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The Queen v Hira and McKinnon [2009] NZCA 144 (23 April 2009)

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The Queen v Hira and McKinnon [2009] NZCA 144 (23 April 2009)

Last Updated: 30 April 2009


IN THE COURT OF APPEAL OF NEW ZEALAND

CA402/2008CA431/2008

[2009] NZCA 144

THE QUEEN

v

RONALD DEAN HIRABWANA NEHU MCKINNON

Hearing: 24 February 2009


Court: William Young P, Chisholm and Heath JJ


Counsel: P S Coles for Mr Hira
T C Thackery for Mr McKinnon
S J Mount for Crown


Judgment: 23 April 2009 at 11.30 am


JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.


____________________________________________________________________


REASONS OF THE COURT


(Given by William Young P)

Introduction

[1] In the early hours of 2 October 2006, seven shots were fired from a rifle into the Palmerston North home of home of Victor “Troy” Lafaiki. His girlfriend, Latoya Boyd, was wounded. Sometime later seven shots were fired from the same rifle into the home of Mr Albert Tuimana. No one was harmed despite Mr Tuimana, his partner and two young children being asleep in the house at the time. The Crown case was that the men responsible for these incidents included the two appellants, Bwana Nehu McKinnon and Ronald Dean Hira.
[2] Both men had, according to the Crown, spent much of the night of 1 and 2 October 2006 in the company of Cheryl Taylor (who was Mr McKinnon’s former girlfriend) and her friend Jamie Roundtree. In the aftermath of the shootings, Messrs McKinnon and Hira and Ms Taylor and Ms Roundtree left Palmerston North and went to live in Pahiatua. On 13 October 2006, the firearm used in the shootings was discovered in the house in which they were staying.
[3] Following a trial before Judge Dawson and a jury in the District Court at Palmerston North at which Ms Taylor and Ms Roundtree gave evidence and their out of court statements were before the jury, both men were found guilty of wounding Ms Boyd with intent to cause grievous bodily harm and (in relation to the second incident) discharging a firearm with reckless disregard for safety. For this offending along with a charge associated with possession of the rifle at Pahiatua, Mr McKinnon was subsequently sentenced to imprisonment for 11 years. Mr Hira, who had already served a short sentence of imprisonment for possession of the rifle, was sentenced to imprisonment for nine years and three months. In both cases the Judge imposed a minimum period of imprisonment of half the nominal sentence.
[4] They now appeal against conviction and Mr Hira also appeals against sentence.
[5] We propose to discuss the case under the following headings:

