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Leon Delshannon Turner & Others v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 604 of 2016

    Decided On, 29 May 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE KÓS P
    By, THE HONOURABLE MR. JUSTICE BREWER & THE HONOURABLE MR. JUSTICE GENDALL

    For the Appellants: L.L. Heah, C.D. Eason, Keefe (in Person), C.M. Ruane, N.P. Chisnall, Advocates. For the Respondent: J.C. Pike, QC.



Judgment Text

REASONS OF THE COURT

(Given by Ks P)

[1] The complainant Dawson Reihana, a member of the Mongrel Mob Notorious chapter in Christchurch, was attacked and badly injured on the afternoon of Saturday 8 August 2015. Numerous assailants were involved. Mr Reihana was hit with hammers, fists and knees. The injuries to Mr Reihana were described by Mander J in sentencing in the High Court:[1]

Mr Reihana received extensive facial bruising and swelling as a result of the violence. Both of his eyes were swollen shut. The photographs of the damage to his face were graphic. He received multiple lacerations to his forehead and to the back of his head, and a gouge wound to his scalp, together with further cuts to his cheek area and forehead. His nose was fractured. He also suffered grazing and bruising to the back of both of his wrists, and bruising to his knees, body and limbs.

[2] These assaults began at an address on Ajax Street, Burwood, Christchurch, and continued (after he was transported in a motor vehicle) at another address on Bowenvale Avenue, Cashmere. The detention at Bowenvale Avenue fell into two parts; at some point in the evening of 8 August 2015 Mr Reihana was put in a motor vehicle and driven around Christchurch, allegedly (and unsuccessfully) to extort money from associates for his release.[2] Early in the morning of Sunday 9 August 2015 the man guarding Mr Reihana at Bowenvale Avenue fell asleep. Mr Reihana managed to extract the guard’s cellphone and make two 111 calls. Within an hour or thereabouts he was rescued by the police.

[3] None of the above is in doubt. What is in issue is who the assailants were. And the extent to which they were involved. Mr Reihana was familiar with all the appellants apart from Mr Reweti. Some he had known for many years. Mr Reihana was establishing a Mongrel Mob chapter, Mongrel Mob Notorious, in Christchurch. The appellants are members or associates of another, rival Mongrel Mob chapter, Mongrel Mob Aotearoa.

[4] All five appellants were convicted by a jury of kidnapping. In addition, the appellants were also convicted of various violence charges. Mr Turner was convicted of one charge of wounding with intent to cause grievous bodily harm (GBH) and two of injuring with intent to cause GBH. Mr Mulvey was convicted of the same. Mr Gilbert was convicted of wounding with intent to GBH and injuring with the same intent. Mr Keefe was convicted of two charges of injuring with intent to cause GBH and Mr Reweti one charge of injuring with the same intent. Mander J sentenced the appellants as follows:

(a) Mr Mulvey to 10 years and six months’ imprisonment with a minimum period of imprisonment (MPI) of five years and three months’ imprisonment;[3]

(b) Mr Turner to 10 years’ imprisonment with a MPI of five years;[4]

(c) Mr Gilbert to nine years and six months’ imprisonment with a MPI of four years and nine months’ imprisonment;[5]

(d) Mr Keefe to six years and six months’ imprisonment;[6] and

(e) Mr Reweti to four years and six months’ imprisonment.[7]

[5] Four other men were also involved in the offending. Three pleaded guilty and were sentenced accordingly: Mr Waitokia who was sentenced on one charge of injuring with intent to cause GBH to six years’ imprisonment with a MPI of three years;[8] Mr Mauheni on one charge of kidnapping was sentenced to 15 months’ imprisonment and granted leave to apply for cancellation of that sentence and substitution of seven months’ home detention;[9] and Mr Peters who was sentenced on a single charge of kidnapping to two years and two months’ imprisonment. [10] Finally, Mr Corbin was found guilty at trial as a party to Mr Mauheni’s kidnapping charge and sentenced to two years and five months’ imprisonment.[11]

[6] Messrs Turner and Reweti appeal against conviction only. Messrs Mulvey, Gilbert and Keefe appeal against conviction and sentence.

[7] Each appellant’s notice of appeal was filed out of time. The Crown has not raised objection to the delay. We grant extensions of time to appeal.

