The Queen v Hoko [2003] NZCA 128; (2003) 20 CRNZ 464 (30 June 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

420/02THE QUEEN

v

SHANE THOMAS HOKO

Hearing: 28 May 2003

Coram: Gault P Fisher J O'Regan J

Appearances: E G T Faleauto for Appellant
K Raftery for Crown

Judgment: 30 June 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] There are a number of concerns in this case.
[2] The appellant was convicted of murder and a related offence under s191(1) Crimes Act 1961 after trial by jury in the High Court at Auckland. On 12 November 2002 he was sentenced to life imprisonment with a minimum sentence of 17 years to be served before being eligible for parole. A concurrent sentence of imprisonment was imposed in respect of the associated offence.
[3] The notice of appeal notified five grounds of appeal against conviction, all directed to the Judge’s summing up to the jury, and (in effect) two grounds of appeal against the sentences.
[4] All but one of the grounds of appeal against conviction and each ground of appeal against the sentences were the subject of written submissions filed prior to the hearing of the appeal by Mr Hart, who had represented the appellant at his trial. Careful reading of the case prior to the appeal hearing had suggested to the members of the Court that at least the first ground of appeal was of some substance and would require full argument. It was with considerable surprise that the Court found that the appellant was represented by Mr Faleauto who informed the Court that he did not consider he could advance argument in support of the appeal against conviction. He wished to make oral submissions only in respect of the minimum sentence imposed.
[5] When asked why Mr Hart, who was counsel assigned by the Legal Services Agency, was not appearing, Mr Faleauto said he did not know and that he was appearing “pro bono”. Although he had had some previous involvement with the case before the preliminary hearing in the District Court, Mr Faleauto plainly was not prepared for detailed argument on the appeal against conviction.
[6] The Court was left to investigate the strength of the first ground of appeal with Crown counsel. Mr Raftery had not been trial counsel but he was able to arrange for Mr Marchant, who had been, to assist with information on certain aspects of the trial.
[7] In the end we are satisfied that we have been able sufficiently to review the conviction. By reference to the written submissions filed, the summing up has been considered in light of the evidence given and the explanations we have sought and obtained, where necessary, on the critical issues in the trial, and on the cases put to the jury respectively by the Crown and the defence.
[8] Nevertheless we consider it well short of the duty of responsible counsel to file submissions extensively critical of the fairness of the Judge’s summing up and then not appear to support them.

The unfairness of the summing up

[9] In support of the first ground of appeal, that the summing up was unfair, the written submissions contended that the summing up was “unfairly balanced in favour of the case for the Crown”; that the Judge failed adequately to summarise the defence case and “erred in expressing a strong opinion on the evidence by negating the defence case and inviting disbelief in the corresponding evidence”. It was submitted that the Judge did not leave the slightest doubt as to the correct verdict in the case.
[10] The appellant’s trial was for the murder of a seventeen year old woman whose body was recovered from a drain alongside Cuffs Road in Patumahoe on 3 December 2001. A man was seen from the road on top of, or beside, the victim. When called out to, the man left the victim, went to a car parked on top of the bank, produced a firearm and threatened the witness and his children who were with him. The man made off in the car.
[11] The Crown led evidence from numerous witnesses to establish that the man who had been seen at the scene was the appellant, although it transpired that his presence there was not contested.
[12] The central issue at the trial became whether the Crown could establish that the deceased was killed by the appellant, in light of his claim that she was killed by his associate Mr Matthews.
[13] The essential facts and the manner in which the Judge summarised the Crown and defence cases can be conveniently taken from paras 40 – 45 of the summing up. The context was a direction that for the Crown to establish homicide it must show the killing of one person by another.

