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Kopelani v R [2005] NZCA 285 (23 November 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/05

THE QUEEN

v

OFISA ANDREW KOPELANI

Hearing: 17 August 2005

Court: Anderson P, Randerson and Williams JJ

Counsel: L B Cordwell and G Ghahraman for Appellant
M D Downs for Crown

Judgment: 23 November 2005

JUDGMENT OF THE COURT

A Mr Kopelani’s convictions for murder and attempted murder are both quashed and a re-trial is ordered.
B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Williams J)

Issues

[1] The appellant and James Michael Leuluaialii were convicted by a jury in the High Court at Auckland before Cooper J of murdering Mr Michael Heremaia on 9 November 2003 and of attempting to murder Mr Michael George Brown Afeaki. An associate, Benjamin Red Tumahai, had previously pleaded guilty to the offences. Mr Kopelani was sentenced to life imprisonment with a minimum non parole period of 15 years.
[2] Mr Kopelani now appeals to this Court on the grounds that the Judge misdirected the jury, particularly in relation to the possibility of conviction for manslaughter.
[3] An appeal against sentence was originally filed. It was abandoned at the hearing and is formally dismissed.

Facts

[4] The Crown alleged that Messrs Michael and Matthew Heremaia and Mr Afeaki ran a "tinny" house at 18 Appleby Place, Mangere, South Auckland, for the "King Cobra" gang. The day-to-day oversight of the "tinny" house was in the hands of Messrs Tumahai, Leuluaialii, the appellant, and a Mr Tuipulotu. In the weeks prior to 9 November 2003 there had been a dispute about the three accused "skimming off the top" proceeds of the "tinny" house. As a result the operation was taken from the three accused by the King Cobra gang at a meeting a few days prior to the evening of 8-9 November.
[5] During the earlier part of that evening there had been a party at the home of a Ms Peyroux, the mother of the appellant’s partner Ms Napara. The appellant and Ms Napara lived at that address. Amongst those present were the four who had been running the "tinny" house.
[6] Ms Peyroux testified that, at what would appear to have been about 1:00a.m, she heard Mr Tumahai say:

After my drink I’m going to kill someone.

She said Messrs Kopelani and Leuluaialii were about five metres away. Although she said Mr Tumahai made his statement in a voice which was "not too loud", Messrs Kopelani and Leuluaialii were watching him at the time.

[7] Evidence was called from a number of other attenders. Though some gave evidence of Mr Tumahai behaving in a way that concerned them there was no evidence from other witnesses of Mr Tumahai’s statement.
[8] Subsequently the appellant made videotaped statements to the police. In one of these he said that Mr Tumahai was -

telling my father-in-law that he’s gonna do something wild after his drink and my mother-in-law also heard.

[9] He later said he did not hear what was said but later again appeared to say he overheard Mr Tumahai’s statement.
[10] About 3:00a.m. Messrs Tumahai, Leuluaialii and Kopelani left Ms Peyroux’s house in Mr Kopelani’s car. He was driving. Evidence as to the reason for their departure was mixed but included a suggestion that Mr Kopelani intended to drive Mr Tumahai home to Orakei. But there was other evidence that the trio intended to drive to Appleby Place. In one statement, Mr Kopelani opted for the former version but said that, once they were in the car, Mr Tumahai suggested they went to Appleby Place to get money for petrol.
[11] In his final statement, Mr Kopelani said they left to drive to Appleby Place to give whoever was there "taps". "Taps" he defined as "just give them little hiding". He said he thought the "taps" would be with their hands. He did not expect use of a weapon.
[12] All the evidence was that when the trio arrived at Appleby Place, Messrs Tumahai and Leuluaialii went into the house leaving Mr Kopelani in the car.
[13] Mr Afeaki said Mr Leuluaialii threw him on the ground, pinned him down and Mr Tumahai stabbed him. Mr Afeaki said there had been a knife on the kitchen table at Appleby Place but the evidence was ambiguous as to whether there had also been a knife in Mr Kopelani’s car on the journey to the property. If so, there was no evidence Mr Kopelani was aware of the fact.
[14] Mr Afeaki said he was stabbed in the chest a number of times by Mr Tumahai. He thought he was about to be killed. He managed to escape. Looking back as he did so, he saw Messrs Tumahai and Leuluaialii walking towards Mr Michael Heremaia and pushing him against the wall.
[15] Mr Kopelani said in his statement that he saw Mr Afeaki leaving the house. He entered the premises and saw a person whom he originally thought was Mr Tumahai punching Mr Michael Heremaia.
[16] Mr Kopelani’s statement said Mr Tumahai’s assault on Mr Michael Heremaia only ceased when Mr Leuluaialii grabbed Mr Tumahai around the throat and dragged him away.
[17] A post-mortem examination on Mr Michael Heremaia showed 37 injuries. 17 were stab wounds. Two were potentially fatal.
[18] The trio then left the premises, but not without Mr Tumahai trying to find Mr Afeaki. They drove to the address of a Ms Flavell. She said there was an argument between them as to their respective responsibilities. As he left her address, Mr Kopelani said, he saw a knife in the car and threw it out.
[19] He returned to Ms Peyroux’s home. Ms Napara said Mr Kopelani gave her items of clothing on which there were spots of blood and told her to wash them. She complied with his directions and then gave the clothes, still wet, to a friend, a Mr Pepe, to destroy. She initially said that he told her that the "man on", gang parlance for the person in charge of the "tinny" house, was dead.
[20] Ms Napara also initially said Mr Kopelani told her the three had gone around to Appleby Place to "beat up" the inhabitants and said he saw Mr Tumahai walk in with a knife and stab Mr Heremaia. The statement that Mr Kopelani saw Mr Tumahai enter Appleby Place with a knife might, if accepted by the jury, have been relevant to the state of Mr Kopelani’s knowledge of Mr Tumahai’s intention but, since that evidence was given after Ms Napara had been declared hostile and retracted the statement, its weight is dubious. However, Mr Pepe, too, said Mr Kopelani told him that Mr Tumahai "said to him that they were going to do a hit on Appleby", a statement to which he adhered under cross-examination.