Factual background

[6] There had been a history of bad blood between Mr McKinnon and Messrs Lafaiki and Tuimana. Messrs Lafaiki and Tuimana are friends. The underlying disputes between Mr McKinnon and Messrs Lafaiki and Tuimana did not involve Mr Hira. However Mr Hira has a family connection with Mr McKinnon (who is his cousin).
[7] The Crown case was that on the night of 1 October 2006, Messrs McKinnon and Hira were together at Ms Taylor’s house. Also present at the house were Ms Taylor and Ms Roundtree and other people.
[8] Both women made statements to the police in February 2007 (in the case of Ms Roundtree, two statements), signed depositions statements and gave oral evidence at the depositions hearing in July 2007. All of this material implicated the appellants.
[9] At trial Ms Taylor gave contextual evidence as to the background to the events of 1 and 2 October 2006, including difficulties which she and Mr McKinnon had had with Messrs Lafaiki and Tuimana (which extended to being threatened with a firearm). But when she got to the events of the night of 1 October 2006, she claimed to have no memory. Ms Roundtree also claimed at trial to have no memory of what happened that night. Both were declared hostile and cross-examined by the prosecutor, in the case of Ms Taylor, on her police statement and oral evidence at the preliminary hearing and, in the case of Ms Roundtree, on her police statement, depositions statement and oral evidence at the preliminary hearing.
[10] There are differences in detail and nuance between the accounts given by Ms Taylor and Ms Roundtree to the police in February 2007 which, with one exception, we need not address. What follows is something of an amalgam of what they said. Broadly, the statements indicated that they had both been at Ms Taylor’s home on the evening of 1 October 2006 and that the appellants had been there. Other people were also present. There were discussions about a problem with Messrs Lafaiki and Tuimana and the need to sort it out. Mr McKinnon left the house, got a gun and returned with it wrapped in a blanket. There was a discussion amongst the men in a bedroom. Shortly afterwards Mr McKinnon emerged from his bedroom carrying the gun without the blanket, said “let’s go” and left the house with Mr Hira and others who had been present at the house. They drove off in Ms Taylor’s maroon coloured Mazda car.
[11] At this point in the narrative, there was some divergence between the accounts recorded in the police statements. In her statement, Ms Taylor said that a short time after the men left the house she and Ms Roundtree left in another vehicle and went to the house of her mother (Mrs Taylor). Once there she told her mother to listen to the police scanner because she knew that the appellants and the others were going to meet Messrs Lafaiki and Tuimana.
[12] By comparison in Ms Roundtree’s statement she said that approximately half an hour after the men left the address, they returned and that one of the men was carrying the gun. They then went into a bedroom for 15 minutes, came out and walked back outside to the car. It was only after the men left this second time that Ms Roundtree said that she and Ms Taylor went to Mrs Taylor’s house.
[13] When the women returned home, Mr McKinnon was already back and he and Ms Taylor had an argument. The two women then went into a bedroom. Both said that someone came into the room with a rifle and fired a shot into the floor as a warning to Mr McKinnon. Later examination by ESR confirmed that a shot had been fired through the floorboards and the forensic evidence “strongly supported” the proposition that the ammunition used was the same as that used in the shootings.
[14] Ms Roundtree told the police that later the other men, including Mr Hira, left. After about half an hour Ms Roundtree went back into the lounge where Mr McKinnon told her to make sure the girls were not sleeping in the bunks and to stay away from the windows. He told her that this was because “they had had hit a family home and so they had set the rules”. He also said “if they were to retaliate, they would hit his family home”.
[15] In her evidence at trial Ms Taylor, under cross-examination from the prosecutor, confirmed that:

It is fair to say that in cross-examination by defence counsel, Ms Taylor sought to distance herself, as far as practicable, from what she had told the police. It also became clear when Ms Taylor was cross-examined by defence counsel that after the firearm was found in Pahiatua, she had some concerns about being charged in relation to the shootings. In this context, the visit to her mother’s place served as an alibi.

[16] Ms Roundtree was sufficiently unguarded on occasion to make remarks which, at least on the transcript, arguably go beyond mere acknowledgement of what the statement records. We can illustrate this with the following extract from the cross-examination:
  1. Did you go there [ie to Mrs Taylor’s place] in another car belonging to Cheryl?

A Yep that is what it says.

Q You’d remember that car, wouldn’t you?

A Yeah I am pretty sure I know the one.

Q Well you put that statement down and you tell us about that car?

A I dunno, it’s a dark coloured station wagon, thing.

Q That is from your memory isn’t it, rather than the statement.

A Yep.

On the whole, however, she stuck staunchly to the approach of claiming to remember nothing of the critical events but at the same time conceding that the propositions put to her by the prosecutor accorded with what she was recorded as having said.