40. Here the Crown’s case is straightforward. It says that, earlier on 3 December 2001, Mr Matthews and Mr Hoko were together in a Holden Commodore vehicle in Papakura where they picked up Ms Hargreaves. She was planning to hitchhike to Invercargill. They spent some hours with her in the Pukekohe area. During this time, the three of them smoked marijuana and drank some beer. According to Mr Matthews’ evidence, at one stage Mr Hoko made a threatening sexual approach to Ms Hargreaves. The existence of a sexual overtone was confirmed by what Ms Hargreaves said to her boyfriend, Mr West, in a telephone discussion at about 2.45pm – the same time, you may note, as she and Mr Hoko pulled into the service station in Pukekohe in his car.
41. At one stage, Mr Matthews and Ms Hargreaves drove together to another petrol station at Pukekohe. They went on an errand also to collect some beer. On the way back they got lost – the Crown says this is a measure of Mr Matthews’ unfamiliarity with Pukekohe. They went to the house of Mr Hoko’s sister. Sometime before 3.00pm – in fact, it must have been before 2.45pm – Mr Matthews left and returned to West Auckland. The Crown says Mr Hoko and Ms Hargreaves left that house separately in his green Toyota. The two of them, as you have heard, went to the service station at Pukekohe at about 2.45pm. From there, the Crown says, he drove her to Cuffs Road in Patumahoe. The two were seen together in the Toyota by a number of witnesses between 3.45pm and 5.00pm. At some stage, the Crown says, Ms Hargreaves attempted to leave the vehicle, but was caught by Mr Hoko. He then strangled her, the Crown says, in the ditch. The Crown says this is the event which Mr Muirson witnessed when he first saw the car.
42. Mr Hoko, on the other hand, denies killing Ms Hargreaves. He admits that he was with her in the ditch beside his car at about 5.00pm, when Mr Muirson arrived. However, he says that he was carrying out either mouth to mouth resuscitation, or was pretending to kiss her. He says he was not responsible for the fatal attack on Ms Hargreaves. He says this was the work of Mr Matthews. He acknowledges that, earlier in the afternoon, he was with Ms Hargreaves in the car in the same spot where it was later found on Cuffs Road.
43. However, he says that Mr Matthews drove there independently as well, in his Holden. After both cars parked, Mr Hoko says, Mr Matthews directed him, in tough language to swap cars and Hoko says that he complied with this direction. He says he drove in the Holden to a place where nobody saw him for over an hour, and to quote him “killed time by drinking beer and smoking marijuana”. He says when he returned to where his car was parked originally, he spotted Ms Hargreaves there in the ditch. Shortly afterwards, he says, Mr Matthews came running out of the long grass and said words to the effect that he did not mean to do it, but that he thought she was dead. Mr Hoko says that he jumped out of the car, and while he was looking at Ms Hargreaves, Mr Matthews jumped into his car and told him to make himself scarce. He says Mr Matthews drove away.
44. Mr Hoko says he did not know what to do. All he could see was Ms Hargreaves lying in the ditch. He took her pulse but found nothing. Nevertheless, he assumed that she was alive because he could see bubbles forming at her mouth. He tried to give her mouth to mouth. He heard a car but continued on with his resuscitation. Later he heard the van. He heard the driver yell out, “She better not be dead” or words to the effect. He then pretended to kiss Ms Hargreaves to make it look as though they were together. He then, to quote him, “just freaked out” and got the gun from his car. He presented it at Mr Muirson, then he drove away at speed and arrived at Gallagher Road at Ms Beloe’s house.
45. He admits hiding from the Police, changing his appearance and then torching his vehicle, all to avoid detection. He said he did this because he was nervous or scared. Mr Hoko says that he lied to his wife and his friend because he panicked, and because he thought that if he made up a different story, nothing would happen and Mr Matthews would not be implicated. He says that he was simply obeying the code of silence followed by Black Power supporters. This means that you do not inform or give information about another person to the Police or prosecuting authorities.

[14] We have carefully compared the summary of the defence case in paras 42 – 45 with the summary set out under the heading “Background” in the written submissions on appeal. We are satisfied that the Judge’s summary captures all the significant points noted by counsel. Apart from criticising the Judge for describing the Crown case as “straightforward”, the written submissions take issue with only one other aspect of this summary of the respective cases. It was said to have been unfair for the Judge to combine reference to the “sexual overtone” and the phone call in which the deceased mentioned this to her boyfriend with the reference to the appellant and the deceased being together at the service station. As we understand it, the point is that in the telephone call the deceased related an incident that had occurred some time earlier when both the appellant and Mr Matthews were with her. Mr Matthews gave evidence of a threat by the appellant which the appellant denied in his evidence. By itself we do not think this passage in the summing up would have impacted on the jury as indicating a preference for Mr Matthew’s evidence. That there was some support for it in the deceased’s phone call was a matter the Crown relied on and that was appropriately referred to when summarising the Crown case. That the phone call was made at a time when Mr Matthews was not present, and probably when the appellant was out of the car at the service station, had no significance and we do not accept that mention of it was prejudicial to the appellant.
[15] Insofar as the Crown case and the case for the defence were summarised in the passage from the summing up we have set out, we are satisfied that the jury were given a clear and succinct statement of the cases on which findings were to be made.
[16] It is the next part of the Judge’s summing up that was subjected to greater criticism. After summarising the cases as described, the Judge made comments on parts of the evidence. He had earlier told the jury that since the appellant had acknowledged being at the scene:

... much of the Crown evidence will assume less importance than it may have had originally. I suggest that ultimately the evidence of only a handful of witnesses will be directly relevant to your deliberations.

[17] He had also, at the beginning of the summing up, in conventional terms said that:

During the course of this summing up I will say something about the facts, principally to highlight certain facts which may be relevant to your deliberations. If you interpret me as expressing a view about those facts, then you should ignore my view unless it happens to coincide with your own. So I must emphasise to you, my view on the facts, just like that of course, is not worth any particular weight. But if you think I am expressing a view, you can take it into account, so long as it happens to coincide with yours.

He repeated this direction at the end of the summing up.

