Signal v R

• Jurisdiction: New Zealand
• Judge: Cooper P
• Judgment Date: 22 September 2023
• Neutral Citation: [2023] NZCA 459
• Court: Court of Appeal
• Docket Number: CA724/2022

[2023] NZCA 459

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court: Cooper P, Moore and Fitzgerald JJ

CA724/2022

Between

Jason David Signal

Appellant

and

The King

Respondent

Counsel:

R E Harrison KC and M C Jaquiery for Appellant

R K Thomson for Respondent

Criminal Procedure — appeal against a conviction for participating in an organised criminal group and manslaughter — jury communications — jury directions — actus reus for party liability — Criminal Procedure Act 2011 — Evidence Act 2006

• A The appeal against conviction is allowed in part and the conviction on the charge of participating in an organised criminal group is set aside. We direct the entry of a judgment of acquittal on that charge under s 233(3)(a) of the Criminal Procedure Act 2011.

• B The ground of appeal against conviction on the manslaughter charge based on jury misdirection is adjourned pending delivery of the Supreme Court's judgment in Burke v R, for which leave to appeal has been granted. The parties should file memoranda as to the disposition of this ground of appeal within 10 working days of delivery of the Supreme Court's judgment.

• C The appeal is otherwise dismissed.

JUDGMENT OF THE COURT

Table of Contents

	Para No
Background	[4]
Relevant events at Mr Signal's trial	[10]
The appeal	[23]
First and second grounds	[23]
Third ground	[61]
Fourth ground	[67]
Result	[70]

REASONS OF THE COURT

(Given by Cooper P)

1 The appellant Jason Signal was tried before Palmer J and a jury on charges alleging the manslaughter of Codi Wilkinson, 1 the wounding of Kyle Rowe with an intent to commit grievous bodily harm, 2 and participation in an organised criminal group. 3 He was found guilty on all charges and convicted on 21 September 2022.

2 Although he has not been sentenced, Mr Signal appeals against his conviction and in the circumstances of this case, where issues are raised about the deliberations of the jury brought to the Judge's attention at and shortly after the trial, we accept that was the appropriate course to follow.

3 There are four grounds of appeal. The first two grounds relate to the jury deliberations. The third ground concerns the way in which the trial Judge summed up the charge relating to participation in a criminal group to the jury. The fourth concerns the manner in which the Judge directed the jury on the “common purpose” that the Crown needed to prove to establish party liability for manslaughter.

Background

4 For present purposes, much of the relevant factual background may be taken from a notice of admitted facts filed at the trial pursuant to s 9 of the Evidence Act 2006. The notice set out the following, under the heading

“Background to this trial”:

The offending with which Mr Signal is charged is the result of a group attack on two junior patched members of the Mongrel Mob Aotearoa.

The attack took place on 12 September 2019.

One of the victims (Codi Wilkinson) received a number of injuries which were inflicted during the attack, and the other (Kyle Rowe) received a significant wound to his head.

Those involved in the attack, including Mariota Su'a, Quentin Moananui and Dean Jennings, were senior patched members of the Mongrel Mob Aotearoa, Manawatu Chapter. Jeremiah Su'a was the president of the Manawatu Chapter at the time.

Following a jury trial which took place between 9 February and 7 May 2021 (“the 2021 trial”) Jeremiah Su'a, his brother Mariota Su'a and Quentin Moananui were found guilty of Manslaughter (Codi Wilkinson), Wounding with Intent to cause Grievous Bodily Harm (Kyle Rowe) and Participation in an Organised Criminal Group.

Although they each faced a charge of Murder in respect of Codi Wilkinson, the jury convicted them of Manslaughter. In acquitting the defendants of murder by inference the jury decided the Crown had not proven any of the defendants subjectively appreciated the likelihood of Codi Wilkinson's death as a result of the attack.

At the 2021 trial Mr Jeremiah Su'a was convicted of Manslaughter and Wounding with intent on the basis that he participated in planning and organising the attack, and he was sentenced on this basis.

At the 2021 trial Mr Moananui was also convicted of two further charges of Kidnapping, which involved taking the victims from where the attack took place in Ashhurst to Bunnythorpe.

Dean Jennings was also a defendant in the 2021 trial. However the jury could not reach verdicts in relation to him.

Dean Jennings subsequently pleaded guilty to Manslaughter, Wounding with intent to cause grievous bodily harm, and two charges of Kidnapping. He admitted his involvement, alongside Quentin Moananui, in taking the two victims from Ashhurst to Bunnythorpe where Codi Wilkinson's body was later found.

