R v Hartley [2007] NZCA 31; [2007] 3 NZLR 299; (2007) 23 CRNZ 420 (1 March 2007)

Last Updated: 17 January 2018

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND

CA154/06
[2007] NZCA 31

THE QUEEN



v



RIO JADE HARTLEY

Hearing: 15 November 2006

Court: William Young P, Robertson and Ellen France JJ

Counsel: J G Rowan QC and E J Forster for Appellant
M D Downs and E V Lamont-Messer for Crown

Judgment: 1 March 2007 at 9.30 am

JUDGMENT OF THE COURT

1. The conviction for manslaughter is quashed and in its place a conviction for common assault is entered. The appeals against conviction in relation to the other counts are dismissed.
2. The sentence of 11 years imprisonment with a minimum period of seven years is quashed and a sentence of nine years imprisonment with a minimum period of five years is substituted. A sentence of nine months imprisonment is imposed on the common assault charge. All other sentences imposed in the High Court are unchanged. All sentences are to be served concurrently.

C The answer to the case stated is no.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] Late in the evening of 5 November 2004 and in the early hours of the morning of 6 November 2004, the appellant and three other young men were driving around Wanganui. Over a three to four hour period on three separate occasions, the four men set upon and assaulted a number of other men. In the course of the second of the assaults, one of the other men in the group, Rawiri Hatata, pulled out a knife and stabbed the victim, Jeremy Frew, who later died.
[2] The appellant was found guilty after trial as a party under s 66(1) of the Crimes Act 1961 of the manslaughter of Mr Frew. He appeals against his conviction. In addition, a case was stated under s 380 of the Crimes Act having been reserved during the trial by Miller J.

Factual background

[3] The first incident by the group including the appellant took place around 11 pm on 5 November and involved kicking and punching two victims. In the second episode, the appellant approached the victim’s car and then punched him through the window. Mr Hatata then went up to the window. He pushed the appellant away, then pulled out a knife and stabbed the victim. In the third altercation, another man (Brian Kerrigan) was attacked and suffered a knife wound to his back.
[4] In the course of the police investigation, all the accused, apart from the appellant, made lengthy video interviews. In the course of those interviews, various references were made to the appellant. The references included attributing a possible motive to the appellant for his attack on the third victim.
[5] Before trial, the appellant sought either severance or editing of references to him from the video interviews of his co-accused. In a decision delivered on 4 November 2005, Gendall J declined the application for severance and for editing.
[6] A further application for severance and/or editing was made during the trial. Again, this was unsuccessful and the co-accused’s statements to the police were admitted at trial subject to proper directions as to how they could be used.
[7] The Crown accepted at trial that there was no evidence that the appellant knew that Mr Hatata was armed with a knife before Mr Frew was stabbed. The Crown case was that the attack on Mr Frew was planned and that the appellant was the instigator of this attack.
[8] In the course of the trial, Miller J dismissed an application by the appellant for a discharge under s 347 of the Crimes Act. In that ruling, the Judge concluded that the Crown was not required to prove that the appellant knew of the knife and/or Mr Hatata’s intention to use it. Miller J directed the jury on this basis.
[9] Mr Hatata was found guilty of the murder of Mr Frew and was sentenced to life imprisonment with a minimum period of ten years. Shae Brider, another of the group, and the appellant were each found guilty (as s 66(1) parties) of manslaughter. Mr Brider was sentenced to seven and a half years imprisonment with a minimum period of one half of that term. The fourth man in the group, Jordan Aranui, was found not guilty of manslaughter. He was sentenced to a term of four years imprisonment. The appellant was also found guilty of other charges relating to the other two incidents.
[10] The appellant was sentenced to an effective term of 11 years imprisonment with a minimum period of imprisonment of seven years. That sentence was comprised of concurrent terms of imprisonment as follows:

(a) Causing grievous bodily harm with intent to cause grievous bodily harm (the third incident) – 11 years with a minimum period of imprisonment of seven years;