Summing-up

[21] As mentioned, the only aspect of the summing-up currently challenged is whether, against that background, the possibility of a manslaughter verdict was left open to the jury.
[22] In dealing with the elements of the charges, the Judge noted the Crown’s position in its closing address that both Messrs Leuluaialii and Kopelani assisted Mr Tumahai in his commission of the offences. After dealing with the elements of murder under s 167(a), the Judge said the Crown’s stance was that Mr Tumahai meant to kill Mr Heremaia and "that Mr Leuluaialii and Mr Kopelani knew he intended to do so". He gave a similar direction as to assistance in relation to s 167(b).
[23] The Judge then went on to direct the jury on the possibility of a manslaughter verdict in relation to Mr Kopelani. He said:

[39] There is a further matter which needs to be considered at this point. As I have already said, culpable homicide which is not murder is manslaughter. Murder is one kind of culpable homicide, manslaughter is the other. If a culpable homicide has been committed, but you are not satisfied that the culpable homicide involved acts committed with the necessary murderous intent (here I am referring back to ss 167(a) and (b)), then the proper verdict is one of manslaughter. That possible outcome is actually embraced within the charge of murder. It does not matter that manslaughter is not referred to in the indictment. Under our law all culpable homicides which do not amount to murder must be treated as manslaughter.
[40] If you were of the view that Michael Heremaia’s death were [sic] not the result of murder you would still entitled [sic], if you thought that the accused had assisted Mr Tumahai in killing Michael, to conclude that they were guilty as parties to manslaughter. In this respect it does not matter that Mr Tumahai pleaded guilty to murder. ... If you decided that it was a case of manslaughter you would be entitled to convict these accused if you thought that they had assisted Mr Tumahai to kill Michael Heremaia, and the question of whether they assisted would be based on the same actions, on the evidence, as the Crown relies on when it says they assisted him to commit murder.
...
[45] In order for an accused person to be liable as a party under s 66(1)(b), the Crown must prove that the offence has been committed by some person other than that accused. Here, where the charge that I am presently talking about is murder, the Crown’s evidence must satisfy you beyond a reasonable doubt that some person other than Mr Leuluaialii or Mr Kopelani committed a murder, and there is no real doubt about that, everybody agrees that is what Mr Tumahai did. And that Mr Tumahai acted with the necessary murderous intent that I have earlier described. Then, the Crown must show that Mr Leuluaialii and/or Mr Kopelani did some act covered by s66(1) knowing that that other person (Mr Tumahai) meant to cause Michael’s death, or meant to injure him in a way that was likely to cause death and was reckless as to whether death ensued or not.
[46] In this case the Crown says that Mr Leuluaialii and Mr Kopelani assisted Mr Tumahai to murder Michael Heremaia. As I have said, in order to prove that they did, the Crown must establish some intentional and deliberate act to assist in the commission of the offence. ... it says that Mr Kopelani assisted by driving the other two to 18 Appleby Place, standing guard whilst they went inside and driving them away from the property afterwards.

[24] In relation to the charge of attempted murder, the Judge directed:

[48] ... Mr Kopelani is said to have been a party on the same basis that he is alleged to have been a party to Michael Heremaia’s murder. In other words, he was the driver. Now the crime of attempted murder itself involves attempting to commit the crime of murder with the elements I have previously described. To prove an attempt to commit murder the Crown must prove beyond a reasonable doubt, that there was on the part of the principal, Mr Tumahai, an intention to commit murder and that he did some act for the purpose of carrying that intention into effect – these are the stabbing actions that he made. Both of these elements are important, but it is the second one that needs particularly careful consideration on this charge. In other words you have to be satisfied that what Mr Tumahai did was for the purpose of actually trying to murder Mr Afeaki.

[25] Immediately following the jury’s retirement, the Judge made the usual enquiry of counsel as to further directions which might be necessary. As a result, he further directed the jury in the following way :

[103] First, in relation to the charge of attempted murder, I may have said at one stage that it was necessary for the Crown to show an intent to commit murder, implying that it would be sufficient if the Crown showed a case coming within the kind of intent mentioned in either s 167(a) or (b). On that issue, I should tell you that the Crown must show an intention to kill, that is, an intention coming within s 167(a) only. Recklessness would not be enough. ...

[26] It may be significant that the only mention by the Judge of the "after my drink I’m going to kill someone" comment was in his summary of Mr Kopelani’s defence and when dealing with a submission that the evidence of Ms Peyroux supportive of her daughter’s partner on this topic meant her credibility was to be preferred to that of Mr Pepe.
[27] We note the jury was given copies of the Crimes Act 1961, ss 167(a)(b) and s 66(1) and that late in the evening of the day of their retirement, the jury asked:

What is difference between murder and manslaughter [and] How in this case would someone be found guilty of manslaughter?

