R v Waikato CA162/96 [1996] NZCA 236 (20 August 1996)

Last Updated: 21 January 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND CA 162/96}

_{THE QUEEN}

V

ANDRE TIPI RANGI WIREAU WAIKATO

Coram: Gault J Tompkins J Heron J

Hearing: 19 August 1996

Counsel: D J Boldt for Crown

A J S Snell for Appellant

_{Judgment: 20 August 1006}

_{JUDGMENT OF THE COURT DELIVERED BY HERON J}

The appellant was originally charged with five charges concerning events at an address at 63 Liverpool Crescent, Flaxmere, on the 18th, 21st and 28th of July 1995. He was convicted of three charges, one on the 21st of July of stealing a leather jacket belonging to Hayden George Merry, and on the 28th of July demanding cannabis with menaces from Mark Robert Merry, Hayden’s brother, and wounding Hayden Merry with intent to cause grievous bodily harm. The events arose out of visits made by the appellant and one other (who was subsequently acquitted of all charges), at the address of the Merry brothers. The appellant and the other co-accused were members of the Mongrel Mob in Hastings. Mark Merry was apparently a small time dealer in cannabis and was visited by the appellant for the purposes of obtaining cannabis. The Crown case was that that cannabis was extorted by threats of violence accompanied by an

indication that this was “Mongrel Mob” turf and that Mark Merry to continue to operate would have to acknowledge the mobs entitlement to cannabis supplies whenever they chose to make a demand.

The two events in respect of which the jury convicted the appellant, were a week apart. Not a great deal turns on the number of visits that were made to the house for it is common ground that on the last of the visits the Merry brothers offered resistance to the demands made by the appellant and his co-accused. A fight developed, a rifle was discharged and injuries were suffered by Hayden Merry.

The first count in respect of which the jury found the appellant guilty, involved the stealing of a leather jacket and the factual issues surrounding that incident are not in dispute. Of more significance in this case having regard to the conviction for wounding with intent to cause grievous bodily harm, involve the events one week later.

It was early evening. The appellant and his co-accused entered the Merry dwelling without warning. According to the Merrys, the appellant was armed with a claw hammer, spoke to Mark Merry complaining that he had still been dealing in cannabis, and he was in an aggressive mood. He then forced Mark Merry into a bedroom. He demanded a pound of cannabis and then when he had left the room to have a look around the house Mark Merry took out his .22 calibre rifle which he had in the wardrobe. He loaded it and he walked back into the hallway and pointed the gun at the appellant who moved quickly into another room. Mark Merry moved to the kitchen where the co-accused was, again presented the rifle, this time at the co-accused where a struggle ensued and a shot was fired. At that point the fight appeared to break into two parts. The co-accused and Mark Merry struggling over the gun, and Hayden Merry and the appellant fighting close by. According to Hayden Merry, the appellant reappeared holding the hammer. Following a struggle over the hammer the appellant got on top of Hayden and took the hammer which for a short time Hayden had managed to secure. He was then hit about the head five or six times and gave up further resistance. Mark Merry rang an ambulance. The appellant who was bleeding and who had suffered a fractured skull was taken to hospital. His injuries were as a result of the attack he had suffered at the appellant’s hands using a hammer.

The appellant gave evidence and a version of events indicating he had gone to the address with a view to purchasing cannabis. He gave a similar version as to the events with the rifle as the complainants’ but said that it was Hayden who had the hammer. He agreed that they had fought over the hammer and that he had finally lashed out and hit Hayden in the head. After overcoming the Merry brothers the appellant and his co- accused left with the gun and the hammer disposing of them over the nearby Pakowai bridge.

In order to consider certain matters going to the conduct of the trial with agreement of counsel we allowed further evidence concerning pre-trial publicity and other events which involved the Mongrel Mob in the locality where the offending had occurred. This included an affidavit of counsel for the co-accused and counsel for the Crown. This dealt also with the discussion which the Judge had with three jurors as to their availability to continue as jurors on the Monday. In addition the Judge has supplied a memorandum on that matter as well.