(b) Manslaughter (the second incident) – eight years;
(c) Causing grievous bodily harm with intent to injure (the first incident) – four years; and
(d) Causing injury with intent to injure (the first incident) – three years.
[11] The case stated is in these terms:

[W]as I correct to instruct the jury that the Crown had to prove of a party to manslaughter under s 66(1)(b)-(d) that he took some positive step to assist or encourage the principal in an assault of a kind that was intended to cause some physical harm that was more than trivial or transitory, knowing that such an assault was to take place and intending that what he did should assist or encourage the principal in that assault? More particularly, was I correct to instruct the jury that the Crown need not show that the party knew of the presence of a weapon or foresaw a risk that death might result?

Issues on appeal

[12] There are two main issues on appeal:

(a) Was the Judge correct to instruct the jury that the Crown need not show that the appellant knew of the presence of a weapon?

(b) Did the refusal to grant severance and/or to edit references to the appellant out of the co-offenders’ statements give rise to a miscarriage of justice?
[13] There is also an issue, although not particularly pressed, about the adequacy of the directions given about the need for the appellant to have communicated to Mr Hatata that he was withdrawing from the enterprise.
[14] Finally, if the manslaughter conviction is quashed, there is an issue about whether a retrial is necessary and as to any consequential effect on sentence.

Knowledge of the weapon

[15] Section 66(1)(b)-(d) of the Crimes Act provides that every one is a party to and guilty of an offence who:

(b) does or omits an act for the purpose of aiding any person to commit the offence; or

(c) abets any person in the commission of the offence; or

(d) incites, counsels, or procures any person to commit the offence.

[16] Section 66(1) may be contrasted with s 66(2) which makes persons a party where two or more persons “form a common intention to prosecute any unlawful purpose, and to assist each other therein”. In s 66(2) the persons in the group are parties to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[17] The Crown case here is that manslaughter is killing by an unlawful act. Assault is an unlawful act, and therefore in assisting in the assault of Mr Frew, the appellant is guilty of manslaughter. The Crown says that approach is consistent with the New Zealand authorities and is an appropriate outcome in policy terms. Mr Downs for the Crown further submitted that liability for manslaughter reflects the fact that the appellant and his co-offenders agreed to undertake a series of violent group assaults where harm to the victims was clearly intended. As the Crown’s written submissions put it, “serious violence was the group’s enterprise” and conviction for manslaughter reflects the appellant’s role in that enterprise.
[18] In our view, the Crown’s position is too broadly stated. Assuming person A does not know that another in his or her group, B, has a knife, it cannot be the case that in any situation where A is a party to an assault in the course of which B produces a knife and kills someone that liability for manslaughter as a s 66(1) party for A will follow. At best, on the Crown’s analysis, there must be questions of degree.
[19] Once it is accepted, as it must be, that there are more extreme circumstances in which liability for manslaughter is inappropriate the question is how those extreme cases can be differentiated from cases like the present. We consider that such a distinction is not possible where, under s 66(1), the Crown case is based on a killing by a weapon where the appellant, the alleged party, had no knowledge of the weapon or appreciation that the weapon might be used and assisted only in an assault by punching or hitting with his hands in some way. The reference to knowledge of the knife is, in a sense, a convenient proxy for the need for the Crown to prove under s 66(1) that the appellant aided or abetted etc in respect of offending of the type which actually occurred.
[20] Miller J accepted at [32] there was some normative force in the argument advanced on behalf of the appellant that the appellant should not be liable for manslaughter where “death resulted from an act that differed in kind from that which he contemplated.” However, the Judge took the view at [33], advanced by the Crown on appeal, that the authorities established that all that was required of a party to manslaughter under s 66(1)(b)-(d) was that he or she “should intentionally assist or encourage the principal in an assault of a kind that is intended to cause some physical harm, knowing that such an assault is to take place.” Miller J put it this way at [33]-[34]:

[33] However, the cases cited above – particularly Tomkins, Renata and Rapira – establish in my view that the essential facts of the offence of manslaughter comprise an unlawful act that causes death. There is no requirement that the principal should foresee a risk of death. Where the unlawful act takes the form of an assault, it must be one that is intended to cause some physical harm, even though minor. All that is required of a party to manslaughter under s 66(1)(b)-(d) is that he or she should intentionally assist or encourage the principal in an assault of a kind that is intended to cause some physical harm, knowing that such an assault is to take place. The Crown need not show that the party knew the precise acts that were to be done, or the manner in which they were to be carried out. It must show that the assault caused death in fact, but it need not show that the party foresaw a risk that it would do so. Foresight of such a risk is precisely what Mr Rowan would have the Crown prove in this case.

[34] I conclude that the Crown is not required to prove in this case that those charged as parties knew of the knife and/or [Mr] Hatata’s intention to use it and so appreciated that death was a real risk. I propose to direct the jury accordingly.

[21] The authorities relied on by the Crown are not, however, fully on point and we consider the authorities support the three propositions we set out below.
[22] First, a defendant who is a party under s 66(1) to an assault of the type which resulted in death is guilty of manslaughter. R v Renata [1992] 2 NZLR 346 (CA) supports that view. Like the present, Renata was a case brought under s 66(1) of the Crimes Act. There the Crown alleged that a collective assault had taken place in a carpark. The victim died following kicks or blows. His death was due to the rupture of a cyst. It was not clear which of the accused had inflicted the fatal kick or blow.
[23] The Crown challenged the not guilty verdicts on the manslaughter count. This Court said at 349:

Under s 66(1) in a case such as the present guilt does not turn on contemplation of a possible consequence. It turns on actual agreement to commit or knowing participation in a particular criminal act. What the Crown was alleging here was that the accused were all in fact parties to the unlawful act of assault, in one or other of the ways specified in s 66(1). If the jury were satisfied of that beyond reasonable doubt, no further issue of contemplation or foresight arose.

Clearly, where one person unlawfully assaults another by a dangerous application of force, the assailant is guilty of manslaughter if death is caused even in a most unexpected way. Unlikelihood of the result is relevant only to penalty, although it may be of great significance in that regard. No different principle applies to a person who is guilty of the assault as a secondary party under s 66(1)(b), (c) or (d). In all such cases where manslaughter is charged, “the offence” within the meaning of the subsection is culpable homicide being the causing of death by an unlawful act; and if the unlawful act is of a kind that attracts the operation of the law of manslaughter it matters not that the death was neither intended nor foreseen.

As to what kind of “unlawful act” is sufficient, a question arising under s 160(2)(a) of the Crimes Act, reference may be made to the judgment of this Court delivered by Bisson J in R v Myatt [1991] 1 NZLR 674, 680. That judgment is not precisely in point, since it is concerned with the purposes of regulating legislation which may make an act unlawful within s 160(2)(a), but it does indicate the idea reflected in para (a). The expression “unlawful act” in the context of the law of manslaughter is not one upon which the present case calls for any attempt at exhaustive definition; but an unlawful assault intended to cause some, even though minor, physical harm or hurt to the victim is undoubtedly within it.

[24] Although the fact death resulted in Renata was unexpected, the death was the result of an act (kicking or punching) within the contemplation of the parties. That is in contrast with the present case where the act contemplated was punching or hitting with the fists in some way but not stabbing.
[25] That sort of distinction also underlies the direction in R v Kimura (1992) 9 CRNZ 115 (CA) that a party under s 66(1) to an aggravated robbery had to be aware of the “essential matters” constituting the offence, i.e. at 117:

[T]hat he contemplated a burglary by the principal party and that he would have a knife with him while inside the premises.

[26] The second proposition is that, in a case under s 66(2) where the defendant knew that a weapon (or weapons) were on hand and might be used and that is the weapon that causes death, a verdict of manslaughter will be open. This will be so even if the weapons were on hand only to threaten.
[27] Support for this view is found in R v Tomkins [1985] 2 NZLR 253 (CA) which involved counts under both s 66(1) and s 66(2). The Court observed at 254 that there was:

[N]o lack of previous cases recognising or consistent with the view that if a defendant joins in a criminal enterprise intending that knives will be used, albeit only to threaten, he is or may be guilty of manslaughter if another party to the enterprise uses a knife to kill with murderous intent. (Emphasis added.)