Mr Turner’s appeal

[8] As presented by Ms Heah, Mr Turner’s appeal came down to a single proposition: that his trial counsel failed to specifically advise and obtain instructions from Mr Turner as to the nature of the defence to be run at the trial 'including a defence based on his version of [events]'.

[9] Ms Heah submitted that trial counsel had unilaterally made the decision to run a defence 'based solely on putting the prosecution to the proof and in terms of attacking the credibility and reliability of the complainant'. As a consequence, trial counsel had not cross-examined Mr Reihana on a number of essential matters concerning the extent to which he had been assaulted by Mr Turner or to suggest Mr Turner had been absent at key points in time.

[10] As this was an allegation of trial counsel error, said to have given rise to a miscarriage of justice, we heard evidence from Mr Turner and his trial counsel, Anthony Greig.

Mr Turner’s evidence

[11] Mr Turner conceded in evidence that he was relying heavily on the complainant, Mr Reihana, not turning up to trial. In evidence he thought it was 50/50 whether Mr Reihana would turn up. Even if Mr Reihana did turn up, he felt there was a real possibility that Mr Reihana would retract the evidence that he had given in his police interview. Significantly, Mr Turner conceded:

I did not give Mr Greig a detailed account of my version of events before trial. I gave him bits and pieces of information over time. Mr Greig did not ask me for more details. ... I do accept that at times I could have been reluctant to provide information that might implicate my co-defendants because that would put my safety at risk.

[12] Mr Turner acknowledged that during the trial when Mr Reihana both appeared and actually gave evidence against him, he then gave Mr Greig more details about his side of the story in written notes passed to Mr Greig. He said he did not give those details before trial because Mr Greig had not asked for them and that he was 'very disappointed and upset that Mr Greig did not put any part of my version of events to Mr Reihana when he cross-examined him'.

[13] Mr Turner went on to say that had he appreciated he could have 'run a defence based on my version of events in the event Mr Reihana gave evidence against me' he would have done so, and he would have reconsidered his initial decision not to give evidence at trial. Mr Turner fairly acknowledged that without his giving evidence his version of events 'would have no or little chance of being believed by the jury'. But before us Mr Turner purported to say that he did not appreciate that he had the opportunity to give evidence at all. We do not accept that evidence. It is inconsistent with his affidavit evidence and with his own prior court experience.

Mr Greig’s evidence

[14] Mr Greig gave detailed affidavit and oral evidence to the Court. He acknowledged that he was instructed in the matter late after withdrawal of previous counsel. He confirmed that Mr Turner had been placing a great deal of reliance on Mr Reihana not turning up. He said in evidence that a particular difficulty was that Mr Turner had a tendency to ask Mr Greig what he thought Mr Turner’s 'best defence' was. Mr Greig said he offered to go through every page of each witness’s evidence - in particular Mr Reihana’s - but Mr Turner did not want to do that. A significant difficulty in relation to the defence was that Mr Turner had told Mr Greig that the real purpose behind Mr Reihana wanting to set up his own chapter of the Mongrel Mob in Christchurch was 'to take over the illicit drug trade that Mr Turner’s chapter controlled'. Mr Turner had in fact relatively recently left the Mob and had set up his own mechanical business. Mr Greig’s evidence was that Mr Turner was very vague on details of the offending in the two conferences they had prior to trial. Only once the trial had started did Mr Turner give instructions that he wanted witnesses to be called. Mr Greig and Mr Turner discussed the identity of those witnesses. Mr Turner accepted Mr Greig’s advice that one of those proposed alibi witnesses would be selfdefeating because of a notorious criminal record, but another witness was tracked down by Mr Greig as a result of instructions and did give evidence offering a partial alibi.

[15] A critical feature of Mr Greig’s instructions was Mr Turner’s confirmation that he not wish to give evidence. Mr Greig said that Mr Turner made that clear from the beginning. That view accorded with Mr Greig’s own assessment. He gave concurrent advice to Mr Turner, that in his view he would do very badly under cross-examination. That advice was accepted. It may be noted that none of the appellants gave evidence on their own behalf.