The appellant and his co-accused were members of the Mongrel Mob. An Assignment television programme had screened a few days before relating to the Mongrel Mob’s drug dealings in the Auckland region. That followed a trial in Auckland of gang members. Counsel were concerned that there would be transferred prejudice arising from the programme to the two accused who had made no secret of their Mongrel Mob membership when they visited the Merry house. The appellant wore his gang jacket and patch at the time of these events.

On Thursday 21st March 1996 the day the trial commenced, it was reported in the local newspapers that threats had been made by a Mongrel Mob member to teachers in Camberley School in Hastings, near Flaxmere where the events the subject of the charges took place. It was said that an individual gang member had threatened the teachers and pupils and school property. It was reported a child of a Mongrel Mob member was disciplined and the threats had followed. Clearly these were matters of considerable concern for counsel at the time and the impact they might have on a fair trial.

Prior to the trial recommencing on Friday 22 March, counsel applied to have the trial abandoned on the basis of prejudice to the accused caused by the overnight publicity coupled with the likely impact of the earlier Assignment television programme. In essence it was counsels submission that the combination of the earlier television documentary, the Camberley School incident and the charges which involved Mongrel Mob tactics and behaviour as suggested by the Crown, no fair trial could be guaranteed these accused at that particular time and place.

It is to be remembered that these charges involved discrete incidents at the home of the complainants. There was no wide ranging public implications so far as gang behaviour generally was concerned. Furthermore, it was we think unlikely to attract much sympathy or prejudice one way or the other from the jury as one of the complainant’s was a drug dealer and the accused gang members.

Notwithstanding the impact of the events at the time and the concern that responsible counsel felt then, we do not think this was a case which could not have been dealt with by a firm direction from the Judge. In the early part of his summing up the Judge told the jury to come to their verdict solely on the evidence heard in court. He asked them to put aside anything they might have heard about the case or the people involved in it prior to coming to court. We pause to note that that must have been a timely observation in the circumstances of this case. Then he went on to tell them to reach their decision free from prejudice or sympathy. In particular the Judge said:

“For Mr Waikato Mr Snell says that Waikato is not on trial for his membership of a gang. He is quite correct about that Members of the Jury. I emphasise it no further. It has been emphasised as strongly as it could possibly be.”

Reinforcing our faith in the jury’s ability to put aside such matters we note the acquittal of the co-accused on all charges notwithstanding membership of the gang. The appellant was likewise acquitted on two counts.

It could be argued that a stronger direction could have been given dealing with the specific events which had impacted on the trial. That may have only reinforced the

adverse factors in the jury’s mind and we are not at all persuaded that the brief but firm endorsement of what counsel had said was not the best course. We are not persuaded that there was any likelihood of a miscarriage of justice.

During the course of the trial one of the 11 jurors was observed by the appellant to be asleep, and was reported to his counsel. Counsel observed the juror but only for one minute and after that she appeared to wake up, if she was in fact asleep. The appellant has not given any affidavit as to the duration of these events he observed. There is no evidence before us to suggest that the juror missed any significant part of the evidence and whilst it was raised with the Judge at the same time as the submission relating to surrounding prejudicial publicity we think there is nothing in this point. There is simply insufficient evidence to base any firm conclusion on it. It is to be remembered that jurors are reminded of aspects of the evidence in addition to listening to it in the course of counsels addresses and the Judge’s summing up.

A further concern about the trial occurred as it became plain that the case would not finish on Friday. It is common ground that the Judge in an effort to ensure that jurors were available on Monday, interviewed three jurors as to their particular difficulties. In his report the Judge said:

“During the afternoon of Friday 22 May it became clear that the duration of the trial had been underestimated and that a further hearing day was required.