[18] As this Court said in R v McRoberts CA86/99, judgment 15 June 1999:

The regular repetition which this direction receives in criminal trials may have caused it to lose its force, or even become stale, to defence lawyers. But to most jurors it is a fresh direction. Generally speaking, it is introduced at the outset of the trial and early in the summing up. When the Judge subsequently expresses an opinion on the facts and reminds the jury that it is a question for them, it is not a hollow rite. The jury is reminded of the firm direction which they were given at the outset that the facts are their responsibility.

Ms Williams then contended that the Judge’s expression of his views was stronger than that which is acceptable on the part of a trial judge. Again, we do not agree. It has been repeatedly held that provided the jury is clearly directed that they are the judges of fact and are free to disregard his or her views on the facts, and the comment is overall fairly presented, the trial judge is fully entitled to give his or her opinion on a question of fact to the jury. Moreover, the judge may express his or her opinion strongly. It is accepted that where the evidence clearly favours the prosecution the Judge does not have to strive for an artificial balance between the prosecution and the defence. See R v Daly (1989) 4 CRNZ 628, per Somers J at 629-30, Broadhurst v R [1964] AC 441; Chandler v DPP [1964] AC 763, 804; R v Honey [1973] 1 NZLR 725, per Turner P at 726-727 and 729; R v Ryan [1973] 2 NZLR 611; R v Blackley (1963) Crim LR 443; R v Fotu [1995] 3 NZLR 129, per Cooke P at 138; and R v Hall [1987] 1 NZLR, 616, per Bisson J at 622 and 625-626.

[19] There is a point, however, when comments from a Judge, even accompanied by frequent reminders that factual matters are for the jury, so press the jury towards a particular finding that the essential fairness and balance are lost; see R v Fotu [1995] 3 NZLR 129, 138.
[20] The first aspect of the evidence commented upon by the Judge was the widely differing descriptions of the man witnesses saw when driving past the appellant’s car while it was parked in Cuffs Road. One of the witnesses, a Mr Thomas, was sure the appellant was not the man he saw in the car. The Judge’s comments were as follows:

Mr Foreman, members of the jury, none of this should surprise you. It is certainly not fatal to the Crown’s case. All of these witnesses except Mr Muirson had relatively brief or passing views of the green vehicle and its occupants. They did not stop like Mr Muirson and confront the male occupant. It would be remarkable, I suggest to you, and lacking in any credibility, if any of them, including Mr Thomas, asserted that they were able to positively identify the man in the driver’s seat as Mr Hoko. As you will all know, it is often difficult to recall the details of fleeting events which do not appear significant when they occur.

Now, with justification, Mr Hart relies heavily on Mr Thomas’ evidence. Mr Thomas was the truck driver. He drove past in a truck into the orchard, and then back out home in a car. He was quite sure that the man in the driver’s side was not the person in the dock. He says everything is different – structural, facial, hair, skin colour, totally different. Mr Thomas got his times quite wrong, but Mr Hart says that you ignore that.

Mr Marchant suggests that you should be very careful about Mr Thomas’ evidence. He points out that Mr Thomas had only a fleeting glimpse of the vehicle but that, more importantly, he affirmatively described the man as being skinny or thin. He also refers to the steps taken by Mr Hoko to change his appearance after 3 December and the time that he has spent in solitary confinement as relevant factors.

Mr Foreman, members of the jury, you will have to decide what weight you give to Mr Thomas’ evidence. I suggest, though, that ultimately it may not assist you much. Its effect is to cancel out, or neutralise, both Mr Matthews and Mr Hoko as the occupant when, on the case for both the Crown and the defence, there could have been no other person. Mr Thomas’ description of the person as skinny or thin certainly does not fit Mr Matthews. You will recall that in cross-examination, and indeed in his address to you yesterday, Mr Hart was at pains to emphasise that Mr Matthews was a relatively big and strong man. He actually suggested to Mr Matthews – and Mr Matthews agreed – that Mr Hoko’s build, “is quite slim compared to your own”. However, the final decision on the value of Mr Thomas’ evidence rests with you. It may not be of great relevance because, at the end of the day, you have other evidence – including Mr Hoko – acknowledging that he was at Cuffs Road at around that time.

[21] Counsel’s written submission was that with these comments the Judge effectively directed the jury to set aside exculpatory evidence, and that he was unfair in stating that the differences were “certainly not fatal to the Crown case”.
[22] The defence case was that Mr Matthews was the man in the appellant’s car with the deceased and that the appellant had just come on to the scene when he was confronted by Mr Muirson. Plainly it was helpful to the defence to have varying descriptions and particularly the evidence of Mr Thomas, especially bearing in mind that the Crown bore the onus of excluding Mr Matthews.
[23] The comment that the disparate evidence was not fatal to the Crown case, though accurate, was pointed. It was balanced to a degree by the reference to Mr Hart relying heavily on the Thomas evidence “with justification”. Certain of the comments merely restate counsels’ contentions. However, the final reference to the acknowledgement by the appellant suggested that it rendered the other evidence largely irrelevant yet it did not really do so because the Thomas observations were made at an earlier time.
[24] The Judge dealt at length with part of the evidence of Mr Muirson – “perhaps the most important witness”. He reviewed the evidence of what the witness said he saw, first as he drove past (a male kneeling, straddling somebody) and again when he returned some two minutes later (a man lying on top of a young lady). The Judge contrasted this with the conflicting account given by the appellant in his evidence (giving mouth to mouth resuscitation from a kneeling position in the water then lying down to avoid being seen by Mr Muirson). By way of comment the Judge then said:

