R v FATEH SINGH AND ADAB SINGH [2003] NZCA 289 (10 December 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 53/03

CA 67/03

THE QUEEN

v

FATEH SINGH AND ADAB SINGH

Hearing: 28 August 2003

Coram: Anderson J

William Young J

Heath J

Appearances: M I Koya and M A Karam for Appellants

M R Heron for Crown

Judgment: 10 December 2003

JUDGMENT OF THE COURT DELIVERED BY HEATH J

Introduction

[1] After a lengthy trial in the District Court at Tauranga, Fateh Singh (Fateh) and Adab Singh (Adab) were each convicted on one charge of causing grievous bodily harm with intent to cause grievous bodily harm.Each appeals against conviction.There is no appeal against sentence.

[2] Fateh and Adab were tried together with two other men, both called Satnam Singh.Those two men were known, respectively, as Sangha and Sam.All four men were charged with kidnapping (x1), assault with a weapon (x4), intentionally causing grievous bodily harm (x1) and wilful damage (x1).Fateh was also charged with attempting to pervert the course of justice.In his summing up, the Judge described the charge of intentionally causing grievous bodily harm as “central in the trial”.

[3] Fateh, Adab and Sam were each convicted on the charge of intentionally causing grievous bodily harm.Sam was also convicted on one charge of intentional damage and one charge of assault with a weapon. On all remaining charges the accused were either discharged under s347 of the Crimes Act 1961 (the Act) or found not guilty by the jury.

[4] The charges arose out of an incident at a kiwifruit orchard at Paengaroa (near Te Puke) on 24 January 2002.In general terms, there was a fracas involving the four Singhs (on one side) and four adult occupants of a house situated on the kiwifruit orchard (on the other).

[5] In the course of the fracas, a man named Niranjan Dhaliwal was assaulted, probably through the use of “loppers” and a pick handle.He received a severe injury to his head and brain as well as a fractured arm.He was in hospital for some time and underwent a number of operations.The assault on Mr Dhaliwal was the basis of the conviction against which both Fateh and Adab now appeal.Sam has not appealed against conviction or sentence on that charge.

[6] Fateh was sentenced to 8 years imprisonment and Adab to 7 years 6 months imprisonment.Sam was sentenced to serve a term of imprisonment of 7 years on the grievous bodily harm charge.

Grounds of appeal

[7] Originally, Fateh and Adab appealed against conviction on the grounds that the verdicts returned by the jury were (a) inconsistent or unreasonable and (b) contrary to the weight of evidence.Both grounds of appeal have been abandoned.

[8] Leave was sought to add two further grounds of appeal.Those two grounds allege (a) impermissible cross-examination by counsel for the Crown at trial and (b) an erroneous or inadequate direction by the trial Judge to the jury on the law relating to parties.

[9] We are satisfied that the two additional points justify the grant of leave to amend the points on appeal.We granted leave for those additional two grounds to be argued.We deal with each issue in turn.

Use of co accused’s out of Court statement for cross-examination

[10] In R v McKenzie (CA 7/03, 12 June 2003), this Court reviewed the principles applicable to the use of written statements by co-accused in cross examining an accused.McKenzie was decided six months after the appellants’ trial in the District Court.

[11] Two categories of cross-examination on statements of co-accused were identified.The first involves cross-examination in the context of the trial of a single accused on a document which is not in evidence: see McKenzie at paragraphs [19] and [20].The second concerns trials involving multiple accused: see McKenzie at paragraphs [21]-[30].This appeal, involving the contemporaneous trial of four accused, falls into the second category.

[12] At trial, Fateh and Adab elected to give evidence.Neither Sangha nor Sam gave evidence.

[13] At paragraphs [34-[35] of McKenzie, Panckhurst J, delivering the judgment of the Court, said at paragraphs [34]-[35]:

[34]As is probably apparent from the above brief review of the cases the proper limits upon cross-examination of accused can be a difficult area in practice.It is important therefore that the approach adopted is workable both from the perspective of counsel and trial Judges.In our view the approach indicated in Cross [(1990) 91 Cr App R 115], Rice [[1963] 1 QB 857], Windass [(1988) 89 Cr App R 258] and Pui [(CA 153/95, 30 May 1996)] is an appropriate one.In each the direct cross-examinationof an accused upon a statement other than his own was found to be irregular.On the other hand cross-examination upon the substance of the statement, without reference to source, was permissible.This, we think, represents an appropriate dividing line as to what should be allowed.