[17] Ms Taylor’s mother, Marlene Taylor, in her evidence confirmed that her daughter and Ms Roundtree had visited her in the early hours of 2 October 2006 and that her daughter had told her to listen to the police scanner because she was worried that “the boys had gone for a meeting with Troy”. As a result of turning on the police scanner, Mrs Taylor learnt about the shootings. In her evidence, Mrs Taylor said that just after Ms Taylor had left she heard about the shootings over the scanner.
[18] A possible anomaly as to this timing is that at 2.35am on 2 October, a text message was sent from a cellphone associated with Mr McKinnon to Mr Andre Martin (who in fact is a boyfriend of Ms Taylor) saying, “u ova scana as susspect”. It is unclear who sent this text message.
[19] Following the shootings both appellants moved to Pahiatua along with Ms Taylor and Ms Roundtree. The police executed a search warrant at their Pahiatua address on 13 October 2006 and located the rifle which had been used in the shootings. Ms Taylor was charged in relation to the rifle and a pistol, which was found sometime later. This resulted in discussions between Mrs Taylor and Mr McKinnon. According to Mrs Taylor, Mr McKinnon made, in the course of these discussions, admissions which could have been confined to the firearms (which at trial was how she construed them) but which she, at the time, took to encompass the shootings. In any event, the upshot of the discussions was that Mr McKinnon gave himself up to the police.
[20] There were independent witnesses in relation to each of the attacks.
[21] In the case of the incident at the home of Mr Lafaiki, a neighbour of Mr Lafaiki, Mr Matthew Barnes, was awoken by the gunshots. He went to his bedroom window and saw a vehicle which he described as looking like a dark coloured two door Honda Prelude driving away from the scene with all lights off.
[22] Similarly, when shots were fired at Mr Tuimana’s house, a neighbour, Mr Gregory Smillie, looked outside. He observed a person getting into the passenger side of a car. He said that the car “looked like a dark coloured Prelude from the back end of the car anyway”. In cross examination he was asked about what he had told the police regarding the make of the car. He said that he could recall describing it as a black two door Honda. He also said that he was definite that it was a two door car.
[23] As we indicated, Ms Taylor’s car was a maroon coloured Mazda. Although the Crown case did not necessarily turn on this vehicle being the one which was used in the shootings, that was pretty much the premise upon which the case was left to the jury. Neither the prosecutor nor defence counsel showed Messrs Barnes and Smillie photographs of Ms Taylor’s car. Although Ms Taylor’s Mazda does look rather like a two door Honda Prelude, no evidence was led as to the similarity in appearance between the two relevant makes of car.
[24] Andre Martin (the person who received the text at 2.35am) was as we have noted, a boyfriend of Ms Taylor. There was evidence suggesting that he had some time (weeks or months) before 2 October, had fired shots at Mr Tuimana. A woman (and the defence suggested that this was or may have been Ms Taylor) had also been involved. Ms Taylor had family connections with gang members.
[25] At trial Mr McKinnon gave evidence denying involvement in the offending and he called a witness who provided some (albeit rather vague) support for his alibi, notice of which had been given late in the piece. This witness relied on some diary entries as to when Mr McKinnon had been working. Strangely (according to the Crown) the only entries in the diary associated with Mr McKinnon’s working were on 1 and 2 October 2006. No evidence was called for Mr Hira.

Complaints about the way the Judge dealt with the statements of Ms Taylor and Ms Roundtree

[26] Counsel for the appellants contended that the Judge:
[27] We will address each of these contentions in turn.

Permitting the witnesses to be cross-examined by the prosecutor

[28] Section 94 of the Evidence Act provides:

94 Cross-examination by party of own witness

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.

The definition of hostile is contained in s 4 which is in these terms:

hostile, in relation to a witness, means that the witness—

(a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or

(b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or

(c) refuses to answer questions or deliberately withholds evidence.

[29] The Judge’s conclusions that both women were hostile were inevitable. Their claims not to have been able to remember the events of the evening might be thought to have been plainly untrue. They probably had consumed recreational drugs and alcohol. However what ever they had taken did not prevent them giving coherent accounts of events to the police in February 2007 and at the preliminary hearing. Both therefore exhibited an apparent lack of veracity, each gave evidence that was in practical terms inconsistent with their previous statements and each exhibited an intention to be unhelpful to the Crown.