You may think there are two important aspects of this evidence. The first aspect is this. Mr Muirson was not challenged in cross-examination on evidence which he repeated continuously that Mr Hoko was on top of the girl on both occasions. It was never suggested to him that he had got that evidence wrong. In the absence of a challenge, you are entitled to accept an eye witness account of what someone saw, unless you are satisfied that the evidence of Mr Muirson is so far fetched as to defy belief. Mr Muirson’s evidence was that on the first occasion, Mr Hoko was straddling, kneeling or hunched over Ms Hargreaves, and that on the second occasion, less than two minutes later, he was in a different position lying on top of her. Also the fact that Mr Hart did not challenge this evidence, is you may think, very relevant to whether or not you can believe Mr Hoko’s directly conflicting account, given that he has lied before out of Court, that he lay down beside her. It is obvious to anybody that he could not have been giving Ms Hargreaves mouth to mouth resuscitation while straddling her or lying on top of her.

The second critical aspect is this: the purpose of giving mouth to mouth resuscitation is to assist a victim to life. Why, you may ask yourselves, would a person administering mouth to mouth resuscitation in the hope of reviving a victim, interrupt and then abandon that process to pull a gun on an innocent bystander, and render him incapable of assisting, and then flee the scene without checking whether the victim was dead or alive. You will have to decide for yourselves whether this conduct can be explained away as the actions of a man who panicked, as Mr Hoko says. He said he panicked because he was on parole and might be recalled. You will have to ask yourselves whether he would ever have been realistically at risk of being recalled on parole for trying to save the life of a dying girl. These will be issues for you when you come to assess his explanation.

If you accept Mr Muirson’s evidence, that Mr Hoko was actually lying on top of or straddling Ms Hargreaves on both occasions, you may draw inferences from it about what Mr Hoko was doing to Ms Hargreaves at the time. If you are not satisfied with his evidence, if you do not accept the Crown’s proposition that Mr Hoko was witnessed by Mr Muirson in the throes of killing Ms Hargreaves, you will have to look at the other evidence, at the other circumstances. The question will be whether, if that is your enquiry, Mr Matthews could possibly, as Mr Hoko alleges, have been responsible for Ms Hargreaves’ death. There is no other possibility. Mr Hoko has admitted that he was lying to his sister and his partner about another unidentified man, so you can exclude the third person theory.

[25] Counsel’s submissions first criticised the reference to the absence of cross-examination of Mr Muirson on his evidence that the man was on top of the girl and the suggested conclusion that in that position he could not have been giving mouth to mouth resuscitation. The second criticism was of the comments on the credibility of the appellant’s evidence and his explanation for abandoning his life saving efforts when Mr Muirson appeared.
[26] We were told that, the comments the subject of the second criticism were made to the jury in the course of Crown counsel’s address. They were not so attributed however. Framing directions in the form of questions incorporating suggested answers gives the impression of advocacy.
[27] It was submitted for the appellant at one point that the evidence of Mr Muirson was not inconsistent with the defence case that the appellant was assisting the deceased. That depends upon assessment of the evidence of the impressions and observations of Mr Muirson. We think the Judge should have told the jury to consider whether they accepted that Mr Muirson’s evidence established that the appellant was lying on top of or straddling the deceased, and whether in fact it was inconsistent with the appellant’s evidence. It was perhaps infelicitous also to have expressed in the way he did “ ... you may draw inferences from it about what Mr Hoko was doing to Ms Hargreaves at the time”. It would have been better to say that the evidence detracted from the credibility of the appellant’s account.
[28] The Judge next addressed the conflict between the appellant’s evidence on the one hand and that of Mr Matthews and witnesses supporting his account on the other. We set this out at length because the general tenor was relied upon:

You have seen and heard Mr Matthews and Mr Hoko give evidence. By their own admissions, neither was an angel. You have seen and heard from another critical witness, Ms Helen Ramsay, Mr Matthews’ former partner. Mr Hart has properly drawn your attention to evidence of Mr Matthews’ bad character in the form of numerous previous convictions for dishonesty offences. You are entitled to take that evidence into account when assessing whether or not Mr Matthews is a credible witness, just as you are entitled to take into account the fact that Mr Hoko lied to others outside of the Court, when you consider whether he was telling the truth.