[28] The Judge responded that the Crown must establish there was a killing by an unlawful act and that "the accused knowingly assisted Mr Tumahai to carry out the fatal assault" with the intent under either s 167(a)(b) and thus that "the accused knowingly assisted Mr Tumahai to commit murder".

Submissions

[29] Mr Cordwell, counsel for Mr Kopelani on the appeal, refashioned the original grounds of appeal into six paragraphs, three of which were posited on what were said to be errors of Mr Kopelani’s trial counsel. They were in not pressing for manslaughter as an alternative defence to murder when that was open on the facts; not following Mr Kopelani’s instructions on the alternative verdict of manslaughter; and producing a Crown witness’s statement as a defence exhibit. He submitted the trial Judge erred in law in his directions on manslaughter and in answering the jury’s question. Both led to possible miscarriage of justice.
[30] He further submitted the Judge erred in law in respect of the attempted murder count in focusing on Mr Tumahai’s intent and not making clear the jury must be satisfied that Mr Kopelani knew the essential matters constituting the offence, including that he knew Mr Tumahai intended to kill Mr Heremaia.
[31] Leaving aside the witness statement ground, all the grounds of appeal consolidate into the question whether a manslaughter verdict was open in Mr Kopelani’s case and whether the Judge sufficiently directed the jury in that regard. This is much more a conventional misdirection case than one involving counsel error. As the Supreme Court has recently said, the overriding principle in counsel error cases is whether there has been a miscarriage of justice, the conduct of counsel being but one factor in that consideration: Sungsuwan v R [2005] NZSC 57; (2005) 21 CRNZ 977 at [65]- [66] per Gault J.
[32] Mr Cordwell relied on passages in Mr Kopelani’s videotaped statements as being consistent with his knowing an assault was contemplated when he drove the trio to Appleby Place but being ignorant of the knife or any intention on Mr Tumahai’s part to kill Mr Heremaia. Accordingly, Mr Cordwell submitted, there was no proof Mr Kopelani knew death was likely. Indeed, Mr Cordwell submitted, the interviews contained statements that might properly have led to Mr Kopelani’s acquittal on both murder and manslaughter. Failure on the part of trial counsel to argue for a manslaughter conviction was accordingly an error leading to possible miscarriage.
[33] Mr Cordwell relied on the jury question as being consistent with a possible manslaughter verdict. It required a full direction at that point as well as earlier in the summing-up.
[34] In relation to the summing-up, Mr Cordwell relied on the The King v Stuck [1948] NZCA 19; [1949] NZLR 108 to support the submission that a verdict of manslaughter should be left to a jury where there is any evidence to support it.
[35] He submitted the trial Judge’s direction failed to convey in para [40] that the verdict must be based on the appellant’s state of mind, not that of Mr Tumahai. It suggested Mr Kopelani could only be found guilty of manslaughter if the principal was only guilty of that offence because of lack of proof of the murderous intents required by ss 167(a) (b). That was contradicted by Mr Tumahai’s guilty plea to the murder count and was, in any event, negated by the Judge in para [45]. The two passages in combination, he submitted, effectively ruled out the possibility of a manslaughter verdict for the appellant. If Mr Tumahai had committed murder, the directions, he suggested, left it as a real likelihood that the jury would have concluded, mistakenly, that Mr Kopelani could be guilty of being a party to murder only. He submitted the Judge should have directed the jury that Mr Kopelani could only have been guilty of murder if he drove Mr Tumahai to Appleby Place knowing he intended to kill Mr Heremaia or knowing he intended to cause him serious injury likely to cause death. Mr Kopelani would then know there was a real possibility that death might occur as a result of Mr Tumahai’s actions.
[36] He submitted the Judge misdirected the jury on the mens rea requirements of s 66(1) in relation to manslaughter in failing to direct the jury that a party intentionally helping or encouraging an unlawful act will be guilty of manslaughter if unaware of the principal’s murderous intent. There was no direction on the differing knowledge and intent for parties to manslaughter as opposed to parties to murder. The direction at para [40] only told the jury Mr Kopelani could not be guilty of being party to manslaughter if he assisted Mr Tumahai to kill Mr Heremaia. It did not mention the necessity for proof of Mr Kopelani’s knowledge of Mr Tumahai’s state of mind.
[37] Similarly, Mr Cordwell submitted, the Judge’s answer to the jury’s question repeated the necessity for proof that the appellant knowingly assisted Mr Tumahai to carry out the fatal assault, but again omitted the necessary direction as to the differing intents required to be proved for parties to murder as opposed to parties to manslaughter.
[38] Mr Cordwell also challenged the adequacy of the directions on attempted murder. The directions summarised the actions of Messrs Tumahai and Leuluaialii but omitted the fact that Mr Afeaki decamped from the premises before Mr Kopelani’s entry. He conceded there was evidence of Mr Kopelani’s assistance to the others in the sense of driving them to Appleby Place but, he suggested, the direction was incorrect in omitting the necessity for proof of both the appellant’s knowledge of the principal’s intent and his own intent knowingly to assist him. The Crown had to establish to the required standard that Mr Kopelani knew Mr Tumahai intended to kill Mr Heremaia when he drove him to Appleby Place that evening. The Judge covered the question of assistance by driving but never dealt with the parties’ intent. The result, he submitted, was that if the jury decided Mr Tumahai had intended to kill Mr Afeaki, as was shown by his plea, in terms of the direction, the almost automatic consequence would be their finding Mr Kopelani guilty of attempted murder.
[39] For the Crown, Mr Downs accepted the Crown ran the case on the basis of the dispute as to the operation of the "tinny" house, Mr Tumahai’s remark within the appellant’s earshot about killing, the trio’s later leaving for Appleby Place with Mr Kopelani driving and his admitting he knew a "hit" was intended. All that proved an enterprise going beyond violence and showing an intent to murder. He made the point that the defence nowhere explained how a defence of manslaughter could have been advanced without exposing Mr Kopelani to a conviction for murder given his consistent denials of being party to any criminal offending.
[40] The summing-up on manslaughter was, he submitted, advantageous to the appellant rather than the contrary. The lack of any specific direction as to the availability of manslaughter helped Mr Kopelani since if the jury concluded he had a state of knowledge and intention different from Mr Tumahai, the result would have been acquittal. Even the answer to the question elevated what was required in terms of mens rea for the secondary party.
[41] Although Mr Downs accepted that trial judges must direct juries as to possible defences founded on credible or plausible narrative even if those defences are not pursued by an accused, he submitted the narrative here was merely speculative. Looked at in the round, he suggested, the appellant’s position was made clear, namely that he did not assist in the commission of a "hit" at Appleby Place as he was tricked into driving the other two there.
[42] As for attempted murder, Mr Downs accepted that although there may have been lack of clarity in the Judge’s direction in his summing-up as to the mens rea required of a party to attempted murder, any omission in that regard was corrected by the further direction given by the Judge shortly after the jury commenced its retirement when he directed that the Crown must prove an intent to kill. He also submitted that the Judge’s general directions as to parties properly covered the point.