Discussion

[16] To establish a miscarriage of justice, two things must usually be demonstrated by an appellant. First, something must be shown to have gone wrong with the trial. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict.[12] An appellant does not have to demonstrate that the verdict in fact is unsafe; real risk of that will suffice.[13] Trial counsel error typically gives rise to a miscarriage of justice in two situations. First, where counsel does not follow the defendant’s instructions. Secondly, where trial counsel’s conduct prejudices a defendant’s prospects of acquittal (or a more favourable verdict).[14] Not every failure by trial counsel to advance the defence case in what may later be argued to be the most effective manner will be a proper reason to overturn a conviction. A margin of appreciation must be given to trial counsel in the conduct of the defence, so long as that conduct is not inconsistent with instructions. Reasonable tactical decisions made within the confines of trial counsel’s instructions, even if it later appears they may have impacted adversely from the perspective of the defendant, will not ordinarily establish a miscarriage of justice.[15] As Arnold J noted in R v Scurrah:[16]

... where counsel has made a tactical or other decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial. This reflects the reality that trial counsel must make decisions before and during trial, exercising their best judgment in the circumstances as they exist at the time. Simply because, with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice. Nor will there have been a miscarriage of justice simply because some other decision is thought, with hindsight, to have offered a better prospect of an outcome favourable to the accused than the decision made.

[17] Here we do not find that Mr Greig failed to obtain proper instructions, or then to follow those instructions. Although Mr Greig only had two consultations with Mr Turner pre-trial, the trial was not (on the limited instructions given by Mr Turner at least) overly complex having depended substantially on the evidence of a single Crown witness, the complainant Mr Reihana. It is a notable feature of the case that Mr Turner’s instructions evolved as the trial progressed, and that he had been economical with those instructions at the outset. Mr Greig was compelled, to begin with, to make bricks without straw.

[18] We find also that proper advice was given by Mr Greig as to the advisability of Mr Turner giving evidence, and that Mr Turner accepted that evidence before trial and did not seek to revoke that instruction even when Mr Reihana, contrary to Mr Turner’s expectation, came more or less up to brief. We have stated already that we reject the evidence given by Mr Turner that he did not appreciate he had the right to give evidence at all.[17]

[19] We turn now to the conduct of the trial by counsel. The complaint made was as to the tactical decision made by Mr Greig not to take Mr Reihana in crossexamination through certain specific aspects of Mr Turner’s defence. That is, as to: (1) not having assaulted Mr Reihana at Ajax Street (although he would have accepted a 'perhaps minor assault' at Bowenvale Avenue); (2) not being in a van transporting Mr Reihana from Ajax Street to Bowenvale Avenue; and (3) not returning to Bowenvale Avenue until late on the Saturday evening.

[20] Mr Greig would have had to have put those points to Mr Reihana if he had intended to call Mr Turner to give evidence to that effect. Mr Greig chose not to take that course, which in effect meant that he could not call Mr Turner. He did so for two reasons. First, he was instructed to not call Mr Turner. Secondly, because of his observation of the cross-examination of Mr Reihana by counsel for Mr Mulvey. He considered that significant progress had already been made by that counsel in getting Mr Reihana to backtrack from his original statement. Under crossexamination Mr Reihana had accepted that he was affected by morphine when making his statement. And he agreed also that the original statement was exaggerated. Mr Greig’s assessment, also, was that the better tactical course was to attack Mr Reihana’s credibility generally (as counsel for Mr Mulvey had), and not challenge him on the points of detail just identified.

[21] Although that course was speculative, it was one open to counsel to take and was not inconsistent with his instructions. In particular, those instructions were as they stood at the time he undertook cross-examination of Mr Reihana. Mr Greig’s speculation that Mr Reihana’s credibility was better attacked obliquely in fact proved correct. Subsequently, counsel for one of the other defendants chose to cross-examine by reference to specific aspects of the evidence. The consequence was that Mr Reihana reverted to a strong assertion of the accuracy of his original statement to the police. Despite that the defendant concerned did not elect to give evidence.

[22] We reject the trial counsel error ground Mr Turner advances.

Appeal by Mr Mulvey

[23] Mr Mulvey advances both conviction and sentence appeals.

Conviction appeal

[24] The fundamental ground of the conviction appeal advanced in oral submission was alleged failure by trial counsel to adequately put Mr Mulvey’s case in closing. Mr Reihana’s evidence had been that Mr Mulvey was one of those who detained him (charge 1), assaulted him with a hammer at Ajax Street (charge 2) and assaulted him (without a weapon) at Bowenvale Avenue on the first occasion Mr Reihana was there (charge 3). There was a further charge of injuring with intent to cause GBH (charge 4). Mr Reihana accepted in evidence that Mr Mulvey had left Bowenvale Avenue before he was taken on for a drive referred to above at [2] of this judgment.