Additionally, though, you have another important piece of evidence. You have Mr Hoko’s own statements to Ms Buttery, his girlfriend, later on 3rd December 2001 when they met at Ms Beloe’s place, that Mr Matthews left at around 3.30pm to get home, “to his missus and kids”. As I have noted, this explanation is entirely consistent with the evidence given on oath by Mr Matthews and Ms Ramsay. Mr Hoko did not suggest in evidence that he had spoken with Mr Matthews in the time between Ms Hargreaves’ death and his discussion with Ms Buttery later that evening, and concocted a story about the time and reason for Mr Matthews’ departure. There was no evidence that the two had any communication at all before Mr Hoko spoke to Ms Buttery. So, you may think there is some force in Mr Marchant’s submission that, perhaps, this part of his account – Mr Hoko’s account – to Ms Buttery, namely that Mr Matthews had left at around 3.30pm to get his wife and kids, has some force.

There is another piece of important evidence, emphasised by Mr Marchant. It is the evidence of shared DNA from Mr Hoko and Ms Hargreaves on the cigarette butt found in the vicinity of the Toyota. Mr Hart submitted to you that this did not confirm anything, but he did not say why. You may think it is evidence, as Mr Marchant suggested, that Mr Hoko and Ms Hargreaves shared a cigarette in his car in the time preceding her death. You may ask, what other explanation is there for it?

Mr Hart suggests to you that Mr Matthews fits the profile of Ms Hargreaves’ killer. He refers to his size, his appearance, his demeanour and, of course, his two hands. He says he is a violent man who commits violent acts. I suggest that you treat this submission with care. As I have said, neither Mr Matthews nor Mr Hoko is an angel. People in glass houses should be very careful before they throw stones.

You may think there is an element of opportunism in Mr Hoko’s attack on Mr Matthews. In cross-examination by Mr Marchant he explained that he had changed his previous account, which he admitted was untrue, when he – and I quote him – “found out that Shane Matthews is in jail for pulling out a gun, saying to someone that ‘do you want to die?’ and then turning round and running the guy over”. You have seen and heard Mr Hoko. You will have to work out whether Mr Marchant’s submission that he is a shrewd and manipulative man is correct. You will have to consider also whether he has taken advantage of his knowledge that Mr Matthews is now facing a serious criminal charge, knowing that he could use this evidence against him to support his defence. I might add there, of course, as Mr Hart was at pains to remind you in his opening address, that Mr Matthews is innocent of the charge which he is currently facing until he is found guilty. I also remind you that among the many convictions which Mr Matthews acknowledged, none was for violence against a woman.

So, while you are entitled to take account of Mr Matthews’ bad character when assessing whether he is telling the truth, I suggest that you approach this exercise, if it is necessary for you to determine the conflict, by making your own evaluation of his truthfulness as a witness giving evidence at this trial, just as you should do for Mr Hoko. Do not be unduly diverted.

Now because he gave evidence at an early stage of the trial, I shall briefly refer to you or repeat what Mr Matthews said when he was confronted with the allegation that he killed Ms Hargreaves. This is only fair to both the Crown and the defence.

[29] The Judge then read two sections from his notes of evidence which together take up more than two pages of the transcript of the summing up. He then continued:

Whatever you may think of Mr Matthews, Mr Hart did not attack Ms Ramsay’s character. You will recall her. You may think that she was a direct and forthright young woman. You may ask what motive she would have to protect Mr Matthews by lying at trial, given that they are no longer in a relationship. She was quite adamant that Mr Matthews returned home at about 3.25pm on 3rd December. She was able to identify the time by reference to a television programme and her son coming home. She said that Mr Matthews was, “Just the same as he always was”. In answer to Mr Hart, she said, “There’s no possible way that he could have returned after 3.30.

Now, yesterday Mr Hart, quite rightly, drew your attention to the fact that in answer to one of his questions, Ms Ramsay said that Mr Matthews returned that “night”. He submits that it was more than a slip of the tongue and that she was inadvertently admitting the truth. Members of the jury, you must take into account that Ms Ramsay was giving evidence in a hostile environment under intense cross-examination. Mr Hart had earlier been suggesting to her that Mr Matthews returned home well after 6.30pm. She was adamant that he was wrong. She was adamant that he was wrong, both before and after he pointed out that she used the word “night”. She was answering questions in the context of suggestions that it was night time. You may think it would be easy for any witness to make an innocent slip in this context. You must weigh up what she said in answer to that question, along with all of the other evidence that she gave, when deciding whether or not she was an honest witness.

Well, there you are. On the crucial issue, that is the evidence to which I am drawing your attention. There is a great deal of other evidence referred to by both counsel in their addresses yesterday. I am not going to repeat it. I repeat, though, that Mr Hoko is not under any burden to prove that Mr Matthews killed Ms Hargreaves. If his allegation that Mr Matthews was responsible leaves you in a state of reasonable doubt, then you must acquit him at this stage and find he did not kill Ms Hargreaves.