[28] In that case, three young men were involved in an incident which led to the death of a taxi driver. The case in relation to Mr Tomkins was based primarily on his police statement in the course of which he admitted they planned to rob the driver and armed themselves with knives and a barbecue fork. One of the other two men stabbed the victim whilst Mr Tomkins stood by.
[29] This Court accepted a manslaughter verdict was open in relation to Mr Tomkins although he had said the weapons were taken to scare, not to kill. Plainly, though, Mr Tomkins knew of the weapons.
[30] In R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA) this Court said at [31] that a defendant may be guilty of manslaughter under s 66(2) if he or she knows that “the infliction of physical harm which is more than trivial or transitory is a probable consequence of prosecution of the common purpose.” The appellants in that case were in a group armed with a baseball bat which set out to rob a pizza delivery driver.
[31] In Rapira, the Crown case was put on the basis that the common purpose included the use of a baseball bat to silence or incapacitate the delivery driver to assist the robbery. This was not one of those cases where the principal stepped outside the common design in a way “totally unforeseen” (at [37]) so as to prevent liability for manslaughter.
[32] The third proposition is that a defendant who is party to an assault under s 66(1) which was not of the type which resulted in death is not guilty of manslaughter unless aware (for the purposes of s 66(2)) that the death of the victim was a probable outcome. This is the proposition determinative of the present appeal. In our view, this proposition is consistent with the New Zealand cases in that those authorities generally proceed on the footing that the party knew of the weapon or that such knowledge was necessary. The discussion in Adams at CA167.23(1)-(3) accords with our approach.
[33] Of the cases to which we were referred, the two which are more equivocal on this issue are R v Hamilton [1985] 2 NZLR 245 (CA) and R v Kopelani CA79/05 23 November 2005.
[34] In Hamilton, Mr Hamilton was the front seat passenger in a car driven by Mr Wehi. The car drew up beside a stationary car. Mr Hamilton spoke to the victim and then shot him. Both Messrs Hamilton and Wehi were charged with murder, Mr Wehi as a party under either s 66(1) or s 66(2).
[35] Mr Wehi’s appeal succeeded on the basis manslaughter was not left to the jury but should have been. Two bases for manslaughter were identified at 252:

First, it was possible that the jury might not be prepared to go further against [Mr] Wehi than finding a common intention to frighten [Mr] Little or take the patch by force less than shooting. ... Secondly, if accepted Detective Mickell’s evidence of oral statements by [Mr] Wehi indicated that at some stage before the shooting [Mr] Wehi knew that [Mr] Hamilton had a loaded gun. By the same token that evidence raised a possibility that it was totally unforeseen by [Mr] Wehi that [Mr] Hamilton would be so audacious as to shoot [Mr] Little in broad daylight with an innocent eyewitness sitting at his victim’s side.

[36] On the first possible route, it is a little unclear what is envisaged by frightening and that lack of clarity arguably supports the Crown case here.
[37] In terms of Kopelani, Mr Kopelani was successful in his appeal against conviction for murder and for attempted murder. Again, it was said manslaughter should have been left to the jury. The victim in that case was stabbed to death. Mr Kopelani said he was not aware of the presence of a weapon, thinking only a manual assault would be administered.
[38] Williams J, delivering the judgment of this Court, said at [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. (Emphasis added.)