The control of the cross-examination

[30] Once it became apparent that the witnesses were going to be cross-examined on their previous statements, the most straight-forward way of proceeding would have been for the Crown to produce the relevant statements through the witnesses. These statements were admissible (because they were not hearsay and not in the nature of prior consistent statements). Each had evidential value. We were told, however, that when this course of action was suggested, the Judge acceded to objections from defence counsel with the result that the prosecutor was required to go through the relevant statements with each of the witnesses. It is right to note that an exercise of this sort was probably going to happen anyway. The prosecutor was entitled to supplement what was said in the out of court statements (which we regard as including the evidence at the preliminary hearing) with such additional material as he could extract in cross-examination from the two women.
[31] As it turned out this did lead to some limited repetition (particularly because the cross-examination was addressed not only to the police statements in each case but also to material associated with the preliminary hearing). We see this, however, as partly a corollary of the tactical decision which was made by the appellants through their counsel to oppose the statements being tendered as exhibits. And in any event we see nothing unfair in what happened. Ms Taylor in particular did give ground when cross-examined by the prosecutor. Further, although the evidence given at the preliminary hearing was broadly consistent with what had been said to the police, it was given on oath, and importantly, was in Ms Taylor’s and Ms Roundtree’s own words. This presumably added to the weight which the jury might otherwise have placed on the statements made to the police which were not on oath and were in narrative form as prepared by the interviewing officers.
[32] Mr Thackery suggested that what happened was forensically worse for the appellants than if Ms Taylor and Ms Roundtree had not claimed amnesia; this given the repetition to which we have referred and practical constraints on the effectiveness of defence cross-examination as to the accuracy of the statements given that the two women generally claimed to remember nothing of the key events. There may be some force in this contention but to the extent that this is so, it goes primarily to the weight which the jury might attach to the accounts given by the two women. It is apparent from the summing up (see [46]) that this particular contention (or something like it) was indeed put to the jury by Mr Thackery.

The Judge’s directions

[33] In his summing up the Judge treated the statements made by both women as part of the evidence which was available to the jury. His discussion of this in the summing up was comparatively brief. This is what he said:

[69] When Cheryl Taylor and Jamie Roundtree each gave evidence they claimed to have difficulty remembering certain events. For each I gave permission to the Crown prosecutor to examine them on the written statements that they had made to the police and had made to a depositions hearing. Either Cheryl Taylor or Jamie Roundtree have told you that a statement or part of a statement she made to the police was not true then that statement is still evidence to the content of that statement or part of that statement as long as you accept that the witness made the statement. It may also be relevant to Cheryl Taylor or Jamie Roundtree’s credibility in that they may have given different accounts to the same events.

[34] We accept the direction could have been in terms which were rather more directly focussed on what was truly in issue in the case. Although the Judge was correct to say that the previous statements were admissible only if the Jury were satisfied that the women had made them, that in fact was not really an issue because it was perfectly clear that both women had made statements. The more material issue which arose was whether those statements were true, which was a jury issue.
[35] That said, we see no risk of the process having miscarried.
[36] In the context of the case as a whole, it was entirely obvious to the jury that the primary issue in the case was, indeed, whether what was said by the two women in their statements was true. At least in closing addresses, defence counsel suggested that the shootings were arranged by Ms Taylor and, indeed, that she may have been directly involved in them along with Andre Martin. It was also suggested that she sent the text message to Mr Martin. So the alternative theories of the case were clearly before the jury.
[37] There was, of course, a good deal of contextual evidence which supported the truthfulness of the statements, in particular:

Was it reasonably open to the jury to conclude that the appellants were involved in the two shootings?