[35]It enables a prosecutor to fully explore any relevant issue of fact, including issues which may already be before the jury through a co-accused's statement or other documents such as a diary.But a balance is struck to the extent that the accused is protected against the need to explain or even comment upon remarks which are not of his making.And if counsel may not cross-examine with direct reference to another person's document the Judge's direction as to who the document is evidence against is less likely to be compromised.

[14] Cross-examination of an accused on out of Court statements made by a co-accused could be undertaken for two purposes, namely,

a) First, to highlight to the jury statements made out of Court by co-accused who, at that time, had made no election to give evidence.Potentially, this gives rise to prejudice to any co-accused who elected not to give evidence.

b) Second, to impeach the testimony of an accused under cross-examination through the use of out of Court statements made by a co-accused.Potentially, this is prejudicial to an accused because there is no opportunity to test the veracity of what the co-accused told the Police.

[15] Generally, cross-examination which suggests the contents of a document will be regarded as improper if the document is itself inadmissible, for example because it is hearsay: see Cross on Evidence (New Zealand looseleaf edition, Lexis Nexis NZ) at paragraph 9.62 and the authorities collected in footnote 4.

[16] One of the authorities to which the learned authors of Cross on Evidence refer is R v G (CA 275/01, 13 December 2001).That case demonstrates two underlying rationales for not admitting evidence of that type: namely,

a) that it unfairly suggests to a jury that the accused is not telling the truth when the statement being put has not been, or will not be, tested in evidence and

b) it operates unfairly against a co-accused, because counsel is using cross-examination of a person not responsible for its preparation as an opportunity to convey its contents to the jury.

See R v G, at paragraphs [24] and [25] and M H McHugh QC, Cross-examination on Documents [1986] NZLJ 309 at 310-311.

[17] In this case, statements made by each of the accused to the Police were produced in evidence by the Crown.The statements took the form of videotaped interviews which the jury saw.A transcript of each video was also produced as an exhibit.

[18] Before the jury watched the videotapes and the transcripts were produced, the Judge gave directions to the jury about the use which could be made of each. In the course of those directions the Judge emphasised that what was said by the accused was only evidence against him and not evidence against any of the other accused.The Judge told the jury that they “may not consider it when you consider the cases against any of the other accused”.The Judge reinforced that direction by explaining why that was so.It was because co-accused did not have the opportunity to comment on what was said.Those directions were repeated in the Judge’s summing up.

[19] After the conclusion of the Crown case, the case for Fateh was presented first.The case for Adab followed.At the commencement of cross-examination of Fateh by counsel for the Crown, counsel who appeared for Fateh at trial objected to the way in which counsel for the Crown sought to cross-examine Fateh on statements of co-accused.

[20] The trial Judge ruled, after hearing from all counsel, that Crown counsel was entitled to put anything concerning the trial to the accused and that there was no prohibition on the Crown exploring matters relating to other accused.He also ruled that while counsel for the Crown could put material from statements by co-accused to an accused, counsel was not entitled to “cavil with an answer and cannot convert statements by other accused into evidence for the purposes of the trial simply by putting a question”.The Judge ruled, consistently with what this Court said in McKenzie, that:

[Crown counsel] can only really put the facts contained in the statement for comment rather than the statement itself which is the process which he has started doing.[see paragraph [3] of the Judge’s ruling of 5 December 2002]

[21] Mr Koya submitted that the cross-examination went beyond permissible boundaries both before and after the ruling of the trial Judge.Mr Koya submitted that counsel for the Crown had not only put facts contained in a statement but had identified the maker of the statement and quoted directly from it.He submitted that the object of the questioning was to confront both Fateh and Adab with inconsistent statements in an endeavour to persuade the jury that they were lying.Mr Koya submitted that the irregularities gave rise to a miscarriage of justice.

[22] Mr Heron acknowledged that, prior to the Judge’s ruling, counsel for the Crown had exceeded the boundaries of cross-examination on which the Judge had ruled.But, with the possible exception of two questions, Mr Heron submitted that the post-ruling cross-examination of Fateh was conducted consistently with the Judge’s ruling.He also submitted that any breach of the ruling in the context of cross-examination of Adab was “insignificant and inconsequential” as none of the matters put were accepted.For that reason, Mr Heron submitted that no miscarriage of justice arose in any event.

[23] Mr Heron also reminded us that the objection to the use of out of Court statements in cross-examination of a co-accused does not apply if what is said in the statement is adopted in evidence by an accused.Mr Heron submitted that Adab gave evidence in which he adopted his out of Court statement.