[39] The case does not fit neatly with the earlier authorities. It is not, however, directly on point. It also appears that the starting point was manslaughter rather than murder not whether there was a homicide at all.
[40] Our conclusion is that in order to found a conviction for manslaughter in this class of case, it was necessary for the Crown to prove that the appellant was aiding, abetting etc in terms of s 66(1) in respect of offending of the type which actually occurred. That approach deals best with the problems inherent in the width of the Crown’s argument; with the thrust of the New Zealand authorities; and as well best meets the underlying policy considerations.
[41] Our approach is broadly consistent with that taken in the United Kingdom (see for example, R v Anderson and Morris [1966] 2 QB 110 (CA); Chan WingSui v R [1985] AC 168 (PC) at 175F-H; and AttorneyGeneral’s Reference (No 3 of 2004) [2005] EWCA Crim 1882 (13 July 2005)).
[42] We acknowledge that exact comparisons with the English position are not possible because the English cases arise in the context of the common law doctrine relating to joint enterprises. There are also differences in terms of the definitions of culpable homicide. Nonetheless, the English authorities do place importance on what we can broadly describe as “knowledge of a weapon” or appreciation of its likely use.
[43] The position in Western Australia and in Queensland, two of the “Code” states, appears similar. (See, for example, Borg v R [1972] WAR 194 and R v Lowrie and Ross [1999] QCA 305; [2000] 2 Qd R 529.) In both of these states, the statutory framework reflects that in s 66 (ss 7 and 8 of the Criminal Codes 1913 (WA) and 1899 (Qld)).
[44] In terms of the policy considerations, there are various ways in which the individuals in a group such as this can be held responsible in a manner that is more consistent with their culpability while not downplaying the problems of dealing with group violence of this nature. Section 66(2) is one possible avenue and then there will be other, lesser, charges.
[45] The Crown submits that the English approach, in particular, has led to some distinctions which make matters both unduly complex and allow individuals to escape appropriate liability for their level of culpability. Mr Downs for the Crown is particularly critical of English cases which differentiate between the use of a knife and use of other weapons where the common plan involved the other weapons. That criticism is relevant to our conception that the Crown must prove the defendant aided or abetted under s 66(1) in respect of offending “of the type” which actually occurred.
[46] “Type” is the phraseology used in Chan Wing-Siu. Discussing the difference between the two forms of party liability, Sir Robin Cooke (as he was then) noted at 175:

In the typical case in that class [aiding and abetting], the same or the same type of offence is actually intended by all the parties acting in concert ... [This] case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.

[47] The distinctions made in the English cases are illustrated by, first, R v Powell; R v English [1999] 1AC 1 (PC). Their Lordships allowed an appeal by Mr English. Mr English and his co-offender attacked the victim with posts but the co-offender then drew a knife and stabbed the victim to death. This was seen by their Lordships as potentially a complete departure from the common plan which would mean he was not liable for murder or manslaughter. The jury should have been directed on the basis they may have decided the co-offender’s use of the knife was something Mr English did not foresee.
[48] Similarly, in R v Uddin [1998] EWCA Crim 999; [1999] QB 431 a group of men, some of whom were armed with bars or poles, attacked another. One of the group produced a knife and stabbed the victim fatally. There was no evidence that the majority of the group knew one of them had a knife. Three of the defendants were acquitted of murder but convicted of manslaughter. The appellant and the man who inflicted the blow were convicted of murder. The appellant successfully appealed.
[49] Beldam LJ described the applicable principles at 441 as follows:

(i) Where several persons join to attack a victim in circumstances which show that they intend to inflict serious harm and as a result of the attack the victim sustains fatal injury, they are jointly liable for murder; but if such injury inflicted with that intent is shown to have been caused solely by the actions of one participant of a type entirely different from actions which the others foresaw as part of the attack, only that participant is guilty of murder.

[50] Beldam LJ considered at 441 that in deciding whether the actions were of a different type, the use of a weapon was important:

(ii) ... If the character of the weapon, e.g. its propensity to cause death, is different from any weapon used or contemplated by the others and if it is used with a specific intent to kill, the others are not responsible for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon.

[51] Beldam LJ continued at 441:

(iv) If the jury conclude that the death of the victim was caused by the actions of one participant which can be said to be of a completely different type to those contemplated by the others, they are not to be regarded as parties to the death whether it amounts to murder or manslaughter. They may nevertheless be guilty of offences of wounding or inflicting grievous bodily harm with intent which they individually commit.