[38] The relevant test is explained by the Supreme Court in R v Owen [2008] 2 NZLR 37.
[39] We are well satisfied that there was an ample evidential basis for the jury’s conclusion. There was animosity between Mr McKinnon and Messrs Lafaiki and Tuimana. Mr Hira, although not directly involved in that background, was Mr McKinnon’s cousin. There was evidence that, on the evening of the shootings, Mr McKinnon talked about going to “sort out” the “problem” with Messrs Lafaiki and Tuimana, that he produced a firearm and said “let’s go”, that the appellants left together in a car, returned, and then left a second time. There was evidence to the effect that on their return Mr McKinnon made statements to the effect that they had hit a family home and that the children should stay away from the windows (evidence which was plainly admissible against Mr McKinnon). The account of events given by Ms Taylor and Ms Roundtree were corroborated in the manner just explained: see [37] above).
[40] The jury must have concluded that the evidence of the two eye witnesses as to the make of the car apparently involved in the shootings did not raise a reasonable doubt as to the guilt of the two appellants. This is unsurprising because it is possible either that the two eye witnesses may have mistaken Ms Taylor’s Mazda for a Prelude (or something similar) or alternatively that a car other than Ms Taylor’s Mazda was used for the shootings.

The wounding count

[41] Both appellants were found guilty of wounding with intent to cause grievous bodily harm in relation to the first incident. They both challenge this verdict on the basis that a jury could not rationally have excluded the possibility that those involved in the shooting intended merely to “shoot up” the house (which was the result of what happened at Mr Tuimana’s house), rather than hitting one or more of the occupants.
[42] The jury had before it an alternative count in relation to this incident of wounding Ms Boyd with reckless disregard for safety.
[43] Although the jury’s choice of the more serious of the alternative counts was perhaps not inevitable, we think that it was, on the evidence, open to them. Seven shots were fired into the house, the weapon used was a military style firearm, the shots were predominantly fired in the direction of the bedroom and the incident occurred at a time when it could fairly be expected that those who lived in the house would be in the bedroom (as proved to be the case).
[44] The Judge’s directions on this point were succinct, to say the least. He directed on the elements of the wounding count and he then referred to the alternative count as being available if one, other or both of the appellants were found not guilty on the wounding count. In summing up on the Crown case he noted the submission that the surrounding circumstances showed that there was an intention to cause grievous bodily harm or that, at the least, there was recklessness.
[45] It may have been better if the Judge had dealt with the intent issue in rather more detail. It would, also, have been better if the Judge had been specific as to the evidence which was relevant to the issue of intent; this all the more so given that defence counsel (both of whom argued that their clients were not involved at all) had not engaged with the intent issue.
[46] On the other hand, the jury had the indictment in front of them which, in conjunction with what the Judge said, made it clear that there was a choice to be made and there is no reason to suppose that they misunderstood the nature of their task. As well, the issue of intent was relatively straight-forward. There were the factors referred to in [43] and the relatively straight-forward issue was whether those considerations justified a conclusion (on the criminal standard of proof) that the offenders intended to cause grievous bodily harm as opposed to intimidation of the occupants of the house.
[47] We do not see this ground of appeal as having been made out.

The directions as to parties

[48] In his summing up the Judge gave the following direction on parties:

[17] ... For all counts you may consider a provision in s 66 of the Crimes Act 1961 which says that everyone is a party to and guilty of an offence who; (a), actually commits the offence; or (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. Section 66 goes on to say that “where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party 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.”

...

[20] The Crown say that there is no minimum level of encouragement required to become a party to a crime and if the accused persons helped or encouraged at any level then that is enough.

[21] The Crown say that the accused persons getting into the car with the firearm means that they are accomplices and must have intended to help or encourage what happened.

[49] The Crown case had not been put on the basis of s 66(2) and after the jury retired, this was pointed out to the Judge by the prosecutor. So the Judge then called the jury back and said this:

[78] Members of the jury I am sorry to drag you back into Court quite so quickly but there is one matter I need to explain to you that will hopefully assist you in your deliberations. After you left I have had a discussion with counsel and there is one matter I need to bring to your attention following that discussion.

