R v Newton [2024] NZHC 1411 (31 May 2024)

Last Updated: 9 July 2024

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-025-838 [2024] NZHC 1411

THE KING

v

CHARLES SHANE NEWTON

Hearing:	30 May 2024
Appearances:	M B Brownlie for Crown (by way of VMR) K H Cook for Defendant
Judgment:	31 May 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 31 May 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

R v NEWTON [2024] NZHC 1411 [31 May 2024]

• [1] Mr Charles Newton (also known as Mr Newton Te Kaahu) is charged with intentionally causing grievous bodily harm,¹ kidnapping,² and participation in an organised criminal group.³ He has applied to have these charges dismissed on the basis a properly directed jury could not reasonably convict him on the available evidence.⁴

Background

• [2] Mr Newton is for trial on these charges, together with a number of other defendants, all of whom are members or have associations with chapters of the Mongrel Mob based in Mataura. It is alleged that, on 9 August 2022, a group of Mongrel Mob members travelled to Invercargill and went to the address of a fellow Mongrel Mob member, Shishoine Newton Te Kaahu (Mr Newton Te Kaahu). Mr Newton was also at the address at this time. Mr Newton Te Kaahu was physically attacked and transported against his will back to the gang’s premises in Mataura, where he was detained and subjected to a further beating. Mr Newton Te Kaahu sustained a number of broken ribs, a fractured eye socket, and lacerations and bruising to his skull and body.

• [3] The Crown’s case is that this serious assault and kidnapping was punishment for Mr Newton Te Kaahu having disobeyed a leader of the local Mongrel Mob of which he was a member. The defendant, Mr Newton, is the uncle of the victim and also a member of the same gang.

Legal principles

• [4] The approach to be taken to a s 147 application under the Criminal Procedure Act 2011 that is advanced on the basis of evidential sufficiency is well understood. A court may dismiss a charge to be tried by a jury if satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.⁵ If the evidence is sufficient in law, if accepted, to prove the case, the judge should leave the question of

¹ Crimes Act 1961, ss 188(1) and 66 — maximum penalty 14 years’ imprisonment.

² Sections 209 and 66 — maximum penalty 14 years’ imprisonment.

³ Section 98A — maximum penalty 10 years’ imprisonment.

⁴ Criminal Procedure Act 2011, s 147.

⁵ Section 147(4)(c).

the defendant’s guilt to the jury and not withdraw it on evidentiary grounds.⁶ Matters of credibility and weight are for the jury to determine in all but the most extreme circumstances.⁷

• [5] For the purpose of assessing the question of evidential sufficiency, the Crown case is to be taken at its highest.⁸ Where the Crown’s case depends on the drawing of inferences, the question of whether such inferences should be drawn is an issue that should be left to the jury unless the evidence is not capable of supporting the inferences upon which proof of the charge relies.⁹

The application

• [6] The application for dismissal is advanced on the basis there is no evidence capable of demonstrating that Mr Newton entered into a common purpose with others, or intended to assist or encourage others who participated in the assault or detention of Mr Newton Te Kaahu. It was argued that Mr Newton’s mere presence at Mr Newton Te Kaahu’s address where the first assault took place was insufficient to make him a party to the attack and that, as a matter of law, a properly directed jury could not reasonably convict the defendant.

• [7] Similarly, it was argued that, in the absence of any evidence to sustain Mr Newton being a party to the kidnapping and grievous bodily harm charges, there was insufficient evidence to prove his involvement in an organised criminal group. While Mr Newton’s membership of the Mongrel Mob was not in dispute, it was submitted that by itself was insufficient to prove the charge. Mr Brownlie, who appeared for the Crown, accepted that was the case, and that the organised criminal group charge was dependent upon Mr Newton having abetted the other members of the group that came to his nephew’s address and attacked him. That was an appropriate concession.

⁶ Parris v Attorney-General [2003] NZCA 400; [2004] 1 NZLR 519 at [10].

⁷ At [14].

⁸ R v Flyger [2001] 2 NZLR 721, (2000) 18 CRNZ 624 at [17]–[18] and [25].