(v) If in the course of the concerted attack a weapon is produced by one of the participants and the others knowing that he has it in circumstances where he may use it in the course of the attack participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound.

(vi) In a case in which after a concerted attack it is proved that the victim died as a result of a wound with a lethal weapon, e.g. a stab wound, but the evidence does not establish which of the participants used the weapon, then if its use was foreseen by the participants in the attack they will all be guilty of murder notwithstanding that the particular participant who administered the fatal blow cannot be identified: see Reg. v Powell; Reg. v English [1999] 1 AC 1. ...

(vii) The mere fact that by attacking the victim together each of them had the intention to inflict serious harm on the victim is insufficient to make them responsible for the death of the victim caused by the use of a lethal weapon used by one of the participants with the same or shared intention.

[52] We agree that some of these distinctions are rather fine. Inevitably, there will be questions of fact and degree requiring a factual determination by the jury (see: Glanville Williams Criminal Law, The General Part (2ed 1961) at [133]). However, while there will of course be cases where it is hard to draw the line that fact does not in our view mandate imposing liability for manslaughter on the appellant in this case.
[53] On the facts in this case, there was not a foundation for a manslaughter verdict as the assault which occurred was completely different from that which the appellant was assisting.
[54] As we have said, s 66(2) is available to deal with those cases where death is the probable consequence of the common enterprise whether specifically intended or not. Section 66(2) may be utilised, for example, in the situation of a group attack where the members of the group all use weapons but of different types. In the New Zealand context, that might produce a different outcome in the Uddin situation. If the Crown chooses not to pursue s 66(2), s 66(1) requires that the Crown establish that what the secondary party was aiding, abetting, procuring, counselling or inciting caused death and not some quite different act or omission. There are various ways of conceptualising how our conclusion is reached. For example, it is possible to view the use of the knife as a “supervening event”. Another way to view the matter is to say that there must be some more direct link between the act causing the death and what it was that the secondary party assisted or aided the principal to do. In the final analysis, the definition of assault is so all-embracing that where liability under s 66(2) is not asserted, s 66(1) must be applied to capture the reality of what the party was said to be involved in.
[55] Ultimately, adapting a theme advanced by Professor Simester in a slightly different context, we consider that to require knowledge of the weapon in this case, “better reconciles the conflicting principles of culpability and criminalisation that underpin the criminal law”: “The Mental Element in Complicity” (2006) 122 LQR 578 at 578.

Severence/editing

[56] The appellant argues in relation to all of the counts that there should have been either editing of the coaccuseds’ statements or the appellant’s trial should have been severed. The prejudice to the appellant arising from the failure to take either step is such as to give rise, the appellant says, to a miscarriage of justice.
[57] Taking first the issue of editing, the appellant submits the police became aware that he was exercising his right to silence but went on to garner information about him in the context of their interviews of the co-accused.
[58] When this matter was considered pre-trial, Gendall J indicated some editing might need to be made but only where matters were irrelevant to the maker of the statement or to that person’s defence.
[59] There was no editing.
[60] Miller J’s approach to editing was essentially to say that if the statements made were relevant to the defence of the maker, they could not be excised. (That is the approach taken in Lobban v R [1995] 1 WLR 877 (PC).) Miller J said that a statement may be irrelevant but would still not be edited where removal would omit the context.
[61] The video interviews are lengthy (11 hours in total) and there are numerous references to the appellant. To illustrate concerns raised by the appellant Mr Forster who argued this part of the appeal, pointed to an exchange from the interview of Mr Hatata where the detective described what another accused said they saw the appellant doing. Similarly, Mr Brider in his interview said that the victim, Mr Frew, “had done something [the appellant] didn’t like”.
[62] We see no error in the approach taken by Miller J. If the material is irrelevant it is inadmissible. If it is relevant, then it should not be edited out for the sake of a co-accused. Here, the argument about editing overlaps with that relating to severance. In this case, the matter could properly be dealt with by appropriate directions and we have no doubt that the directions given by Miller J were sufficient to deal with the matter.
[63] The Judge in summing up directed the jury to assess each count separately in relation to each accused and drew attention, in summarising the respective cases, to the evidence relevant to each count. In dealing with the video interviews, the Judge repeated directions he had given about the use of those statements in the course of trial because, he said, “it is of absolutely fundamental importance”. Miller J emphasised the evidence of the interviews was only evidence against the maker, and not against other accused. He then went on and explained the rationale for this (fairness) and spelt out the particular importance of applying the directions on this topic to the appellant. Finally, Miller J explained what evidence was inadmissible as against the appellant.
[64] The jury would not have been in doubt as to the principles they were to apply. This is not a case where the appellant can show some feature that “clearly outweighs the ordinary approach [a joint trial] and the basis upon which it rests”: R v Fenton CA223/00 14 September 2000 at [26]).