Discussion

[43] As counsel acknowledged during the hearing this was a case with close parallels to R v Tomkins [1985] 2 NZLR 253. In that case three men were involved in a death. In Tomkins’ statement he admitted the three planned to rob the deceased and armed themselves with knives accordingly. After robbing the deceased they drove him to a deserted spot. He alighted from the vehicle and fell to the ground. Tomkins stood by, knife in hand, while the principal offender stabbed the victim twice. Tomkins maintained the weapons were taken to scare not to kill and the three conspirators did not intend to kill. Invited by the amicus to lay down a test direction for such cases, this Court held (at 255):

The availability of manslaughter as a verdict in such cases gives effect to the community's sense that a man who joins in a criminal enterprise with the knowledge that knives (or other weapons such as loaded guns) are being carried should bear a share of criminal responsibility for an ensuing death; but that, if he did not think that the weapons would be intentionally used to kill, it may be unduly harsh to convict him of murder.

[44] Then, after citing R v Reid (1975) 62 Cr App R 109, 112 and s 66, the judgment continued (at 256):

Reading that section together with the definitions of "Crime" and "Offence" in s 2(1) of that Act and the provisions of s 160 as to culpable homicide, we think the act constituting the offence for the purposes of s 66 is rightly to be seen, simply and broadly, as culpable homicide.
If he meant to encourage the murder, the accused charged as a party will be guilty of murder under s 66(1). If not, he will be guilty of murder under s 66(2) if the Crown satisfies the jury that he knew that there was a substantial or real risk, or that it could well happen, that his confederate would kill with murderous intent in some such circumstances as in fact arose: ... But the possibility of murder may have been so remote that it was never a real risk in the accused's mind. And a different but comparable case arises when, although there was a known possibility of murder, in the event murder is committed in circumstances totally outside the accused's contemplation: ... In such a case there will be room for a jury to regard the murder, not merely as an unexpected incident in the course of the joint enterprise, but as a total departure. ...
The common feature of the rather less grave cases is that the subjective foresight necessary to make the accused guilty of the murder as a party is lacking. Nevertheless he will be guilty of manslaughter if the jury are satisfied that he knew that, as knives were being carried, a killing could well eventuate - even by their use in some way or circumstances totally unexpected. ...
Accordingly in joint enterprise cases where an accused is charged with murder as a party it may be appropriate to direct as follows. He will be guilty of the murder if he intentionally helped or encouraged it. He will also be guilty of it if he foresaw murder by a confederate, and in the kind of situation which arose, as a real risk. But if he knew only that at some stage in the course of the carrying out of the criminal plan there was a real risk of a killing short of murder, he will be guilty of manslaughter. So too if he foresaw a real risk of murder but it was committed at a time or in circumstances very different from anything he ever contemplated: so different that the jury are not satisfied that the murder should fairly be regarded as occurring in the carrying out of the plan. In the latter case they can still convict of manslaughter if satisfied that he must have known that, with lethal weapons being carried, there was an ever-present real risk of a killing in some way.

