the house of his neighbours, Mr Roberts and Mrs Rangihuna-Roberts, and gave the impression that he had something to hide from the police (who subsequently went to the property). He also made some comments which indicated that he had knowledge of violence against an “old man” (alleged to be a reference to Mr Roger Te Puni).

8 Mr Beck Gray's case was that he left the property after he had told the intruders to leave and before the attack began, and that he was at the neighbours' house by the time the attack occurred. Mr Beck Gray did not give evidence at trial, but evidence was called on his behalf. In short, he denied that he had caused any injury to either victim or that he helped or encouraged anyone else to do so.

9 Mr Sharp's submissions raised three grounds of appeal:

• (a) The verdict of the jury was unreasonable because deficiencies in the identification evidence meant there was an insufficient basis for a finding of guilt.

• (b) The Judge erred in his summing up. In particular:

  • • the Judge's instructions on identification were inadequate;

  • • the Judge had failed to summarise the case for Mr Beck Gray adequately; and

  • • the Judge had failed to leave self-defence to the jury in respect of Mr Beck Gray.

• (c) There is now important evidence available that was not available at the trial and is material to Mr Beck Gray's defence, in particular the evidence of Mr Robin.

10 We deal with each ground in turn.

Unreasonable verdict?

11 The approach to be adopted was settled by the Supreme Court in R v Owen. 4 There the Court said: 5

We would endorse the following aspects of the decision of the Court of Appeal in [ R v Munro]: 6

• (a) The appellate court is performing a review function, not one of substituting its own view of the...