⁹ At [18] and [25].

The evidence

• [8] The Crown’s case against Mr Newton is largely dependent upon the evidence of two witnesses, Mr Newton Te Kaahu himself and Samuel Weston, who was also a member of the Mongrel Mob and accompanied other members to the Invercargill address. Mr Weston’s statement contains little detail of what occurred at the address, other than that Mr Newton Te Kaahu “got a hiding in the shed out the back” before he was taken in the same car “to the pad”, where he received another “hiding”. Mr Weston refers to the actions of some of his associates and that “[a]ll of us were giving him hits ...”. However, apart from a reference to Mr Newton being present, he makes no mention of him.

• [9] Mr Newton Te Kaahu’s statement describes what he calls the “red Mataura Mob car” arriving at his partner’s address where he was staying. He identifies a number of people known to him as fellow members of the Mongrel Mob, including Mr Weston. He says he was yelled at by a person he knows to get in the car. This man started to run towards him, and caused Mr Newton Te Kaahu to flee to the shed. He then describes being attacked by various Mongrel Mob members. This assault included the use of a hammer with which he was hit in the back of the head. He stated, “[e]veryone kept punching me and kicking me”. Mr Newton Te Kaahu then stated:

76. While I was lying on the ground using the work bench as some protection I managed to catch my breath slightly and remembered Chaz Dog was in the shed, I tried to roll over to him, over the couch and to his feet but I couldn’t get up.

77. He just let it all happen.

78. He was telling me to get up, but I couldn’t.

• [10] Chaz Dog is the defendant, Mr Newton, and his presence in the shed will be explained shortly.

• [11] Mr Newton Te Kaahu then describes being physically picked up and taken to the “red Mob car” before being driven to the Mataura pad. He describes what was said and done by various Mongrel Mob members while travelling to Mataura and then being physically removed from the vehicle upon its arrival at the pad, where he was punched and kicked. Mr Newton Te Kaahu states: “It was a full muster, all available

members were there but because of the state I was in I can’t recall exactly who was there”, and that there were too many people to tell who did what. However, the Crown accepts that Mr Newton never left the Invercargill address and was not present at the Mataura gang pad. Mr Newton Te Kaahu’s evidence further details the group’s assault on him before he lost consciousness.

• [12] There is evidence of Mr Newton Te Kaahu having subsequently been driven to another address in Mataura, where the “Captain” of the local chapter admonished him and imposed restrictions on his movements as a further punishment. This was coupled with a warning the assault would be repeated if he did not comply. Mr Newton Te Kaahu was supposed to be taken home at that point, but Mr Weston took him to the Gore Hospital instead.

• [13] Search warrants were obtained for the two addresses where the assaults took place and for the Mongrel Mob car. Forensic examinations of those scenes revealed areas of bloodstaining, which subsequent analysis confirmed was Mr Newton Te Kaahu’s blood.

Discussion

• [14] The Crown accepts that mere presence at the scene of crime is not sufficient to make a person a party to an offence, even in circumstances where they could have done something to stop the offence from occurring.¹⁰ The Crown’s case in respect of Mr Newton is dependent upon establishing that his presence in the shed abetted or encouraged others to assault and kidnap Mr Newton Te Kaahu and that this was his intention.

• [15] In R v Schriek, the Court of Appeal stated:¹¹

... If “by his countenance and conduct” the secondary party intentionally is giving encouragement of which the principal offender could be aware, even if only by virtue of being conscious of the presence of a group of people behaving in similar fashion, in the generality of cases there will be sufficient evidence of abetting.

¹⁰ Charnley v R [2013] NZCA 226, (2013) 26 CRNZ 264 at [45].

¹¹ R v Schriek [1996] NZCA 285; [1997] 2 NZLR 139 (CA), (1996) 14 CRNZ 449 at 146-150.