[45] That direction has been refined in the years since. R v Hardiman [1995] 2 NZLR 650, 652 and R v Rapira [2003] 3 NZLR 794 paras [21]-[27] set out what must be proved for an accused to be found guilty as a party to murder under s 168(1)(a). And in R v Te Moni [1998] 1 NZLR 641, 649-650 this Court re-formulated the passage earlier cited from Tomkins in the following way:

This [Tomkins at 256] may be subdivided into discrete propositions ... as follows:

1. If the principal offender commits murder, a secondary party may be guilty of the murder (under s 66(1)) if he intentionally helped or encouraged it. ...
2. He will also be guilty if he knew there was a real or substantial risk that murder would be committed by another participant, in the kind of situation which arose. ...
3. If the accused knew there was a real risk of a killing, but did not contemplate any substantial risk that the killing would occur in circumstances amounting to murder, he will be guilty of manslaughter only. ...
4. If the accused foresaw a real risk of murder, but in the event murder was committed at a time or in circumstances very different from anything the accused ever contemplated – "so different that the jury are not satisfied that the murder should fairly be regarded as occurring in the carrying out of the plan" – he will not be guilty of murder. But he can still be convicted of manslaughter if the jury was satisfied the accused must have known that, with lethal weapons being carried, there was an ever-present real risk of a killing in some way.

[46] It is clear that all trial counsel approached this matter on the footing that Mr Kopelani (and Mr Leuluaialii) were either parties to murder or should have been acquitted on the major charge because they did nothing to assist Mr Tumahai. Neither defence counsel conducted the trial on the basis that a manslaughter verdict was open in terms of Tomkins and Te Moni. That was particularly the situation in Mr Kopelani’s case. That approach is reflected in the passages from the summing-up earlier cited. That notwithstanding, it is clear the Judge was obliged to direct the jury in accordance with those cases.
[47] Unfortunately, however, while the Judge’s directions would have focused the jury’s attention on the actions of the two accused said to amount to their assisting Mr Tumahai to commit murder, they failed to deal with the possibility, open on one view of the evidence, that a verdict of manslaughter may have been possible as far as Mr Kopelani was concerned. That could have arisen either because of his lack of knowledge of Mr Tumahai’s intentions or because he knew there was a real risk of a killing as Mr Tumahai was armed with a knife but he did not contemplate a substantial risk the killing would occur in circumstances amounting to murder.
[48] The summing-up effectively removed the issue of manslaughter from the jury by conveying the impression that Mr Kopelani could be convicted of manslaughter only if the jury concluded that Mr Tumahai, despite his plea, was guilty of manslaughter rather than murder. By his statement in para [45] the Judge made it clear there could be no real doubt that there was a case of murder by Mr Tumahai but did not focus sufficiently on Mr Kopelani’s knowledge and state of mind.
[49] In view of the authorities and the evidence, we therefore conclude that there was an evidential basis on which the jury, had it been so directed, might reasonably have taken the view that the appropriate verdict in Mr Kopelani’s case was one of manslaughter. That could have arisen from a number of circumstances. They included that the possibility of murder was so remote it was never a real risk in Mr Kopelani’s mind. A second possibility is that he thought they were going to Appleby Place to do a "hit" but never knew of the possibility of murder since he did not know the beating would go as far as a killing. A third possibility is that, even if the jury concluded Mr Kopelani was aware at material times that Mr Tumahai was armed with a knife, he may not have contemplated any real risk of a killing or a killing in circumstances amounting to murder.
[50] We think it likely the Judge was misled by counsel’s approach and concluded the directions in Tomkins and Te Moni were inapplicable because of Mr Tumahai’s plea to murder. Nonetheless, in terms of Te Moni, we think propositions 3 and 4 were open in relation to Mr Kopelani on the facts of this case and were, with respect, inadequately covered in the summing-up.
[51] It follows that Mr Kopelani’s conviction for murder must be quashed and a new trial ordered.
[52] The same conclusion is the only one open in relation to the direction on attempted murder.
[53] Although the Judge ultimately correctly directed the jury as to the necessity for the Crown to prove an intent on Mr Tumahai’s part to kill, he earlier directed them that Mr Kopelani was a party to that offence "on the same basis that he is alleged to have been a party to ... murder. In other words he was the driver". The jury were unaware whether Mr Tumahai had pleaded guilty to murder on the basis of s 167(a) or (b) but the Crown had to prove the former and prove Mr Kopelani assisted Mr Tumahai knowing he held that intention. The appellant could not be convicted of attempted murder unless the Crown was able to prove a specific intent on Mr Tumahai’s behalf to kill and knowledge of that intention by Mr Kopelani.
[54] Again with respect, the summing-up failed to make that point appropriately clear to the jury.
[55] Accordingly Mr Kopelani’s conviction for attempted murder must also be quashed and a re-trial is ordered.

Result

[56] In the result Mr Kopelani’s convictions for murder and attempted murder are both quashed and a re-trial ordered.

Solicitors:
Crown Law Office, Wellington.

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[1]	The appellant and James Michael Leuluaialii were convicted by a jury in the High Court at Auckland before Cooper J of murdering Mr Michael Heremaia on 9 November 2003 and of attempting to murder Mr Michael George Brown Afeaki. An associate, Benjamin Red Tumahai, had previously pleaded guilty to the offences. Mr Kopelani was sentenced to life imprisonment with a minimum non parole period of 15 years.
[2]	Mr Kopelani now appeals to this Court on the grounds that the Judge misdirected the jury, particularly in relation to the possibility of conviction for manslaughter.
[3]	An appeal against sentence was originally filed. It was abandoned at the hearing and is formally dismissed.