[24] Mr Heron also noted that none of the statements were, in fact, accepted by the accused to whom they were put in cross-examination.In those circumstances, Mr Heron submitted that the cross-examination could not have produced any unfairness, particularly in light of the directions given by the trial Judge as to the use of such statements.

[25] We have considered the relevant extracts of the cross-examination of both Fateh and Adab.It is clear from the transcript that propositions put to both Fateh and Adab (but more significantly, Fateh) were designed to demonstrate that the evidence given by each of them was inconsistent with out of Court statements made by co-accused who had not, at that time, elected whether to give evidence.

[26] We are satisfied that the Judge correctly ruled that cross-examination on statements of co-accused ought to be limited to matters of substance.In so ruling, the Judge correctly applied the principles which were distilled in McKenzie and re-stated in paragraph [34] of that judgment.As the McKenzie decision post-dated the trial, the Judge did not have the benefit of it when making his ruling.

[27] Nevertheless much of the cross-examination of Fateh which followed was in breach of the ruling and, in our view, ought to be characterised as impermissible.Further, there are at least five questions put to Adab which breach the ruling.In those questions the source of the information is disclosed.For that reason we also characterise that cross-examination of Adab as impermissible.

[28] The number of questions put to Fateh arising out of Adab’s out of Court statements were few.Thus, we are uninfluenced by Mr Heron’s submission that Adab’s adoption of those statements in evidence makes a difference.

[29] Neither are we persuaded by Mr Heron’s submission that none of the statements was accepted.The point is not whether they accepted what was put to them but that the Crown sought to impugn credit by reference to a statement which was not admissible against the accused.

[30] We have considered whether the directions given by the trial Judge to the jury about the use of statements made by an accused out of Court ameliorates any prejudice which would otherwise flow from the impermissible cross-examination.We have already referred to directions given at the time the videotapes were played and the transcripts produced: see paragraph [18] above.In summing up, the Judge reinforced those directions, saying:

[8] Now this is a case where all of the accused have made statements out of Court.Those were the statements, partly oral but mainly videoed, to the Police that you heard and have seen.As I said to you when those statements were being put in evidence those statements are evidence only in connection with the person who made them.They are not evidence for or against other accused.They were not there, they had no opportunity to comment and they are still evidence for or against only the person who made them, even if another accused is cross-examined about them during the trial.Those statements of the accused recorded on videotape or in writing are not sworn evidence in the case but they are nevertheless part of the material for you to consider in your overall assessments of the cases against them.The truthfulness, the accuracy, the weight of those statements are for you to determine.You may accept the matters in those statements entirely or in part only, you may reject them.Again those are factual matters which are for you to decide.I repeat that the statement of one of the accused to the Police out of Court is evidence only for or against that person who made it, not for or against any of the others.

[9] It will be obvious to you that ... Sam ... made a statement which was pretty favourable to himself but not very favourable to Fateh Singh and Adab Singh.It is not evidence against them but when you think about that statement do it carefully.Bear in mind the possibility that he may have been more concerned with protecting his own position by shifting the blame to somebody else than by telling the simple truth and you may have similar concerns about statements of others.

[10] Now in this case you saw and heard two of the accused, Fateh Singh and Adab Singh, give evidence and be cross-examined.They did not have to do that and the fact that they did does not alter the onus of proof in any way.It stays on the Crown throughout the trial but what an accused person says while giving evidence in Court can be used as evidence for or against any of the accused.That is in contrast with the statement or interview out of Court which cannot be used against a co-accused.What is said by somebody in Court is evidence able to be considered for or against any of the accused because they have all heard it, they have all had the chance to test it here in Court.The statements of the others that are put to the accused who gave evidence are still only evidence for or against the others who made them though.

[31] A consideration whether the method of cross-examination led to injustice requires the following matters to be brought into account:

a) First, the directions given by the trial Judge to the jury made it clear what use could be made of the co-accused’s statements in cross-examination and ought to have dispelled any fear that the jury might have drawn adverse inferences on credibility from that cross-examination.

b) Second, the lack of objection from experienced counsel for the accused suggests that there may have been a strategic reason for that omission.

c) Third, we note that neither counsel for Fateh nor Adab suggested to the Judge, when he was requested to rule on the extent of cross-examination on statements of co-accused, that the trial ought to be aborted.Although not a decisive factor on its own, what must have been a considered decision by counsel suggests that, in context, the matters seemed to have less significance than the Appellants now apprehend.

[32] Having regard to these matters we are of the view that no miscarriage of justice was, in fact, occasioned.

