Tere and Others v R

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 04 July 2013
• Neutral Citation: [2013] NZCA 282
• Docket Number: CA462/2012 CA527/2012
• Court: Court of Appeal
• Date: 04 July 2013

BETWEEN

Terence Mario Tere Christopher Jacob Junior Shadrock Maka Uhia Tuikolovatu

Appellants

and

The Queen

Respondent

[2013] NZCA 282

Court:

Randerson, Courtney and Dobson JJ

CA462/2012

CA496/2012

CA527/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Three appeals against convictions — appellants were convicted in relation to a bag snatch incident where the victim was struck by the principal offender's vehicle and died from her injuries — Crown relied on s167(b) Crimes Act 1961 C(“A”) (offender meant to cause bodily injury that was known to the offender to be likely to cause death, and was reckless whether death ensued or not) and s167(d) CA (offender for any unlawful object did an act that he knew would be likely to cause death) — co-offenders had helped hide the victim's handbag and destroy the vehicle and were convicted of being accessories after the fact to murder — whether the Judge had misdirected the jury by referring to the concept of degrees of murder which prevailed in the United States when discussing the offence of murder — principal offender did not give evidence but his out of court statement was read to jury — whether a give a tripartite direction should have been given.

Counsel:

L O Smith for Appellant Tere

C B Wilkinson-Smith for Appellant Shadrock M B Meyrick for Appellant Tuikolovatu

J M Jelas for Respondent in all appeals

All three appeals against conviction are dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Introduction	[1]
Background facts	[5]
The trial	[10]
The Crown case	[10]
The defence case	[13]
The summing-up	[17]
The first ground of appeal (misdirection on degrees of murder)	[24]
Appellants’ submissions	[24]
Crown's submissions in response	[33]
Discussion	[37]
Conclusions on first ground of appeal	[49]
The second ground of appeal (lack of a tripartite direction)	[59]
The appellants’ submissions	[59]
The summing-up	[64]
Conclusions on second ground of appeal	[67]
The appeal by Mr Tuikolovatu	[70]
Conclusion on Mr Tuikolovatu's separate appeal ground	[92]
Result	[99]

1 These three appeals against conviction arise from an incident in a South Auckland carpark on 16 June 2008 which resulted in the death of the victim Ms Wang. The principal offender was the appellant Mr Shadrock who snatched Ms Wang's handbag. While Mr Shadrock was attempting to leave the carpark in a stolen vehicle, Ms Wang was struck by the vehicle causing injuries from which she later died. Mr Shadrock was convicted of murder. The appellants Mr Tere and Mr Tuikolovatu were alleged to have been accessories after the fact to murder.

2 The appellants were convicted after their first trial but their convictions were later set aside and a retrial ordered. 1 The appellants were again convicted by a jury at their retrial before Brewer J. Mr Shadrock was later sentenced to life imprisonment with a minimum period of imprisonment of 12 years. 2 Mr Tuikolovatu was sentenced to 18 months imprisonment. No further penalty was imposed on Mr Tere since he had already served the sentence of home detention imposed after the first trial. Two other men, Messrs Lemanu and Tekanawa, were

jointly charged with Mr Tere as accessories after the fact. They were both convicted but have not appealed since the retrial

3 The appellants have all appealed against conviction. The principal grounds for Mr Shadrock's appeal are:

• (a) The Judge misdirected the jury by referring to the concept of degrees of murder which prevails in the United States.

• (b) The Judge wrongly omitted to give a tripartite direction.

4 Mr Tere and Mr Tuikolovatu support Mr Shadrock's appeal since his conviction for murder is an essential element in their convictions as accessories. In addition, Mr Tuikolovatu submits that his conviction was unreasonable or not supported by the evidence.

Background facts

5 Mr Shadrock was the driver of the four wheel drive Nissan vehicle stolen for the purpose of effecting bag snatches. Just before 3.30 pm on Monday 16 June 2008, the vehicle driven by Mr Shadrock and a second vehicle (a Mitsubishi) occupied by Messrs Tuikolovatu, Lemanu, Tekanawa and a Mr Harris entered the carpark at the Manukau shopping centre.