[4]	The Crown alleged that Messrs Michael and Matthew Heremaia and Mr Afeaki ran a "tinny" house at 18 Appleby Place, Mangere, South Auckland, for the "King Cobra" gang. The day-to-day oversight of the "tinny" house was in the hands of Messrs Tumahai, Leuluaialii, the appellant, and a Mr Tuipulotu. In the weeks prior to 9 November 2003 there had been a dispute about the three accused "skimming off the top" proceeds of the "tinny" house. As a result the operation was taken from the three accused by the King Cobra gang at a meeting a few days prior to the evening of 8-9 November.
[5]	During the earlier part of that evening there had been a party at the home of a Ms Peyroux, the mother of the appellant’s partner Ms Napara. The appellant and Ms Napara lived at that address. Amongst those present were the four who had been running the "tinny" house.
[6]	Ms Peyroux testified that, at what would appear to have been about 1:00a.m, she heard Mr Tumahai say:

[7]	Evidence was called from a number of other attenders. Though some gave evidence of Mr Tumahai behaving in a way that concerned them there was no evidence from other witnesses of Mr Tumahai’s statement.
[8]	Subsequently the appellant made videotaped statements to the police. In one of these he said that Mr Tumahai was -

[9]	He later said he did not hear what was said but later again appeared to say he overheard Mr Tumahai’s statement.
[10]	About 3:00a.m. Messrs Tumahai, Leuluaialii and Kopelani left Ms Peyroux’s house in Mr Kopelani’s car. He was driving. Evidence as to the reason for their departure was mixed but included a suggestion that Mr Kopelani intended to drive Mr Tumahai home to Orakei. But there was other evidence that the trio intended to drive to Appleby Place. In one statement, Mr Kopelani opted for the former version but said that, once they were in the car, Mr Tumahai suggested they went to Appleby Place to get money for petrol.
[11]	In his final statement, Mr Kopelani said they left to drive to Appleby Place to give whoever was there "taps". "Taps" he defined as "just give them little hiding". He said he thought the "taps" would be with their hands. He did not expect use of a weapon.
[12]	All the evidence was that when the trio arrived at Appleby Place, Messrs Tumahai and Leuluaialii went into the house leaving Mr Kopelani in the car.
[13]	Mr Afeaki said Mr Leuluaialii threw him on the ground, pinned him down and Mr Tumahai stabbed him. Mr Afeaki said there had been a knife on the kitchen table at Appleby Place but the evidence was ambiguous as to whether there had also been a knife in Mr Kopelani’s car on the journey to the property. If so, there was no evidence Mr Kopelani was aware of the fact.
[14]	Mr Afeaki said he was stabbed in the chest a number of times by Mr Tumahai. He thought he was about to be killed. He managed to escape. Looking back as he did so, he saw Messrs Tumahai and Leuluaialii walking towards Mr Michael Heremaia and pushing him against the wall.
[15]	Mr Kopelani said in his statement that he saw Mr Afeaki leaving the house. He entered the premises and saw a person whom he originally thought was Mr Tumahai punching Mr Michael Heremaia.
[16]	Mr Kopelani’s statement said Mr Tumahai’s assault on Mr Michael Heremaia only ceased when Mr Leuluaialii grabbed Mr Tumahai around the throat and dragged him away.
[17]	A post-mortem examination on Mr Michael Heremaia showed 37 injuries. 17 were stab wounds. Two were potentially fatal.
[18]	The trio then left the premises, but not without Mr Tumahai trying to find Mr Afeaki. They drove to the address of a Ms Flavell. She said there was an argument between them as to their respective responsibilities. As he left her address, Mr Kopelani said, he saw a knife in the car and threw it out.
[19]	He returned to Ms Peyroux’s home. Ms Napara said Mr Kopelani gave her items of clothing on which there were spots of blood and told her to wash them. She complied with his directions and then gave the clothes, still wet, to a friend, a Mr Pepe, to destroy. She initially said that he told her that the "man on", gang parlance for the person in charge of the "tinny" house, was dead.
[20]	Ms Napara also initially said Mr Kopelani told her the three had gone around to Appleby Place to "beat up" the inhabitants and said he saw Mr Tumahai walk in with a knife and stab Mr Heremaia. The statement that Mr Kopelani saw Mr Tumahai enter Appleby Place with a knife might, if accepted by the jury, have been relevant to the state of Mr Kopelani’s knowledge of Mr Tumahai’s intention but, since that evidence was given after Ms Napara had been declared hostile and retracted the statement, its weight is dubious. However, Mr Pepe, too, said Mr Kopelani told him that Mr Tumahai "said to him that they were going to do a hit on Appleby", a statement to which he adhered under cross-examination.

[21]	As mentioned, the only aspect of the summing-up currently challenged is whether, against that background, the possibility of a manslaughter verdict was left open to the jury.
[22]	In dealing with the elements of the charges, the Judge noted the Crown’s position in its closing address that both Messrs Leuluaialii and Kopelani assisted Mr Tumahai in his commission of the offences. After dealing with the elements of murder under s 167(a), the Judge said the Crown’s stance was that Mr Tumahai meant to kill Mr Heremaia and "that Mr Leuluaialii and Mr Kopelani knew he intended to do so". He gave a similar direction as to assistance in relation to s 167(b).
[23]	The Judge then went on to direct the jury on the possibility of a manslaughter verdict in relation to Mr Kopelani. He said:

[26]	It may be significant that the only mention by the Judge of the "after my drink I’m going to kill someone" comment was in his summary of Mr Kopelani’s defence and when dealing with a submission that the evidence of Ms Peyroux supportive of her daughter’s partner on this topic meant her credibility was to be preferred to that of Mr Pepe.
[27]	We note the jury was given copies of the Crimes Act 1961, ss 167(a)(b) and s 66(1) and that late in the evening of the day of their retirement, the jury asked:

[29]	Mr Cordwell, counsel for Mr Kopelani on the appeal, refashioned the original grounds of appeal into six paragraphs, three of which were posited on what were said to be errors of Mr Kopelani’s trial counsel. They were in not pressing for manslaughter as an alternative defence to murder when that was open on the facts; not following Mr Kopelani’s instructions on the alternative verdict of manslaughter; and producing a Crown witness’s statement as a defence exhibit. He submitted the trial Judge erred in law in his directions on manslaughter and in answering the jury’s question. Both led to possible miscarriage of justice.
[30]	He further submitted the Judge erred in law in respect of the attempted murder count in focusing on Mr Tumahai’s intent and not making clear the jury must be satisfied that Mr Kopelani knew the essential matters constituting the offence, including that he knew Mr Tumahai intended to kill Mr Heremaia.
[31]	Leaving aside the witness statement ground, all the grounds of appeal consolidate into the question whether a manslaughter verdict was open in Mr Kopelani’s case and whether the Judge sufficiently directed the jury in that regard. This is much more a conventional misdirection case than one involving counsel error. As the Supreme Court has recently said, the overriding principle in counsel error cases is whether there has been a miscarriage of justice, the conduct of counsel being but one factor in that consideration: Sungsuwan v R [2005] NZSC 57; (2005) 21 CRNZ 977 at [65]- [66] per Gault J.
[32]	Mr Cordwell relied on passages in Mr Kopelani’s videotaped statements as being consistent with his knowing an assault was contemplated when he drove the trio to Appleby Place but being ignorant of the knife or any intention on Mr Tumahai’s part to kill Mr Heremaia. Accordingly, Mr Cordwell submitted, there was no proof Mr Kopelani knew death was likely. Indeed, Mr Cordwell submitted, the interviews contained statements that might properly have led to Mr Kopelani’s acquittal on both murder and manslaughter. Failure on the part of trial counsel to argue for a manslaughter conviction was accordingly an error leading to possible miscarriage.
[33]	Mr Cordwell relied on the jury question as being consistent with a possible manslaughter verdict. It required a full direction at that point as well as earlier in the summing-up.
[34]	In relation to the summing-up, Mr Cordwell relied on the The King v Stuck [1948] NZCA 19; [1949] NZLR 108 to support the submission that a verdict of manslaughter should be left to a jury where there is any evidence to support it.
[35]	He submitted the trial Judge’s direction failed to convey in para [40] that the verdict must be based on the appellant’s state of mind, not that of Mr Tumahai. It suggested Mr Kopelani could only be found guilty of manslaughter if the principal was only guilty of that offence because of lack of proof of the murderous intents required by ss 167(a) (b). That was contradicted by Mr Tumahai’s guilty plea to the murder count and was, in any event, negated by the Judge in para [45]. The two passages in combination, he submitted, effectively ruled out the possibility of a manslaughter verdict for the appellant. If Mr Tumahai had committed murder, the directions, he suggested, left it as a real likelihood that the jury would have concluded, mistakenly, that Mr Kopelani could be guilty of being a party to murder only. He submitted the Judge should have directed the jury that Mr Kopelani could only have been guilty of murder if he drove Mr Tumahai to Appleby Place knowing he intended to kill Mr Heremaia or knowing he intended to cause him serious injury likely to cause death. Mr Kopelani would then know there was a real possibility that death might occur as a result of Mr Tumahai’s actions.
[36]	He submitted the Judge misdirected the jury on the mens rea requirements of s 66(1) in relation to manslaughter in failing to direct the jury that a party intentionally helping or encouraging an unlawful act will be guilty of manslaughter if unaware of the principal’s murderous intent. There was no direction on the differing knowledge and intent for parties to manslaughter as opposed to parties to murder. The direction at para [40] only told the jury Mr Kopelani could not be guilty of being party to manslaughter if he assisted Mr Tumahai to kill Mr Heremaia. It did not mention the necessity for proof of Mr Kopelani’s knowledge of Mr Tumahai’s state of mind.
[37]	Similarly, Mr Cordwell submitted, the Judge’s answer to the jury’s question repeated the necessity for proof that the appellant knowingly assisted Mr Tumahai to carry out the fatal assault, but again omitted the necessary direction as to the differing intents required to be proved for parties to murder as opposed to parties to manslaughter.
[38]	Mr Cordwell also challenged the adequacy of the directions on attempted murder. The directions summarised the actions of Messrs Tumahai and Leuluaialii but omitted the fact that Mr Afeaki decamped from the premises before Mr Kopelani’s entry. He conceded there was evidence of Mr Kopelani’s assistance to the others in the sense of driving them to Appleby Place but, he suggested, the direction was incorrect in omitting the necessity for proof of both the appellant’s knowledge of the principal’s intent and his own intent knowingly to assist him. The Crown had to establish to the required standard that Mr Kopelani knew Mr Tumahai intended to kill Mr Heremaia when he drove him to Appleby Place that evening. The Judge covered the question of assistance by driving but never dealt with the parties’ intent. The result, he submitted, was that if the jury decided Mr Tumahai had intended to kill Mr Afeaki, as was shown by his plea, in terms of the direction, the almost automatic consequence would be their finding Mr Kopelani guilty of attempted murder.
[39]	For the Crown, Mr Downs accepted the Crown ran the case on the basis of the dispute as to the operation of the "tinny" house, Mr Tumahai’s remark within the appellant’s earshot about killing, the trio’s later leaving for Appleby Place with Mr Kopelani driving and his admitting he knew a "hit" was intended. All that proved an enterprise going beyond violence and showing an intent to murder. He made the point that the defence nowhere explained how a defence of manslaughter could have been advanced without exposing Mr Kopelani to a conviction for murder given his consistent denials of being party to any criminal offending.
[40]	The summing-up on manslaughter was, he submitted, advantageous to the appellant rather than the contrary. The lack of any specific direction as to the availability of manslaughter helped Mr Kopelani since if the jury concluded he had a state of knowledge and intention different from Mr Tumahai, the result would have been acquittal. Even the answer to the question elevated what was required in terms of mens rea for the secondary party.
[41]	Although Mr Downs accepted that trial judges must direct juries as to possible defences founded on credible or plausible narrative even if those defences are not pursued by an accused, he submitted the narrative here was merely speculative. Looked at in the round, he suggested, the appellant’s position was made clear, namely that he did not assist in the commission of a "hit" at Appleby Place as he was tricked into driving the other two there.
[42]	As for attempted murder, Mr Downs accepted that although there may have been lack of clarity in the Judge’s direction in his summing-up as to the mens rea required of a party to attempted murder, any omission in that regard was corrected by the further direction given by the Judge shortly after the jury commenced its retirement when he directed that the Crown must prove an intent to kill. He also submitted that the Judge’s general directions as to parties properly covered the point.