I informed the jury of the alternative of continuing on the following Saturday or Monday and invited them to retire, to make necessary enquiries and reassessments concerning their commitments and then to advise me accordingly.

Three jurors reported difficulties and were spoken to by me in Chambers in the absence of

Counsel.

Two were available to resume on Monday but not on Saturday.

The third was available Saturday but not Monday when his employer, Napier City Council, required his attendance at a seminar.

Fortified by a promise that the Registrar would meet the cost of return travel to Napier the juror again petitioned his employer and was given the necessary leave.

The trial resumed with a jury of 11 on Monday morning and was concluded that day.”

Mr Snell on behalf of the appellant said that both accused were agitated at the possibility of the Judge seeing the jurors on their own. Generally speaking it is desirable for counsel at least to be present in such cases or if there are particular personal matters where it would be inappropriate for counsel to be present and the Judge needs to communicate with a juror, then an appropriate transcript is to be kept and there is a court registrar in attendance as well. See the recent discussion on this matter in R v Pearson CA 48/96 29/7/96. Whilst this does not appear to have been done on this occasion, we do not consider the Judge’s attention to such mechanical matters gives rise to any concern about the fairness of the trial. It was in everyone’s interests that the jurors be available on the Monday and the Judge relieve them of the pressure that they would otherwise have been under to meet their commitments as jurors.

Finally there is a criticism of the Judge’s summing up on the issue of self defence. In directing the jury on the charge of wounding with intent to cause grievous bodily harm, the Judge directed the jury on self defence. Clearly the situation had arisen here with the presenting and discharge of the firearm by Mark Merry that self defence might well be perceived by the jury as applying to the action of the appellant. No criticism is made of the Judge’s directions in that regard apart from one passage at the end of his summing up in which he said

“If you consider that the accused here had armed himself with a claw hammer long before any issue of self-defence arose, if you believe the complainants who say that he arrived at their house with that claw hammer, then that might significantly affect the credit which you gave to the self-defence scenario.”

We think that this was a comment well justified on the facts because it had been the complainant’s version that at all times the appellant was the aggressor and had appeared at the house with the hammer. That was relevant to the overall background against which the two fights that had developed had to be measured and questions of self-defence assessed. Furthermore the Judge said later on:

“Mr Snell says essentially that this was self-defence on the part of Mr Waikato and further on the part of Mr Waikato was defence of Mr Jeths, another person, and that in those circumstances a gun having been fired, Mr Waikato was justified in all that followed. That being the case you must acquit him on the basis of self defence. That is a matter for you so

far as the assaultive charges are concerned Members of the Jury. The property charges of course do not give rise to questions of self defence.”

When the earlier comment referred to is looked at in that light we see no ground for criticism in that regard. On all those four points relating to the appellant’s trial and conviction we find no grounds for disturbing the jury’s verdict. The appeal against conviction is dismissed.

Appeal against sentence

Waikato also appeals against his sentence of five years on the wounding charge. It must be remembered that this sentence had to reflect not just the wounding but the demanding with menaces and the theft charge. Both of those separate offences reflected stand-over tactics of the most unpleasant kind and would normally carry a term of imprisonment in their own right. We think that looked at in that light a total sentence of five years is appropriate.

Whilst the Judge referred to the appellant’s 11 year criminal history ignoring a period of four years when no convictions are recorded, this serious reoffending called for a deterrent sentence against like minded gang members.

There was a very violent assault on a man when it would seem he was near defenceless. It left him with a fractured skull and a permanent cosmetic injury where the blow of the hammer met his forehead. It is a sentence we think in line with the tariffs suggested in R v Hereora [1986] 2 NZLR 164 in particular if one has regard to the other separate offending by the appellant against the other man.

The appeal against sentence is likewise dismissed.

Solicitors:

Crown Solicitors Office, Wellington for Crown

Bannister & von Dadelszen, Hastings for Appellant