[25] Mr Mulvey did not give evidence, but called evidence in his defence. Satisfactory partial alibi evidence was given by his sister which established that Mr Mulvey had arrived at her house at about 6.40 pm. Mr Mulvey was subject at that time to a bail condition requiring him to reside at his sister’s address. A bail check was made at 12.35 am at his sister’s address and Mr Mulvey was present. Mr Reihana gave no evidence of Mr Mulvey returning to Bowenvale Avenue. He was located by the police instead at the Ajax Street property the following morning, Sunday 9 August, apparently cleaning the premises.

[26] Further alibi evidence was called from a woman called Ms Dianna Hona. The burden of her evidence was to establish that she had spent some 20 to 30 minutes with Mr Mulvey earlier in the afternoon of Saturday 8 August 2015. But her evidence was entirely undermined in cross-examination when she was unable to say with any precision what day that meeting occurred on.

[27] The burden of the challenge advanced by Mr Chisnall on Mr Mulvey’s behalf before this Court was to the closing address of trial counsel so far as it related to charge 4. This was a charge of injuring with intent to cause GBH on the second occasion that Mr Reihana was at Bowenvale Avenue (that is, after he was taken for a drive). There was very little evidential foundation for the jury to conclude that Mr Mulvey had himself committed such injuring on the second occasion Mr Reihana was at Bowenvale Avenue. Mr Reihana did not say so, and there was independent evidence to suggest that Mr Mulvey was elsewhere. But Mr Mulvey was charged also as a party on the basis of an alleged shared understanding or agreement between the person injuring Mr Reihana on that occasion and Mr Mulvey to unlawfully detain and assault Mr Reihana.

[28] The closing address by trial counsel, Mr Anthony Garrett, was the last of the closing addresses delivered. It was, unsurprisingly, relatively brief and focused. That focus was on key points of evidence that favoured Mr Mulvey. In this respect there were some difficulties. Mr Reihana knew Mr Mulvey extremely well, he had identified him as a participant in the offending in the first three charges, and had effectively acquitted him of direct involvement in the fourth. There was very strong evidence to suggest that Mr Mulvey was at the centre of the detention and assault of Mr Reihana. Mr Reihana gave evidence that he had originally been invited to the Ajax Street property by Mr Mulvey, by text message. That property was the residence of Mr Mulvey’s girlfriend. Mr Mulvey had admitted to the police that he had been there when Mr Reihana arrived. There was, in particular, a text message which the jury could reasonably have inferred had been sent by Mr Mulvey, to an unidentified recipient. It read:

Pete its m a friend of jenny if u remember,i hear ths fukin idiot dawsons giving u a hard time?i can fix that right now n youl neva hear frm him again...he be lucky too walk, but i am struggling pete financially,would u pay a small koha for this help?il help u anyway,im jus reading the txts hes been sending but u tell me wat n wen u may be able too do n this c*** n his head aches stop right now,stay safe mate let me know

[29] Counsel’s strategy in his closing address was to focus on the absence of organisation rather, as he put it:

[Y]ou may think, and I would say it’s highly likely and highly probable that this was just an explosion of violence by whoever remained at Ajax Street and a lot of people were joining in. Random episodic actions of assault without any plan.

[30] The closing address is a reasonably focused attack on inconsistencies in the Crown evidence, in particular as to the ability of Mr Mulvey to be involved at all at Bowenvale Avenue (thereby challenging both charges 3 and 4). Working backwards, the closing then tackles the first two charges by suggesting that if Mr Reihana was wrong about what happened at Bowenvale Avenue (before Mr Mulvey left) the jury could not be satisfied that what Mr Mulvey was alleged to have done with a hammer at Ajax Street (charge 2) occurred either.

Sentence appeal

[31] We turn now to Mr Mulvey’s sentence appeal. Mr Chisnall submitted that the Judge erred by not distinguishing Mr Mulvey’s culpability relative to that of Messrs Turner and Gilbert, resulting in a manifestly excessive starting point. Mr Chisnall accepted that a starting point within band 3 of R v Taueki was justified.[18] He submitted that the fact that Mr Mulvey had left Bowenvale Avenue some 12 hours before Mr Reihana’s detainment came to an end ought to have been recognised in the starting point, and Mr Reihana’s evidence that Mr Turner was the ringleader and had inflicted more physical harm on him should also be recognised.