[46]	It is clear that all trial counsel approached this matter on the footing that Mr Kopelani (and Mr Leuluaialii) were either parties to murder or should have been acquitted on the major charge because they did nothing to assist Mr Tumahai. Neither defence counsel conducted the trial on the basis that a manslaughter verdict was open in terms of Tomkins and Te Moni. That was particularly the situation in Mr Kopelani’s case. That approach is reflected in the passages from the summing-up earlier cited. That notwithstanding, it is clear the Judge was obliged to direct the jury in accordance with those cases.
[47]	Unfortunately, however, while the Judge’s directions would have focused the jury’s attention on the actions of the two accused said to amount to their assisting Mr Tumahai to commit murder, they failed to deal with the possibility, open on one view of the evidence, that a verdict of manslaughter may have been possible as far as Mr Kopelani was concerned. That could have arisen either because of his lack of knowledge of Mr Tumahai’s intentions or because he knew there was a real risk of a killing as Mr Tumahai was armed with a knife but he did not contemplate a substantial risk the killing would occur in circumstances amounting to murder.
[48]	The summing-up effectively removed the issue of manslaughter from the jury by conveying the impression that Mr Kopelani could be convicted of manslaughter only if the jury concluded that Mr Tumahai, despite his plea, was guilty of manslaughter rather than murder. By his statement in para [45] the Judge made it clear there could be no real doubt that there was a case of murder by Mr Tumahai but did not focus sufficiently on Mr Kopelani’s knowledge and state of mind.
[49]	In view of the authorities and the evidence, we therefore conclude that there was an evidential basis on which the jury, had it been so directed, might reasonably have taken the view that the appropriate verdict in Mr Kopelani’s case was one of manslaughter. That could have arisen from a number of circumstances. They included that the possibility of murder was so remote it was never a real risk in Mr Kopelani’s mind. A second possibility is that he thought they were going to Appleby Place to do a "hit" but never knew of the possibility of murder since he did not know the beating would go as far as a killing. A third possibility is that, even if the jury concluded Mr Kopelani was aware at material times that Mr Tumahai was armed with a knife, he may not have contemplated any real risk of a killing or a killing in circumstances amounting to murder.
[50]	We think it likely the Judge was misled by counsel’s approach and concluded the directions in Tomkins and Te Moni were inapplicable because of Mr Tumahai’s plea to murder. Nonetheless, in terms of Te Moni, we think propositions 3 and 4 were open in relation to Mr Kopelani on the facts of this case and were, with respect, inadequately covered in the summing-up.
[51]	It follows that Mr Kopelani’s conviction for murder must be quashed and a new trial ordered.
[52]	The same conclusion is the only one open in relation to the direction on attempted murder.
[53]	Although the Judge ultimately correctly directed the jury as to the necessity for the Crown to prove an intent on Mr Tumahai’s part to kill, he earlier directed them that Mr Kopelani was a party to that offence "on the same basis that he is alleged to have been a party to ... murder. In other words he was the driver". The jury were unaware whether Mr Tumahai had pleaded guilty to murder on the basis of s 167(a) or (b) but the Crown had to prove the former and prove Mr Kopelani assisted Mr Tumahai knowing he held that intention. The appellant could not be convicted of attempted murder unless the Crown was able to prove a specific intent on Mr Tumahai’s behalf to kill and knowledge of that intention by Mr Kopelani.
[54]	Again with respect, the summing-up failed to make that point appropriately clear to the jury.
[55]	Accordingly Mr Kopelani’s conviction for attempted murder must also be quashed and a re-trial is ordered.