Directions to jury on “parties”

[33] There were many conflicts in the evidence about the way in which the assault on Mr Dhaliwal occurred.What is clear, from our review of the evidence, is that both Fateh and Adab were armed with orchard implements and were involved in the assault on Mr Dhaliwal.

[34] The Judge endeavoured to pull the threads of evidence together in his sentencing remarks.Acknowledging that the view formed by the Judge may not necessarily equate to the view formed by the jury, we summarise the essence of the Judge’s view below, by way of introduction:

a) All four accused went to the house on the kiwifruit orchard in Paengaroa, arriving shortly after 11pm on 24 January 2002.A number of telephone calls had been made.Through those telephone calls and the unwilling involvement of another person the four accused gathered after ensuring that Mr Dhaliwal would be present.

b) There was evidence of a deliberate intention to orchestrate a confrontation or fight.The four accused went to the house with various weapons, including a pick handle, garden hose and pruning loppers.Fateh was involved in instructing others what to do.He was the leader of the group.

c) Mr Dhaliwal was attacked by Fateh, assisted by Adab.Mr Dhaliwal and others at the house armed themselves with sticks or bars to defend themselves.The fracas commenced in the area of the front door to the house and moved to an area between the garage and the grass where Fateh and Adab continued to assault Mr Dhaliwal with weapons.

d) Primary responsibility lay with Fateh as orchestrator and instigator of what occurred and as one of the two persons identified in the evidence as being involved directly in the assault on Mr Dhaliwal; the other being Adab.

e) Sam was involved in the assault on Dhaliwal by way of background support, by preventing assistance from others at the house.

f) Mr Dhaliwal was in critical care for three weeks.He had a series of operations.He has lost virtually all sight from his right eye and his left arm is virtually useless.

In our view, there is ample evidence to support the Judge’s view of the facts.

[35] Both Fateh and Adab were charged under s188(1) of the Act.Section 188(1) requires intent to cause grievous bodily harm to be proved as an element of the offence.If intent to cause grievous bodily harm is proved the offender is liable to imprisonment for a term not exceeding 14 years.

[36] Section 66 of the Act sets out the circumstances in which a person will be guilty of a criminal offence.Aside from participation as a principal offender (s66(1)(a)), there are two bases upon which a person will be culpable for a criminal offence committed by another:

a) First, where a person aids, abets, incites, counsels or procures any person to commit an offence (s66(1)(b)-(d) of the Act);

b) Second, where two or more persons form a common intention to prosecute an unlawful purpose and to assist each other in that purpose (s66(2) of the Act).

[37] The Crown relied on s66(1)(b) and (c) of the Act: namely that the relevant parties were guilty of criminal conduct on the grounds that they aided or abetted (helped or encouraged) commission of the offence.

[38] The Crown did not rely on s66(2) at trial.For that reason, no directions, relating to that provision, were given by the Judge to the jury.Rather, the Judge’s summing up dealt with the question of parties by reference to s66(1) of the Act.Subsequent answers given by the Judge to a question from the jury were also based on s66(1).

[39] The requisite intent of a person who is a party to an offence through the operation of s66(1)(b)-(d) of the Act is well settled.The intent has two constituent parts: (a) knowledge of the essential matters that constitute the offence committed by the principal and (b) an intention or purpose to help or encourage the principal to do the acts that constitute the offence.

[40] As to the first limb see Cooper v Ministry of Transport [1991] 2 NZLR 693 at 699 and R v Kimura (1992) 9 CRNZ 115 (CA) at 117.In Cooper emphasis was placed on the need for actual knowledge of “essential matters constituting the offence” before a person can be said to aid or abet its commission.In Kimura this Court said:

..., before the appellant can be convicted as a party under s 66(1) it must be shown that he was aware of the essential matters constituting the offence, ie that he contemplated a burglary by the principal party and that he would have a knife with him while inside the premises. We therefore conclude that the Judge erred in not putting the matter to the jury in this way. Different considerations might have applied if the case against the appellant had been put under s 66(2) but this was not so, and there was no direction on that section. (at 117 per Casey J, delivering the judgment of the Court)

[41] As to the second limb, the essence of aiding and abetting is intentional help or encouragement.There is no requirement that the secondary party desire the principal to commit the offence.It is the assistance that must be intended, not the ultimate crime:see R v Lewis [1975] 1 NZLR 222 (CA) at 228 and R v Witika (1991) 7 CRNZ 621 (CA) at 622.