Discussion

[32] We do not think there is anything in the conviction appeal. In context the approach taken by trial counsel to close by working backwards from the strongest point (the absence of Mr Mulvey from Bowenvale Avenue after approximately 6 pm) was open to him and not evidently inconsistent with instructions given. It was a logical means of casting doubt then on the stronger earlier charges that the Crown had brought against Mr Mulvey. While more could perhaps have been said on the issue of common purpose, the 'explosion of violence' submission,[19] and the strong case as to Mr Mulvey leaving the scene from about 6 pm, would not have been lost on the jury. The contrary verdict given by the jury demonstrates an acceptance by it that the assaults meted out on Mr Reihana after Mr Mulvey left the scene were a predictable part and of a common plan or agreement that Mr Mulvey had had a significant part in forming and had not withdrawn from, despite his absence later in the day. There was a strong evidential basis for that conclusion and it could not be said that the verdict on charge 4 was an unreasonable one. Nor was that suggested.

[33] Trial counsel, Mr Garrett, was not asked to give evidence. We think it would be an extremely rare case where affidavit evidence under r 12A of the Court of Appeal (Criminal) Rules 2001 would not be needed before this Court would allow a conviction appeal on that basis. Although Mr Chisnall submitted that the closing address spoke for itself, there may have been aspects of the instructions given by Mr Mulvey to Mr Garrett that bore on the form the address took. As this Court observed in both R v Clode and Hall v R, appellate counsel’s due evaluation of the response given by trial counsel to the particulars of complaint made is really a prerequisite to mounting an appeal based on trial counsel error.[20] We agree with Mr Pike QC for the Crown that there was not such an obvious showing of trial counsel error from the record alone that the R v Clode process could be 'outflanked on the basis of an incomplete survey of what clearly was a co-ordinated defence strategy tailored to the circumstances of the prosecution case.' We note that a challenge made tentatively in written submissions as to the adequacy of trial counsel’s crossexamination was necessarily put aside by Mr Chisnall. It could not responsibly be advanced in the absence of waiver of privilege and evidence from trial counsel and Mr Mulvey himself. None of that was before us.

[34] The short point is it could not be said this was a case where the standard described by this Court in Kaka v R for competent legal representation was breached.[21] A defendant’s right to a fair trial, guaranteed by s 25(a) of the New Zealand Bill of Rights Act 1990, may be engaged where trial counsel fails to discharge his or her professional duty to explain properly the defendant’s case to a jury. Section 25(a) may be engaged because in such a case it is the trial judge who must intervene, even to the extent of declaring a mistrial.[22]

[35] In our view the closing address here was not deficient to that extent. Indeed, brief though it was, we do not think it deficient at all when measured against the guidelines given in Kaka v R.[23] As we observed there, in some circumstances a succinct closing address may be entirely appropriate.[24] That was so here, viewed in context. It was a legitimate approach for Mr Garrett, speaking late in the order and confronting a relatively strong identification-based Crown case, to distill the defence down to its essence. The brevity of his closing address did not deprive Mr Mulvey of an adequate defence. Rather, the address focused the jury appropriately on the most relevant weaknesses in an otherwise strong Crown case. We therefore dismiss Mr Mulvey’s appeal against conviction.

[36] We turn now to the sentence appeal. As we have noted already, it was not challenged that band 3 of the sentencing bands in R v Taueki applied.[25] That starts at nine years. The Judge in both Messrs Turner’s and Mulvey’s cases took a starting point of 10 years’ imprisonment, and in the case of Mr Gilbert (to whom we will turn at a later point in this judgment), nine years’ imprisonment.[26]

[37] We do not consider there was any sufficient basis on which to distinguish Messrs Mulvey and Turner. The Judge was entitled to take the starting point he adopted. The Judge was also entitled to form the view on the evidence that Mr Mulvey was an instigator of the offending, the man who lured Mr Reihana to Ajax Street. Further, that Mr Mulvey’s departure to go to his sister’s house was not (and could not sensibly be suggested to be) a withdrawal from the common plan to detain and assault Mr Reihana. Rather: (1) he left Bowenvale Avenue to comply with bail conditions; and (2) the attacks continuing thereafter were part of a common plan arising directly from the continued detention of Mr Reihana which course of conduct Mr Mulvey had initiated. The final sentence was within range, and there is no basis for adjustment on the basis of inconsistency of sentence vis--vis other defendants.