Communication of withdrawal

[65] The case for the appellant was that if he was a party, which he denied, then he withdrew before Mr Frew was stabbed. He pointed to eyewitness evidence that he left Mr Frew’s car and went to a bonfire at the beach.
[66] Miller J told the jury the onus of proving the appellant did not withdraw was on the Crown to establish beyond reasonable doubt. The Judge said that in order to withdraw there were three elements. First, withdrawal must occur before the crime was committed. Second, he said at [50] “it requires communication to the principal in this case [Mr] Hatata of withdrawal”. The communication could take the form of words or action but Miller J told the jury at [50] that the communication “must be clear”. The third step was that the appellant took reasonable steps to undo the effect of his earlier assistance or encouragement. Miller J observed that, in some cases, withdrawal “may require nothing more than that the party walk away from a group ...”.
[67] The appellant relies on R v O’Flaherty [2004] 2 Cr App R 20 at [61] to [63] and R v Mitchell and King [1998] EWCA Crim 2444; (1998) 163 JP 75 for the proposition that communication of withdrawal is not necessary when the violence is spontaneous. The appellant says this case similarly involves spontaneous violence.
[68] This Court in R v Ngawaka CA111/04 6 October 2004 at [14] accepted the conditions for withdrawal in R v Pink [2001] NZHC 327; [2001] 2 NZLR 860 at [22]:

• First, there must in fact be a notice of withdrawal, whether by words or actions.
• Secondly, that withdrawal must be unequivocal.
• Thirdly, that withdrawal must be communicated to the principal offenders. There is some debate as to whether the communication must be to all the principal offenders, but here all were told.
• Fourthly, the withdrawal may only be effected by taking all reasonable steps to undo the effect of the party’s previous actions.

[69] This case is not the appropriate vehicle for re-considering that approach, especially as this aspect is effectively irrelevant given our approach. In any event, we do not see this case as on all fours factually with O’Flaherty and Mitchell and King. In O’Flaherty, for example, the violence was not planned and just erupted amongst various groups in the street. As noted in Adams at CA 66.14(1) the rationale behind the O’Flaherty approach is that in those types of cases “requiring communication would seem neither practicable nor reasonable...”. Here, on the Crown case, the appellant was the initiator of the planned attack on Mr Frew. In that context, there was no reason to depart from the orthodox approach as to the need for notice. There is no merit in this ground of the appeal.

Conclusion on the conviction for manslaughter

[70] It follows from our conclusion as to the effect of the absence of knowledge of the knife that a conviction for manslaughter was not open. Further, it follows that the answer to the question of law is that the Judge was not correct to instruct the jury that the Crown need not show that the party knew of the presence of a weapon.