[42] Directions were given to the jury on the law relating to parties in various parts of the summing up.At paragraphs [15] and [16] the Judge said:

[15] I want to talk about parties.In relation to counts 1, 3 and 7 you will have to consider the possible involvement of the accused as parties.The law says that a person who is a party to a crime is equally as guilty as the person who actually commits the offence.A person can become a party to the crime in a number of possible ways and in this trial we have to deal with three of them potentially.A person will become a party if he does or omits an act for the purpose of aiding somebody to commit a crime and you aid somebody to commit a crime if you help or assist them with what they are doing.So that is the first possibility.Secondly, a person will become a party if he abets the person committing the crime.Now that is a legal term but you abet if you actively encourage somebody in what they are doing.Thirdly, you can become a party if you incite or counsel or procure somebody to commit a crime and inciting, counselling and procuring involved urging or instigation or encouraging or taking steps to see that something occurs.

[16] Each of those options involves the taking of some positive or active step by words or actions or both.I have to emphasise that some degree of active involvement of the kind thathave described is necessary.Mere passive presence as a bystander or an onlooker is not enough.While a person charged as a party need not know the precise details of how the crime is carried out it is necessary for him to know at least the essential facts of what is going to happen and a person charged as a party must also intend that what he does or says should assist or encourage the committing of the crime.You are not a party if you accidentally or inadvertently help somebody else to commit a crime. Now if you are satisfied that more than one of the accused was involved in one of the counts but it is not possible to say which of the offenders was the principal and which was the party, it is sufficient, it is enough, if the Crown has satisfied you that each of them must have been either the principal, the person who actually did it, or a party.If you are satisfied of that, even though you cannot be sure which was which, then they will both or all be guilty of the crime, although you have to be satisfied beyond reasonable doubt that one of them did the physical act with the necessary intention even if you do not know who that was.So that is the bit about parties.(our emphasis)

[43] Later, in summarising the Crown case on count 3, the Judge added:

[72] What about count 3?This is the charge involving grievous bodily harm to Dhaliwal.The Crown says this.The Crown says that you should have no doubt that Dhaliwal suffered grievous bodily harm and you might think they are right about that.The Crown says that whoever struck him must have intended really serious harm but the Crown says on the evidence you mightn’t be sure of who it was.On the evidence a number of people hit Dhaliwal, you don’t need to know which blow or which accused particularly was responsible for that.The Crown says that each of them are guilty if they were the one that hit or provided assistance by joining in the assault or by assaulting someone who came to help or by agreeing to be armed and hide and attack when the occupants came out of the house, which is what Rampi said happened.Again the main evidence is that of Rampi.(our emphasis)

[73] The Crown says that at KFC you will remember Rampi said that all of the accused talked about fighting with Dhaliwal so there was an act of involvement from that point and that when they got back according to Rampi’s evidence, all of them got out.They were armed, Fateh Singh told the others to hide while he and Rampi went to the door and instructed the others to attack when they came to the door and they agreed.The Crown says at that point you can be satisfied they are all responsible for what followed because they encouraged each other, they agreed, they armed themselves.The Crown says that Rampi says Fateh Singh hit Dhaliwal in the head and arms with loppers.The other three came and attacked, - Adab with loppers, Sam with what I choose to call the pick handle, (it has been called a variety of things but we all know that’s what it was) and Sangha with the hoe, and they are all guilty as parties of providing assistance.Sam attacked Pritam, Dhaliwal went down, being hit by Fateh and Adab so the Crown says there is clear evidence that they were all involved one way or another on this attack on Dhaliwal.Why didn’t Rampi get involved? The Crown says that’s pretty obvious.He was a pretty timid sort of a person – look at what Constable Bidois said.He looked pretty frightened when he spoke to him and that’s why he stood by and didn’t do anything.

[44] During the course of deliberations, the jury asked two questions about the charge of intent to cause grievous bodily harm.Mr Koya submitted that the questions identified problems of primary and secondary liability in respect of the grievous bodily harm charge.Accordingly, he submitted, the Judge was required to clarify the legal principles applicable.Mr Koya referred us to the two questions put by the jury to the Judge.The thrust of the questions and answers is adequately captured in paragraphs [2]-[4] (inclusive) of the Judge’s answers to the jury:

[2] Firstly you have asked “is count 3 two separate charges ie intent to cause grievous bodily harm and causing grievous bodily harm” and you go on to ask “is it possible to find someone guilty of one part but not the other”.