• [16] This is the basis upon which the Crown says Mr Newton can legitimately be found guilty by a jury. It is the Crown’s case that Mr Newton’s actions, by electing to remain in the shed where the assault took place and not going inside the house where Mr Newton Te Kaahu’s partner and children were, could be interpreted as signalling his approval and intention to encourage others in their attack. Mr Brownlie emphasised that Mr Newton did not help his nephew. It was argued his telling him to “get up” could be interpreted as Mr Newton’s support and encouragement of the assault, and that by his presence he intended to lend weight to the group, if only in terms of numbers. However, I do not consider that to be an inference that can reasonably be drawn from the available evidence.

• [17] The evidence discloses the attack on Mr Newton Te Kaahu was for the purpose of administering some form of violent internal punishment on a fellow gang member. Had Mr Newton been part of the group that arrived together at the address, his presence could, in those different circumstances, have been sufficient to draw the inference that he intended to abet the offending, even in the absence of him joining the violence. However, that is not the case. I do not consider, when taken at its highest, that the apparent indifference Mr Newton showed while his nephew was being beaten in the shed, is sufficient to establish that his failure to provide assistance or his words, to “get up”, were intended to encourage the other gang members in their attack.

• [18] The gang members set out from Mataura in the distinctive Mongrel Mob vehicle for the apparent purpose of uplifting Mr Newton Te Kaahu in order to administer a physical beating to him. There is no evidence Mr Newton was privy to this plan. To the contrary, there is evidence of Mr Newton having been together at the Invercargill address the previous night, when uncle and nephew were aligned about another internal gang dispute regarding the making of a bail address available to another gang member. Mr Weston had been sent around to assault Mr Newton for not cooperating and Mr Newton Te Kaahu had interceded on his uncle’s behalf. Mr Newton was staying in the shed at the time and it is common ground he remained at the address overnight. There is no evidence of Mr Newton being aware of the Mataura Mongrel Mob’s plans for his nephew, or that he knew anything about it until Mr Newton Te Kaahu fled to the shed the following afternoon.
• [19] I do not consider Mr Newton remaining in the shed, rather than retiring to the house, can be reasonably interpreted as signalling his support or encouragement to the other Mongrel Mob members of his nephew being assaulted. It could equally be said he remained there to ensure Mr Newton Te Kaahu came to no critical harm. His motives for effectively doing nothing, while possibly dismaying to Mr Newton Te Kaahu, are speculative, but I do not see how it could reasonably be interpreted as support for the attack, particularly given all the surrounding circumstances.

• [20] Nor do I consider his statement to his nephew to “get up” can reasonably be a basis upon which to infer that by those words he intended to align himself with or encourage the gang members in their attack on his nephew. There are no other actions, either before or after Mr Newton Te Kaahu was assaulted in the shed, that are capable of indicating that was his intention. The only indications are to the contrary. Mr Newton did not go with the other gang members when they took his nephew away, nor had he had any prior knowledge or involvement before they entered the shed.

• [21] The failure by Mr Newton to intervene or to assist his nephew in the shed is not by itself capable of rendering him a party. In the absence of any evidence he held some seniority or position in the gang hierarchy that enabled him to prevent or stop the attack that had apparently been ordered by its “Captain”, I do not consider a jury could reasonably conclude his inaction amounted to encouragement, any more than perhaps being the product of his own concern about what might happen to him should he seek to assist his nephew. Mr Newton’s intention at the time is required to be proved beyond reasonable doubt but the evidence only invites speculation.

Decision

• [22] I am not satisfied there is sufficient evidence to require Mr Newton to stand trial on the three charges he currently faces. I do not consider a reasonable inference is available to the jury even should they accept the Crown’s case at its highest, that Mr Newton intended to lend his weight and support to this planned piece of violence from his presence at the time his nephew was assaulted in the shed. It being accepted that all three charges stand or fall on Mr Newton’s alleged intention to abet the physical beating of his nephew in the shed, it follows the application must be granted.

Result

• [23] The application for discharge, pursuant to s 147 of the Criminal Procedure Act, will be granted. Mr Newton is required to be brought to Court without delay to be formally discharged.

Solicitors:

Crown Solicitor, Invercargill