Appeal by Mr Gilbert

[38] Mr Gilbert advances conviction and sentence appeals.

Conviction appeal

[39] Mr Gilbert was sentenced to nine years and six months’ imprisonment on charges of kidnapping and wounding with intent to cause GBH. He was sentenced to a concurrent term of six years’ imprisonment on a third charge of injuring with intent to cause GBH. Although not expressed, it appears that the starting point adopted of nine years and six months’ imprisonment (as opposed to the 10 years for Messrs Mulvey and Turner) reflected a lesser degree of criminality and, in particular, Mr Gilbert’s absence from Bowenvale Avenue. The charge of injuring with intent to injure, which he was found guilty of, was however a Bowenvale Avenue charge, and his culpability clearly depended on a jury finding that he was party to a common plan to injure Mr Reihana there.

[40] Mr Gilbert’s conviction appeal, as ultimately presented to the Court, differed from its form in written submissions. Those submissions were based on claims of unreasonable verdict and miscarriage of justice (because of a direction supposedly given by the Judge to Mr Reihana in the presence of the jury). The unreasonable verdict ground was advanced only formally and on instructions, and was based on the jury’s rejection of alibi evidence given by four defence witnesses which would have established that Mr Gilbert was not at Ajax Street on the afternoon of 8 August 2015.

[41] The more substantial ground of appeal concerned a direction supposedly given by the Judge to Mr Reihana in the presence of the jury. However, in the course of argument it became apparent from a close examination of the record that the jury were not present when the particular direction was given. Mr Eason, for Mr Gilbert, responsibly did not press that ground further.

[42] The direction given followed a curious passage of evidence at trial following answers given by Mr Reihana under cross-examination that can only fairly be described as evasive. The Judge then spoke to Mr Reihana, apparently in the presence of the jury, and told him that he was not to give evidence 'based upon your attempt to reconstruct what might [have happened]' but that he should give evidence of what he could recollect - that, what he was sure of, not sure of, could remember and could not remember in direct response to the questions put to him. Following that perfectly orthodox direction Mr Reihana became obsessed in answering questions by the proposition that he must not reconstruct his evidence. Over the course of the next hour or so he clings to the expression 'reconstruct' 14 times by this Court’s count. It became a pretext for avoiding answering some questions directly. This resulted in a discussion with counsel at the end of the day, in the absence of the jury. Trial counsel for Mr Gilbert asked the Judge to redirect the witness on the question of reconstruction because he felt the witness was trying to avoid answering questions by the use of that formula. After conferring on the terms of a proposed direction with counsel, the Judge gave an expanded direction on non-reconstruction. It was that direction which erroneously was thought to have been given in the presence of the jury, but the record shows it was not. In essence, the witness is asked to answer the questions directly, by reference to what his recollection was now, based on his present memory of events. There could be no objection to such a direction.

[43] Following the direction, trial counsel got rather more than he bargained for. That is, a very direct answer by Mr Reihana that Mr Gilbert was indeed one of the people at Ajax Street (contrary to the defence case being run by Mr Gilbert and the alibi evidence he was calling). Trial counsel then moved on to other matters.

[44] At the hearing of the appeal we put to Mr Eason that what was really being advanced in the conviction appeal was a claim of trial counsel error: that counsel did not get earlier assistance from the Judge to make Mr Reihana answer questions directly, and having eventually got that direction, either mishandled it or did not press hard enough. Mr Eason accepted that that was the essence of the argument, but told us that his instructions were 'definitely not to advance trial counsel error.'

Sentence appeal

[45] The sentence appeal did not challenge the starting point of nine years’ imprisonment. Rather the submission was one of insufficient parity with other sentences, in particular the sentence given to a Mr Peters of two years and two months’ imprisonment. It was submitted that he had an essential part in the continuing unlawful detention of Mr Reihana and the disparity was too great.