[79] It is necessary to advise you the Crown have based their prosecution on s 66(1) of the Crimes Act 1961, that is the parties’ section of the jury materials and in my summing up to you I made a reference to s 66(2). The Crown have not based their case on s 66(2) so you should ignore what I said about s 66(2) and if you have made any notes about what I said about s 66(2) cross them out.

[80] Also to assist you in considering s 66(1) as set out in your jury materials I can say that for it to apply in this trial the onus of proof is on the Crown to prove that each accused had knowledge of the unlawful act that was intended and had an intention to assist or encourage that act. I see one or two of you writing so I will repeat it again. The s 66(1) is to apply as it is set out in your jury materials. The onus of proof is on the Crown to prove that each accused had knowledge of the unlawful act intended and had an intention to assist or encourage that act.

[50] We should also record that the Judge provided to the jury a booklet of jury materials in which he had it clear that that the Crown had to prove that “the Accused were involved” in the offending.
[51] In order to establish guilt in relation to each appellant and each count the Crown had to prove that:
[52] It is frankly disappointing that the Judge did not sum up to the jury on this basis, using concrete language and providing a step by step approach for the jury to follow in their deliberations. Summing up by reference to the language of s 66 (and particularly where the wrong subsection is referred to) is not in accordance with best practice. This style of summing up can easily result in an appeal being allowed, see R v Vaihu [2009] NZCA 111. That said, this was a very simple case which in practical terms (and leaving aside the choice between the alternative counts in respect of the first incident) turned on whether the jury were satisfied that the defendants were in the car at the time of the shootings. And we consider that the key issues were placed before the jury.
[53] We can demonstrate this by reference to the points made above at [51] as follows:

The sentence appeal by Mr Hira

[54] The Judge’s sentencing approach broadly was that an appropriate sentence for the two driveway shootings was ten years imprisonment and that in each case there should be an uplift of one year for aggravating circumstances, presumably a reference to each man’s prior history. He regarded the culpability of the two appellants as being broadly similar.
[55] A complicating feature in relation to sentencing was that the appellants had faced charges associated with possession of the rifle which was found at Pahiatua. Mr Hira pleaded guilty to this charge and was sentenced to 16 months imprisonment, a sentence which he had served by the time he stood trial in relation to the shootings. Mr McKinnon, however, defended the charge and was found guilty following a separate trial. Sentencing on that charge was held over until the result of the trial before Judge Dawson.
[56] The Judge addressed this by giving Mr Hira an allowance of 21 months off the 11 year sentence he imposed on Mr McKinnon. We are not able to work out the arithmetical logic underlying the deduction. Presumably Mr Hira would have served eight months of the 16 month sentence for the firearms offence. Given the minimum periods of imprisonment which were imposed, a discount of perhaps sixteen months could perhaps have been justified. But in light of their records and the nature of their offending, neither appellant seems to be a plausible candidate for release when first eligible for parole. On this basis, the eight months actually served might be thought to correlate more appropriately to a deduction of around 12 months.
[57] The primary basis of Mr Hira’s appeal is that his culpability should have been seen as being less than that of Mr McKinnon. The shootings had their origin in a dispute which involved Mr McKinnon rather than Mr Hira, it was Mr McKinnon who provided the gun, he initiated the offending by saying, “let’s go” to the other men, his partner’s car was used (at least apparently) and so was her address.
[58] On the other hand, the actual roles played by the appellants in the shootings are unclear and it is not appropriate to speculate as to who fired the shots. And it is clear that the appellant was, from an early point, a participant in the critical events.
[59] After anxious consideration, we have decided not to interfere with the sentence imposed on Mr Hira. We consider that his culpability is, at best, only slightly less than that of Mr McKinnon and that this is adequately addressed by the inappropriately generous deduction allowed by the Judge for the firearms offending.

Disposition

[60] The appeals against conviction and sentence are dismissed.

Solicitors:
Peter S Coles, Solicitor, Palmerston North for Mr Hira
Opie & Dron, Solicitors, Palmerston North for Mr McKinnon
Crown Law Office, Wellington

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