There is no independent forensic evidence as to who participated in the physical attack. There is no evidence that Jason Signal was involved in the physical attack on Codi Wilkinson and Kyle Rowe

There is no evidence that Jason Signal was involved in the plan to kidnap the victims Codi Wilkinson and Kyle Rowe, and he is not charged with kidnapping.

Jason Signal is not a Mongrel Mob member, prospect or associate and never has been. He was a close friend of Jeremiah Su'a at the time of the offending There is no evidence of a friendship between Jason Signal and any of the following: Dean Jennings, Mariota Su'a, Quintin Moananui or [BL].

5 Further facts set out in the notice stated that Mr Wilkinson and Mr Rowe had committed an aggravated robbery without the knowledge or approval of the gang. The aggravated robbery was committed against a person associated with the gang, who was a known commercial drug dealer based in Bunnythorpe and an associate of Jeremiah and Mariota Su'a. Mariota Su'a was able to identify Mr Wilkinson and Mr Rowe as having been responsible for the attack by viewing CCTV footage. Under the heading “[t]he common plan” the notice said:

On 12 September 2019 a plan was formed by members of the gang to inflict serious violence on Codi Wilkinson and Kyle Rowe, to punish them for the unauthorised aggravated robbery and to “de-patch” them. The plan included physically taking their Mongrel Mob patches from them.

6 The attack on Mr Wilkinson and Mr Rowe was then described in the notice. It was said that Mr Rowe and Mr Wilkinson were “brutally attacked in a confrontation by members of the group”. Mr Rowe sustained a “sharp force injury”, causing a laceration approximately 10 cm in length to the top of his head, and exposing his skull underneath the wound. There was severe swelling and bruising across his whole body, and an open wound to his left middle finger.

7 After the attack, Mr Wilkinson was placed in the boot of Mr Rowe's motor vehicle and Mr Rowe was made to sit in the front passenger seat. Mr Rowe managed to escape as the car was being driven. After running away, he found a member of the public who drove him to Palmerston North Hospital. It was unclear what happened to Mr Wilkinson. His deceased body was found in Bunnythorpe some 15 days later. It was unclear whether he had managed to escape from the boot of the car himself or had been assisted out of it. There was also no evidence that any of the defendants (Mariota Su'a, Quentin Moananui, Dean Jennings, Jeremiah Su'a or Jason Signal) were aware that Mr Wilkinson was deceased until after his body was located.

8 Jeremiah and Mariota Su'a, together with Quentin Moananui were convicted of manslaughter, wounding and participating in an organised criminal group after a 13 week trial in 2021. Mr Moananui was also convicted of kidnapping. The jury could not agree on verdicts with respect to Mr Signal and the other co-defendant, Mr Jennings.

9 Mr Jennings subsequently pleaded guilty to the charges. Mr Signal was therefore retried on his own at the trial which has given rise to this appeal.

Relevant events at Mr Signal's trial

10 On 8 September, the third day of the trial, the Judge discharged a juror who had a passing acquaintance with the victim of the aggravated robbery committed by Mr Rowe and Mr Wilkinson. The trial proceeded before the 11 remaining members.

11 They retired to consider their verdict on Tuesday 20 September, broke just before 5 pm and resumed the following day. At about 10 am on 21 September, the foreperson sent a note stating that the jury had “reached their unanimous verdict on all 3 charges”. However, accompanying it was another note, signed by an individual juror, in the following terms:

To the judge

Whilst I have agreed that Jason has some responsibility and needs to face the consequences of his part in this Awful Situation.

I also wholeheartedly believe that Jason Played a very small part and acted the way he did to get recognition in a sense of I belong - I do not believe that Jasons heart Intention was to harm Codi or Kyle and that the true Masterminds behind this Crime was the Sua Brothers & Barry Long.

Jason I believe does not deserve to be unduly punished.

I feel to write this because people do things and don't do things for deeper reasons than just what the Evidence shows.

Thank you for taking time to puruse this and good luck to Jason.

12 In a bench note made on 21 September, the Judge made this record: 4

[4] I heard from counsel in the presence of the defendant but the absence of the jury:

• (a) Ms Jaquiery, for Mr Signal, was concerned about whether the verdicts were unanimous. She submitted further inquiries should be made of the jury about that or whether a majority

  verdict direction was required. She said she was not suggesting there had been intimidation, but she also submitted it might be appropriate to poll the Jury, citing case law.

• (b) Ms Davies, for the Crown, agreed that it would be wrong to just take the verdicts without further inquiry. She submitted suggested majority verdicts may be part of the direction...