[30] It was submitted that in these passages the Judge repeatedly endorsed the evidence of Mr Matthews and drew emphasis away from his bad character.
[31] It is to be noted also that in the manner in which the review of this evidence was expressed, the points made by Crown counsel, Mr Marchant, rather than being recalled for the jury, were, in effect, endorsed by the Judge.
[32] The reference to the shared cigarette in the terms employed is puzzling. There was no dispute, on any version of events, that the appellant and the deceased travelled to Cuffs Road in the same car. We can see no reason to take issue with the view Mr Hart had expressed, that it did not confirm anything. But the defence position on this aspect was put to the jury by the Judge in an addendum to the summing up so nothing turns on it.
[33] It must be said that taken overall these comments on the evidence which we have set out at length impress as undermining of the appellant’s account and of points made by his counsel. They invite rejection of the defence case. The issue remains, however, whether, as a whole, the directions were such as to give rise to a miscarriage of justice.
[34] In New Zealand persons charged with serious criminal offending are tried by jury. That is their right (s24(c) New Zealand Bill of Right Act). As all juries are instructed, matters of fact are solely their province. Accused persons are entitled to expect findings of fact to be left to the jury. That is essential to a fair trial. They are entitled also to be tried before an independent and impartial court (s25(a)). The jury is a vital component of the court and must not have that independence eroded by improper influences, obvious or subtle.
[35] As we have already said, a trial judge is entitled to express views on the evidence and assist the jury, so long as the jury is given clearly to understand that they are entitled to disregard those views. There is no obligation to strive artificially for balance in cases where the case for the Crown is strong and that of the defence strains credibility. What is of over-riding importance is that the jury clearly understand the critical issues and their role in determining whether or not the Crown has proved its case, and then are left to make their own findings.
[36] In the end the summing up must be viewed overall. The judicial suggestions are strong and their effect cumulative. The defence case, although implausible, was entitled to evaluation by the jury without undue denigration by the Judge. On the other hand the Crown case was an overwhelming one and to some degree it may not be surprising that this was reflected in the summary of the respective cases for the Crown and defence. The substance of most of the criticised statements of the Judge might be said to reflect the evidence, and would have been emphasised in Crown counsel’s address in any event. The level of judicial endorsement was inappropriate and strong but we are not convinced it went so far as to amount to a direction to the jury that the only proper verdict they could return was one of guilty. And the jury were clearly instructed that they were to assess the evidence for themselves. The summing up comes close to the point at which its lack of balance would be unacceptable but we do not consider that it crosses that line on its own. The next question is whether it does so in combination with the other grounds of appeal.
[37] The remaining grounds of appeal can be dealt with briefly.

Direction in identification evidence

[38] As already mentioned, there was objection to the Judge’s comment in the summing up on the differing descriptions given by witnesses of the man they saw in the appellant’s car on Cuffs Road. It was said that in referring to the difficulties of identification in circumstances of limited opportunity, when they tended to be exculpatory, the Judge was, in effect, directing on identification evidence in a situation which was inappropriate as in R v Tristrum [1999] NZCA 249; (1999) 17 CRNZ 147.
[39] No witness claimed to identify the man in the car as either the appellant or Mr Matthews. We see no objection to a direction that differences in description are understandable. That is quite distinguishable from the circumstances that arose in Tristrum. We find nothing in this point beyond what already has been said under the first ground of appeal.

Direction on pathology evidence

[40] The third ground of appeal relates to the expert pathology evidence. The submission is that the Judge misdirected the jury on the evidence of injuries to the deceased and the cause of death and, as a result, detracted from the defence inference that death probably occurred while the deceased was in the car.
[41] There was evidence of damage to brain tissue indicating an episode of hypoxia (a compromised airway causing loss of oxygen to the brain) some 20 to 90 minutes before death. There was bruising to the face and head consistent with blunt force trauma and physical injuries from which death by manual strangulation was indicated. The expert witnesses were not able to say whether the deceased would have regained consciousness between the episode of hypoxia and death.
[42] In his summing up the Judge directed the jury in these terms:

You heard extensive evidence from Dr Simon Staples, a forensic pathologist and, to a lesser extent, from Dr Beth Synek, a neuro-pathologist. Both, you may think are extremely highly qualified. You do not now need to concern yourself with the details of their evidence. In Dr Staples’ opinion, which the defence did not challenge in cross-examination, Ms Hargreaves died of strangulation. He repeated that on three different occasions in his evidence. He explained to you the three alternative ways in which strangulation would have occurred. Dr Staples also gave evidence, supported by Ms Synek, of an earlier episode, about 30 to 90 minutes before Ms Hargreaves’ death. For some reason in that first episode, the flow of blood to her brain was blocked. This is known as hypoxia.