6 Ms Wang had been shopping and returned to her parked vehicle at about 3.30 pm accompanied by her eight year old son. She put her handbag into the vehicle. She was then approached by Mr Shadrock who seized the handbag and ran back with it to the Nissan vehicle. Ms Wang pursued Mr Shadrock and approached the Nissan. Mr Shadrock reversed the vehicle at speed to get away but the vehicle's exit from the carpark was blocked by an oncoming vehicle. Mr Shadrock then accelerated the vehicle forward. It struck Ms Wang causing her to fall backwards and hit her head on the ground. She died from those injuries in the early hours of the following day, Tuesday 17 June 2008.

7 The occupants of the Mitsubishi vehicle had no direct involvement in the incident. They left the carpark in the Mitsubishi along with Mr Shadrock's vehicle.

8 The next day (17 June 2008), Mr Shadrock hid the stolen handbag at Mr Tuikolovatu's address. The police located the handbag there during a search on 19 June 2008. All the cash had been removed. The Crown case was that Mr Tuikolovatu knew that Ms Wang had died and permitted Mr Shadrock to hide the bag to assist Mr Shadrock to avoid detection.

9 The Crown alleged that Mr Tere set fire to the Nissan vehicle on 18 June 2008 to assist Mr Shadrock to destroy evidence relating to the offending.

The trial

The Crown case

10 The Crown did not suggest that Mr Shadrock intended to kill Ms Wang in terms of s 167(a) of the Crimes Act 1961 but relied instead on s 167(b) and (d). For convenience, we set out s 167 in full:

167 Murder defined

Culpable homicide is murder in each of the following cases:

• (a) if the offender means to cause the death of the person killed:

• (b) if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:

• (c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:

• (d) if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

11 The Crown alleged that Mr Shadrock had stolen the Nissan for the criminal purpose of snatching bags in the carpark. After he had stolen Ms Wang's bag, he became aware that she was pursuing him. When Mr Shadrock found his way backwards out of the carpark was blocked, he drove the Nissan forward with his foot down knowing that Ms Wang was somewhere in front of his vehicle. The Nissan was a large heavy vehicle and driving it in those circumstances led to the inference that Mr Shadrock intended to cause bodily injury to Ms Wang and that he knew there was a real and substantial risk of her death if the vehicle struck her. Mr Shadrock had proceeded with that knowledge and was reckless as to whether Ms Wang's death ensued or not. As such, he was guilty of murder under s 167(b).

12 Alternatively, the Crown submitted in terms of s 167(d) that Ms Wang's death resulted from her being struck by the Nissan vehicle. That was so closely related to the theft of the handbag as to be part of it. When Mr Shadrock drove forward, he had an actual and conscious appreciation that there was a real and substantial risk of Ms Wang's death if his vehicle hit her. That would be sufficient to constitute murder under s 167(d) even if Mr Shadrock might have wished to get away from the scene without hurting Ms Wang and even if he did not necessarily mean to cause her any injury.

The defence case

13 Mr Shadrock acknowledged that he was guilty of manslaughter but denied that he had either of the murderous intents relied upon by the Crown. His counsel submitted that Mr Shadrock did not have any intention to harm Ms Wang or anyone else. That was consistent with his statement when interviewed by the police. His plan was to snatch a bag and, having done so, he intended to leave the carpark and drive away. When his vehicle was blocked he drove forward very quickly. His counsel suggested that the vehicle was moving at about 20 kilometres per hour. On the evidence, the defence said Ms Wong's death had resulted from a glancing blow. It was a reasonable possibility that Ms Wang was off to one side of the vehicle (as Mr Shadrock had told the police when interviewed). It was also reasonably possible that Ms Wang had been clipped by the wing mirror. The defence emphasised that it was a wet day with poor visibility. Everything happened in a very short space of time, it being common ground that the critical events leading to Ms Wang being knocked over took only about two seconds. In these circumstances, Mr Shadrock did not appreciate the risk of fatal injury to Ms Wang.

14 A key point at trial was Ms Wang's precise location at the time of impact. Was she more to the front of the bonnet of Mr Shadrock's vehicle than around to the side of it as the Crown suggested or was she more off to one side as the defence suggested? A factual conclusion on this issue was significant since the Crown contended that if Ms Wang was towards the front of the vehicle as he drove towards her then he must have seen her and appreciated there was a real risk of fatal injury. On the other hand, if she was more to the side and was moving about as the defence contended, there could have been at least a reasonable doubt about Mr Shadrock's...