Discussion

[46] There is nothing in the conviction appeal. The direction given by the Judge was entirely appropriate. The extended direction given to Mr Reihana was not given in the presence of the jury. Had it been, however, there would not have been any resultant miscarriage. In substance it was no more than an exhortation to a witness to answer questions directly and by reference to ordinary memory. If anything, the giving of such directions undermined the Crown case rather than supported it. No trial counsel error ground was advanced, and nor was there any adequate premise for that on the limited evidence before the Court. The jury was entirely entitled to take a dim view of the 'alibi' witnesses called by Mr Gilbert and to have rejected their evidence as neither reliable nor credible.

[47] Turning now to the sentence appeal. We are satisfied that Mr Peters’ circumstances were quite different and justified an entirely different sentence. He faced a single charge of kidnaping. He was not directly involved in the violence, but drove Mr Reihana from one address to the other. The Judge found that in doing so he acted under very considerable duress. He pleaded guilty, was remorseful and had real rehabilitative prospects - none of which factors were present in the case of Mr Gilbert. No improper disparity has been demonstrated in these sentences.

[48] Mr Gilbert’s appeals are dismissed accordingly.

Appeal by Mr Reweti

[49] Mr Reweti appeals conviction only.

[50] Mr Reweti was convicted of kidnapping and one count of injuring with intent to cause GBH. The essential Crown case against him was that he was party to the kidnapping and assaults committed by the other defendants while Mr Reihana was detained at Bowenvale Avenue, and that Mr Reweti acted as the guard overnight at Bowenvale Avenue. As Mr Ruane submitted to us, the Crown case depended on the jury being satisfied, beyond reasonable doubt, that Mr Reweti was the man who guarded Mr Reihana in the rear bedroom at Bowenvale Avenue.

[51] The Crown case against Mr Reweti was based on the following strands of evidence: (1) he was present at the Bowenvale Avenue house at the time of the kidnapping; (2) although Mr Reweti denied occupying the room Mr Eihana was detained in, Mr Reweti’s birth certificate was found in it; (3) Mr Reihana used Mr Reweti’s work phone to call for help at 5.30 am; and (4) Mr Reweti’s track pants had a bloodstain corresponding with Mr Reihana’s DNA.

[52] The appeal is mounted on the basis that a properly directed jury could not reasonably have convicted Mr Reweti based on that evidence. It may be observed that an application for discharge on the same basis was made at the conclusion of the Crown case. The Judge declined it.[27]

Discussion

[53] It was unchallenged that Mr Reweti was present in the house. He was in fact an occupant of the house. He identified a different (front) bedroom as his room, and denied that the room in which Mr Reihana was held was his room.

[54] The most important aspect of this evidence was identification. Mr Reihana was shown in his police interview a number of photographs. The process was not a formal identification process under s 45 of the Evidence Act 2006. Mr Reihana identified one of the photographs as being the man that 'must have been the one that was in the room with me', although he noted that the individual who guarded him at Bowenvale Avenue never took his hoodie off. That photograph is, however, of Mr Madden and not Mr Reweti. Mr Madden was also at Bowenvale Avenue, but was not charged. Subsequently on 4 September 2015 Mr Reihana was shown an eightphoto montage compliant with s 45 of the Evidence Act. It included a photograph of Mr Reweti. Mr Reihana did not identify Mr Reweti.

[55] In our view, and despite the non-identification of Mr Reweti (and tentative identification of Mr Madden), there was sufficient circumstantial evidence available to the jury such that it cannot be said that the verdict was an unreasonable one. That is, in terms of R v Owen the jury could reasonably have been satisfied to the required standard that the accused was guilty, having regard to all of the evidence.[28] Despite the uncertainties of the identification evidence, and the possibility that Mr Madden was the guard, there was significant circumstantial evidence pointing the other way.

[56] Primary among those is the fact that the cellphone which Mr Reihana used to call the police was Mr Reweti’s work phone. Yet the evidence was that: (1) the guard had used the phone himself; and (2) it was password protected, save for emergency calls. Those were strong factors pointing to the guard being Mr Reweti. Secondly, there was the presence of Mr Reweti’s birth certificate documents in that room. Thirdly, there was the presence of blood on his trousers which appeared to have come from Mr Reihana. Although there was a possibility that blood was transferred by only brushing contact, the jury was entitled to take all of these matters into account in reaching a conclusion, to the criminal standard, that Mr Reweti was the man who stood guard over Mr Reihana that night. The evidential strand was not insufficient to bear that weight, and the jury’s conclusion, after a careful closing and unimpeached summingup on the question of proof, in relation to Mr Reweti, cannot be assailed.