Yesterday, Mr Hart submitted that the first episode probably rendered Ms Hargreaves unconscious and that she died in the car. I must tell you that his submission is not supported by the pathologist’s evidence. Dr Staples was adamant that strangulation was the cause of Ms Hargreaves’ death, and that the earlier episode only set in motion the events leading to her strangulation.

[43] Counsel submitted that the Judge was wrong to tell the jury not to concern themselves with details of the pathologists’ evidence and was wrong to say that the deceased could not have died in the car. It was said that the evidence did not establish that there was a separate episode preceding strangulation.
[44] Mr Marchant argued that in saying that the pathology evidence did not support the submission that the deceased died in the car the Judge was correct – the evidence did not prove she died in the car. That is one interpretation of what the Judge said. But it seems to us more likely that the jury would have understood the Judge to be saying that the evidence of Dr Staples was inconsistent with death in the car. In fact, as we understand the evidence, by itself the pathology evidence was quite inconclusive on where death might have occurred – or indeed whether there were two incidents, one causing the hypoxia and the other strangulation.
[45] As we understand it, it was the defence case that the act or acts causing death occurred before the appellant returned to the scene, and that when Mr Muirson saw the appellant with the deceased on the bank she was already dead (or dying). It was said that the Judge’s erroneous directions in this respect were prejudicial to the defence case.
[46] There is some force in the complaint that the Judge over-simplified the expert evidence and its possible significance, but we are not persuaded that this separately gave rise to any miscarriage of justice. As the trial developed the issue narrowed to whether the deceased was killed by the appellant or Mr Matthews. The Crown case was that Mr Matthews was never in Cuffs Road. If death occurred in the car it must have been caused by the person proved to be in the car with the deceased. Who that was could not be proved by, or inferred from, the pathology evidence. That depended upon other evidence. To reach the verdict they did the jury must have excluded the possibility that Mr Matthews had been at the scene and had been responsible for the killing of the deceased, as Mr Hoko alleged. As the only plausible alternative to Mr Hoko’s version was that Mr Hoko was the person who had been in the car with the deceased and was responsible for her killing, it was not critical to the jury’s verdict whether the deceased was killed in the car earlier or was being fatally attacked on the bank when Mr Muirson arrived.
[47] Mr Faleauto, attempting to assist with a submission in reply, submitted that if the jury had been fairly directed to consider the possibility that, on the pathology evidence, death occurred in the car, that would have tended to undermine Mr Muirson’s credibility and thereby enhance the credibility of the appellant. We do not accept that. There was no real issue of credibility in respect of Mr Muirson. He gave evidence of what he saw. That was well short of evidence of an eye-witness to murder. Once it was acknowledged that the appellant was on the bank with the deceased when he made his observations, his credibility ceased to be an issue. Inferences that might have been drawn from his evidence were matters for the jury and were unrelated to his credibility.
[48] There was evidence that Mr Matthews had returned to Henderson and was at home well before the killing. The only evidence of his presence in Cuffs Road was from the appellant whose account was implausible. Even if it had been accepted that death was caused by a single episode in the car (and that would leave unexplained the deceased’s footprints outside the car and one of her shoes on the ground near the front of the car), it would not have availed the appellant once the jury rejected the claim that Mr Matthews was there.

The lies direction

[49] The final ground of appeal against conviction related to comments made in the course of the summing up concerning lies.
[50] The appellant, in his evidence, said that he had given false accounts to persons he spoke to after the event. He said the accounts were false. The Crown relied on some statements – in particular that the appellant told one witness that Mr Matthews had returned home earlier. The defence sought to rely on an account he gave to his stepbrother in which he mentioned Mr Matthews being present at the scene – although that account did not explain what happened to the girl. Plainly the varying accounts given to witnesses, and the appellant’s evidence, could not all be true.
[51] The Judge gave a lies direction to the jury in conventional terms. As we understand this ground, the objection is that although the Judge told the jury that lies by the appellant should not be construed as meaning he was guilty of the offence and were relevant only in their assessment of his credibility in the evidence he gave, the frequent further references through the summing up to lies told by the appellant gave the lies greater emphasis, to the point that the jury might have taken them as bolstering the Crown case. Certainly there were repeated and unnecessary references to lies having been told “consistently” by the appellant.
[52] We do not believe the jury would have disregarded the clear direction they were given. The repeated references to lies in other parts of the summing up in context should not have had the effect suggested. We accept that in part they were related to other evidence. The attack by the defence on the character of Mr Matthews seems to have given rise to some of the references which, in that regard, were less objectionable. The actual direction on lies was not inappropriate. However, the repeated reference to lies contributed to the overall tenor of the summing up.
[53] We have considered carefully and at length whether the summing up should be accepted as a forthright jury direction with strong, but not undue comment on aspects of the evidence and the defence case. The right to a fair trial is fundamental. Any risk that jurors may have been pressured in a manner adverse to an accused is of concern. Further, and of great importance, is that the trial process must be seen to be fair.
[54] In the end we have concluded that the Judge’s comments were not such as to improperly influence the jury and give rise to a miscarriage of justice. We reach that view in part because we have not been convinced that those parts of the evidence said to have been inaccurately commented on to the jury were material to the verdict. Comment, where accurate, though undermining of the defence case, was within the Judge’s province in a case in which there was a great deal of Crown evidence and only that of the accused for the defence. Any summing up would have reflected the disproportionate strengths. This case is not in the same category as Fotu.
[55] The appeal against conviction, therefore, is dismissed.