Effect of quashing conviction

[71] We sought further submissions as to what should happen if the manslaughter conviction was quashed.
[72] The Crown position is that if the manslaughter conviction is quashed, a conviction for a lesser charge, namely, assault with intent to injure contrary to s 193 of the Crimes Act should be substituted. A retrial is not sought. The Crown accepts a sentence reduction would follow but submits any reduction should be minimal.
[73] The appellant argues that as the unlawful act necessary for manslaughter was that of Mr Hatata, an acquittal should follow. The appellant would, however, consent to a conviction for common assault under the Crimes Act being entered and a review of sentence.
[74] Given the approach taken by the appellant and the Crown, we do not intend to order a retrial. Instead, we will substitute for the verdict found by the jury a verdict of guilty of a lesser charge. The issue is whether that charge should be the more serious assault, as the Crown submits, or common assault.
[75] The Crown says the evidence shows that the appellant repeatedly hit Mr Frew about the head. The nature of that assault and the appellant’s later participation in group violence leading to bodily harm shows an intention to injure, Mr Downs argues. It is also argued that the verdicts on the other counts reflect findings of a specific intent to inflict bodily harm.
[76] The appellant’s submission relies on evidence that the appellant was acting alone in relation to the assault on Mr Frew. Hence, Mr Rowan submits that the Crown argument of an intention to injure based on the appellant’s prior or later participation in violence is weakened.
[77] We do not consider it would be appropriate for the Court on this appeal to infer intention. However, given a retrial is not sought and given the appellant’s approach, we have concluded that the appropriate course is to enter a conviction for common assault under s 196 of the Crimes Act.
[78] As to sentence, it is accepted a reduction in sentence must follow. The issue is as to the extent of the reduction although there is not a great deal of difference between the parties on this.
[79] In sentencing the appellant, Miller J took the lead offence to be the attack on Mr Kerrigan i.e. the third incident. That reflected the appellant’s leading role in that incident and the fact he knew that Mr Hatata would join him.
[80] In terms of the manslaughter charge, Miller J sentenced both the appellant and Mr Brider on the basis that they did not know of the knife or of Mr Hatata’s murderous intent. The Judge said at [35] they were parties to “what they knew would be a dangerous assault on Mr Frew involving fists and perhaps feet.” Miller J emphasised that Mr Hartley had initiated the attack and had incited Mr Hatata as well as assaulting Mr Frew himself. The Judge at [35] described the incident as an “unprovoked group attack on a single and defenceless person”. An eight year starting point was seen as appropriate for the appellant on this charge.
[81] The Crown submission is that any reduction in sentence should result in a reduction of not more than 18 months with a proportionate reduction in the minimum period. The appellant says that the end sentence of 11 years should be reduced to approximately nine years with a minimum period of about five years. That would reflect Mr Hartley’s lesser overall involvement and the change to the sequence of events.
[82] We consider that two years is an appropriate reduction in sentence with a commensurate reduction in the minimum period to five years imprisonment. As Mr Downs emphasises an eight year starting point for the lead offence, on its own, was adopted and is not challenged. As the Crown also points out, quashing the manslaughter conviction does not affect the findings in relation to the seriousness of the offending in the third incident. Nor would that step affect the need for the sentence to reflect the other charges. The reduction does however have to reflect the obvious difference between manslaughter and common assault.
[83] The Crown wishes to preserve its appeal rights and that is achieved by the Court providing an answer to the case stated. Mr Rowan is concerned at any further appeal being confined but there is nothing this Court can do in that respect.

Result

[84] For these reasons, the conviction for manslaughter is quashed and in its place a conviction for common assault is entered under s 386(2) of the Crimes Act. The sentence of 11 years imprisonment with a minimum period of seven years on the charge of causing grievous bodily harm with intent to cause grievous bodily harm arising from the third incident was treated as the lead sentence and all other sentences were concurrent. The quashing of the manslaughter conviction now alters the overall culpability.
[85] The sentence of 11 years imprisonment with a minimum period of seven years is quashed and on that charge the appellant is sentenced to nine years imprisonment with a minimum period of five years imprisonment under s 386(1) of the Crimes Act and Collie v R [1997] 3 NZLR 653 at 664-665. A sentence of nine months imprisonment is imposed on the common assault charge. All other sentences imposed in the High Court are unchanged. All sentences are to be served concurrently. The answer to the case stated is no. The appeals against conviction in relation to the other counts based on the approach to editing and severance are dismissed.

Solicitors:
Crown Law Office, Wellington