Appeal by Mr Keefe

[57] Mr Keefe challenges conviction and sentence.

[58] Following denial of legal aid Mr Keefe was unrepresented on appeal. This Court took steps to have that decision reviewed, but Mr Keefe preferred to remain unrepresented. With the assistance of a prison counsellor, Mr Keefe filed written submissions. The conviction appeal focused on denial of a fair hearing because of jury bias by virtue of Mr Keefe’s seniority within and membership of the Mongrel Mob and an alleged denial of his right to examine witnesses for the prosecution or to call witnesses for the defence.

[59] On his sentence appeal he submits the sentence of six years and six months’ imprisonment was manifestly excessive.

Discussion

[60] Mr Keefe was formally represented at trial by the same counsel as appeared for Mr Gilbert. No trial counsel error ground was advanced. Nor was evidential foundation for such ground laid. It cannot be said therefore that Mr Keefe was denied fair trial rights in being unable to question Crown witnesses or call witnesses of his own

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. Nor is there anything in the ground that he was denied a fair trial because of jury bias by reason of his membership of the Mongrel Mob. That membership is simply a fact, one plainly relevant to the circumstances of the charges, and a consequence of Mr Keefe’s own choice of associates. The Judge gave a strong direction to the jury in standard terms used by trial judges where a defendant’s gang affiliations are in evidence. The Judge said: Throughout this trial you have heard references to gangs and, in particular, to the Mongrel Mob, in respect of which the defendants and Mr Reihana have associations. Those particulars are unavoidable in this trial. It is very important, however, that you put aside any negative feelings you may have about gangs and people that involve themselves in such groups in order that you go about your deliberations in an entirely objective and dispassionate manner. In the context of this trial, I need to stress that requirement to you. That direction was entirely sufficient in our view, and to have said more would have given undue emphasis to the matter.[29] [61] The sentence imposed by Mander J reflected the jury’s findings that Mr Keefe was himself directly involved in the attack on Mr Reihana at Bowenvale Avenue. The Judge identified an available starting sentence in the range of six and a half to 10 years’ imprisonment.[30] The Judge took a starting point at the bottom end of that range. Although Mr Keefe had 92 prior convictions, the Judge did not uplift sentence for his record. No remorse could be identified, although there was a willingness to engage in restorative justice, and of course a discount for a plea of guilty was not available because none was entered. Because of Mr Keefe’s age and the reducing offending profile, the Judge decided not to impose a MPI. That course was merciful, but entirely appropriate. But the consequence of this review is that in our view no basis has been identified to interfere with the sentence imposed by the Judge, which was an available one and not manifestly excessive. Result [62] The applications for extensions of time to appeal are granted. [63] The appeals are dismissed. ------------------------------------------------------------------------------ [1] R v Mulvey [2016] NZHC 2568 at [15]. [2] Mr Reihana’s evidence was that he deliberately directed his assailants to unrelated locations. [3] R v Mulvey, above n 1, at [47]–[49]. [4] At [50]–[52]. [5] At [53]–[55]. [6] R v Keefe [2016] NZHC 2569 at [44]–[45]. [7] At [47]–[48]. [8] At [46]. [9] R v Corbin [2016] NZHC 2570 at [31]. [10] R v Peters [2016] NZHC 2331 at [49]. [11] R v Corbin, above n 9, at [30]. [12] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J. [13] Tuia v R [1994] 3 NZLR 553 (CA) at 555. [14] R v Sungsuwan, above n 12, at [101] per Tipping J. [15] Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [190]. [16] R v Scurrah CA159/06, 12 September 2006 at [18]. [17] See above at [13] of this judgment. [18] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA). [19] See above at [29] of this judgment. [20] R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [29]; and Hall v R, above n 15, at [18], [28]–[30] and [53]–[55]. See also Morya v R [2016] NZCA 325 at [18]. [21] Kaka v R [2015] NZCA 532 at [27]–[35]. [22] At [29]. [23] At [35]. [24] At [41]. [25] See above at [31] of this judgment. [26] R v Mulvey, above n 1, at [34]. [27] R v Reweti HC Christchurch CRI-2015-009-7255, 2 September 2016. [28] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17]. [29] See R v Milligan [2009] NZCA 344 at [20]–[21] and [39]. [30] R v Keefe, above n 6, at [23].
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