[3] Let us deal with it in stages.The first thing is it is not two separate charges.For there to be any conviction on count 3 you must conclude that one person both caused grievous bodily harm and intended to do that.If you find one person in that position you may then conclude that others were involved as parties or not.That is a separate issue but there has to be somebody who both did it and intended to do it.So that is the answer to the first part and it follows that if somebody is “guilty of one part but not the other”, to use your words, then they are not guilty of the count because it has got both elements there.

[4] You then ask, also in relation to count 3, “can it be downgraded to a lesser charge such as assault”.The short answer is no but I will explain a bit better than that.In some instances the Crown lays charges as alternatives.Charge A or alternatively if not A charge B, usually one less serious, such as to use your illustration, assault.In this case the Crown has elected to charge only the grievous bodily harm, intending grievous bodily harm.It has run its case on that basis and it does not [now] seek to ask you to consider any alternative count.So you need to consider only the count that is before you and you need to be satisfied beyond reasonable doubt that both of those elements have been proved, not one of them, if anybody is to be convicted. If you are not sure you cannot convict.Provided one person has in your view been responsible for causing grievous bodily harm with the intention of doing that then you can go on and consider whether others are parties.(our emphasis)

[45] At the heart of Mr Koya’s complaint is the proposition that the Judge failed to deal adequately with the jury’s questions about the grievous bodily harm charge.The question is whether the answer given by the Judge in paragraphs [3] and [4] of the extract set out in paragraph [44] above dealt adequately with the issue.

[46] Mr Koya says it did not because the Judge failed to explain to the jury, either in his summing up or in answer to the questions from the jury, that if all that could be proved was that the offence was committed either by Fateh or Adab, both must be acquitted.Both could be convicted only if the one who did not commit the crime aided and abetted the other: see R v Witika at 622, citing, with approval, a passage from Smith and Hogan on Criminal Law (6^th ed) at 137-138.In Witika, Cooke P, delivering the judgment of the Court, said:

As to the relevant principles of law, it appears to us that they are succinctly and accurately set out in Smith and Hogan on Criminal Law, 6th ed., in a passage at pp.137-8 under the heading Participation by Inactivity. That passage should be read in full, together with the cases cited in it. The crucial part of it, however, is contained in the following two sentences:

If, however, all that can be proved is that the offence was committed either by D1 or by D2, both must be acquitted. Only if it can be proved that the one who did not commit the crime must have aided and abetted it can both be convicted.

[47] Mr Heron submitted that the directions given to the jury in paragraphs [15] and [16] of the summing up were adequate to deal with this issue, particularly in the context of the evidence as a whole.

[48] Our starting point must be the Judge’s directions to the jury in his summing up.In paragraph [16] (set out in paragraph [42] above) the Judge made it clear to the jury that it was enough for the Crown to satisfy them that each of the accused was either a principal or a party.

[49] The question raised by the jury concerned the nature of the charge.It had two component parts.The first related to the elements of the offence charged in count 3.The second concerned the possibility of a verdict on a lesser charge.

[50] In paragraph [3] of his answers to the jury (see paragraph [44] above) the Judge reinforced the need for proof that one person both caused grievous bodily harm and intended to do that.He added that if the jury found one person in that position it was open to them to conclude that others were involved as parties or not.The Judge was careful to separate questions of principal and secondary offending in that answer.

[51] Although a direction in the form suggested in Witika may be desirable, the absence of such a direction need not be fatal.In Witika itself this Court observed that if the evidence went far enough to show all accused must have been criminally involved, it was not necessary for the precise part played by each to be identified: see Witika at 623.We refer also to R v Renata [1992] 2 NZLR 346 (CA) at 349.In that case, in disagreeing with dicta in R v Nathan [1981] 2 NZLR 473 at 475 (that s66(1) was not an appropriate provision for a case where the identity of the principal offender is not established), Cooke P, for a bench of five, said:

Where the principal offender cannot be identified it must be enough for the purposes of s66(1) to prove that each individual accused must have been either the principal offender or a party in one of the other ways covered by that subsection.

[52] On the evidence and having regard to the way the Crown put its case, it was clearly open to the jury to regard the appellants as acting in concert in a manner which characterised each of them either as a principal or as an aider or abettor of a principal, in respect of the offence of which they were convicted.The Judge’s directions, both in summing up and in response to the jury question were entirely apt.

[53] It follows, in the circumstances of this particular case, that a direction in the form suggested in Witika was not required.

Result

[54] For the reasons we have given each appeal against conviction is dismissed.

Solicitors:

Crown Solicitors, Auckland