The sentence appeal

[56] The appeal against sentence was directed first to the concurrent sentence of imprisonment for seven years for the offence of “aggravated wounding” – presenting a firearm with intent to avoid detection or facilitate flight on the commission of a crime. Separately, that is of little significance with the conviction for murder being sustained. The other part of the appeal was directed to the minimum sentence for murder of imprisonment for 17 years. The two grounds are related, however, because of the way in which the Judge arrived at the minimum sentence he imposed.
[57] The applicable statutory provision is 103 Sentencing Act 2000. That is in broadly similar terms to s86 which was considered by this Court in R v Brown [2002] 3 NZLR 670. A two step approach is required. It is first necessary for the sentencing Judge to be satisfied that the circumstances of the offence are “sufficiently serious” to justify a minimum non-parole period of more than 10 years which otherwise applies when life imprisonment is imposed. The circumstances “may” be regarded sufficiently serious if the Court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind (s103(5)).
[58] The second step involves fixing the minimum term if the Judge determines that one should be imposed. That term must be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender.
[59] There is also to be taken into account the provisions of s104 of the Act requiring a minimum sentence of 17 years for murder in prescribed “exceptional circumstances”. We do not consider the circumstances of the present offending reach exceptional circumstances of the degree of seriousness of those specified in s104.
[60] Addressing the “sufficiently serious” threshold the Judge identified three aspects of the offending that set it apart. They were “its sheer brutality – its extreme violence and callousness”, the vulnerability of a young, trusting and naïve victim and the impact on those victims close to the deceased He was satisfied a minimum sentence of more than 10 years was justified.
[61] In fixing the term to be imposed, the Judge took into account the offending history of the appellant which included a conviction for kidnapping in 1999 for which he was on parole at the time of the present offending. He referred to the presentence report and emphasised lack of remorse. He said:

What are significant, though, are two particular and interrelated factors, Mr Hoko. First, you show no remorse, no insight, no contrition, and no recognition of the brutality of your behaviour or the lifetime burden you have inflicted on others. Second, as Mr Dickey submits, your conduct from the moment of Mr Muirson’s arrival to completion of this trial shows absolute self-preoccupation. You were concerned only with the means available to conceal your participation in this crime. You were prepared to go to any lengths to achieve that objective, including blaming others and putting them in jeopardy for this offence.

[62] The Judge referred to the decision in R v Namana [2001] 2 NZLR 448 in which a minimum sentence of 18 years for the murder of a policeman was reduced to 16 years because of a plea of guilty which the present appellant could not claim credit for. After allowing for the special factor in Namana of the victim being a law enforcement officer, the Judge said the factors in the case before him justified a minimum sentence “of at least 15 years”.
[63] The Judge went on in these terms:

However, Mr Hoko, there is an additional factor present in your case but not present in others. Independently you committed a very serious crime against Mr Muirson and his sons. They were attempting to come to Jenni’s assistance. I am satisfied from the evidence, both of Mr Muirson and the pathologists, that she was probably dead by then. Nevertheless, your use of a firearm was designed to prevent them from helping a dying girl.

... I observed Mr Muirson giving evidence at trial. The impact of these events remains very obvious. In my judgment, Mr Hoko, the public would recoil at the thought that you could effectively get away with that crime because the sentence for it would be swallowed or absorbed by, and run concurrently with, the murder sentence.

[64] The Judge fixed the minimum term at 17 years.
[65] We have no difficulty with associated offending being taken into account as part of the circumstances of the case. That follows from the terms of s9(1)(f) of the Sentencing Act. In this case, however, in arriving at the term of “at least 15 years” the Judge took into account the appellant’s conduct on the arrival of Mr Muirson. This suggests an element of double counting in imposing what has the appearance of a cumulative two year term of minimum sentence for the crime against Mr Muirson.
[66] The minimum term is imposed for the offence of murder. The associated offending constituted part of the circumstances of the case to be taken into account in fixing the length of minimum term. That was done when the period of 15 years was fixed. That minimum term compares with that imposed in R v Abraham, High Court, Wellington T1942/02, judgment 4 April 2003 when a minimum period of 13 years was fixed for the murder of a defenceless woman walking with her dog along the bank of the Hutt River.
[67] Accordingly, we conclude that the minimum sentence in this case should have been 15 years. The appeal against sentence is allowed and for the minimum sentence of 17 years there is substituted a minimum sentence of 15 years imprisonment.

Solicitors:
Crown Solicitor, Auckland