[1] Mr Jonothan Poutai appeals against his conviction following trial before Priestley J and a jury in the High Court at Whangarei in June 2009 on one charge of wounding with intent to cause grievous bodily harm. The sole ground of his appeal is that there was a miscarriage of justice because of a decision made by Duffy J before trial to allow the Crown to lead evidence of Mr Poutai's association with a gang.
[2] Mr Poutai also appeals against his sentence of 12 years imprisonment with a six year minimum period of imprisonment on the ground that it was manifestly excessive.

Facts

[3] The essential facts are not in dispute. A group of prisoners at Northland Regional Corrections Facility at Ngawha attacked another prisoner, Mr Matthew Te Hira, on 8 March 2008. The attack was conducted in three waves of assault by four prisoners acting in pairs.
[4] In the first wave prisoner C cleared Mr Te Hira's cellmate from the cell, shut the door and in company with prisoner H pushed and punched Mr Te Hira about the body and head. In the second wave prisoners TW and B pushed Mr Te Hira to the floor in a shower area and kicked and stomped on him about the head and body. In the third wave prisoners H and TW punched and kicked Mr Te Hira with an improvised weapon made of torch batteries within a sock; at one stage Mr Te Hira was lifted by the shoulders off the ground and slammed at least twice head first into the floor.
[5] The attack left Mr Te Hira with life-threatening injuries. He was admitted to Whangarei Hospital in a semi comatose state with a perforated eardrum and a grossly swollen face. A CT brain scan revealed that he had sustained a severe brain injury. He spent 15 days in intensive care before being transferred to a traumatic brain injury rehabilitation unit. The long term effects of his injuries include significant memory impairment and mild to moderate cognitive deficits.
[6] Mr Poutai did not participate physically in the attack. However, it was the Crown case that he was the mastermind. As Priestley J noted in a ruling following a challenge to the admissibility of a prison officer's evidence, in legal terms Mr Poutai allegedly incited, counselled or procured the assault: s 66(1) Crimes Act 1961.[1]
[7] The Crown's case was that Mr Poutai orchestrated the beating. His motive was retribution for Mr Te Hira's participation in a sexual relationship with Mr Poutai's partner while Mr Poutai was in prison. At meetings held on the morning of and the day prior to the beating Mr Poutai organised the other prisoners to act at his direction. Additionally he actually oversaw the attack and was heard to inquire whether the attackers had caused Mr Te Hira physical harm and, to that end, to observe that Mr Te Hira deserved to die.
[8] The Crown's case was that Mr Poutai was a senior member of the Black Power gang while prisoners C and H were subordinate members who would be accustomed or prepared to act according to his directions and prisoner B was a member of an associated gang; and that pods or sections within the prison were organised or run along hierarchical gang lines. The Crown applied before trial for a ruling that evidence to this effect was admissible at trial.
[9] Duffy J was satisfied that the attack on Mr Te Hira would be incomprehensible to the jury without an understanding of the true nature of Mr Poutai's connection with the other accused. The Judge concluded, after carefully considering the objections raised by Mr Poutai's counsel, that evidence of the gang participation was directly relevant to the question of motive for participation by one or more accused in the attack on Mr Te Hira.[2] She was satisfied that its probative value outweighed any prejudicial effect. Any illegitimate prejudice could be addressed by appropriate directions to the jury. In any event, there would inevitably be evidence of association of some of the accused men with the Black Power gang.[3]
[10] Evidence was led at trial accordingly.

Conviction

[11] Mr Garbett for Mr Poutai submits that, as a consequence of Duffy J's ruling, the prosecutorial evidence led at trial about gang connections evolved from simply showing a motive for participation to a point of domination of the Crown case. He referred particularly to the evidence of two prison officers which may have led the jury to conclude that the attack was a gang operation under Mr Poutai's direction as a leader of the Black Power. He says that it was not Mr Poutai's words or actions dispassionately considered which made him guilty as a party. The dominating reason for the jury's verdict may well have been Mr Poutai's gang involvement.
[12] Mr Garbett acknowledges that evidence of the association satisfied the statutory test of relevance under s 7(3) of the Evidence Act 2006. But, he submits, it carried the risk of unfairly prejudicing the result contrary to s 8. The evidence was not necessary, he says, or at least not to the extent that it was given, to establish motive or make sense of the Crown case.
[13] In our judgment evidence of the Black Power association was plainly relevant to the case against Mr Poutai, as Mr Garbett now appears to accept. It did not establish Mr Poutai's motive for arranging an attack on Mr Te Hira, which was of a personal nature unrelated to gang activities. Instead it was directly material both to the motives of others for participating in the beating and Mr Poutai's modus operandi for exacting retribution.
[14] The Crown's case was that Mr Poutai's status within the Black Power gang enabled him to command lesser ranking members to do his physical bidding. He was able to exercise a form of remote control over the attack from a vantage point opposite Mr Te Hira's cell, immunising himself from the line of identifiable physical fire and the risk of apparent criminal culpability. Evidence of the gang hierarchy within the prison, and Mr Poutai's role within it, was central to the Crown's thesis.
[15] Furthermore, as Duffy J found, exclusion of this evidence would have created an artificial picture for the jury and an unfairness for the Crown. The jury would have been deprived of evidence of what the Crown says was the real reason for the assailants' participation. Ms Edwards for the Crown rightly submits that without the evidence the jury would have had to assume that each of the four attackers was motivated solely by a sense of injustice that Mr Te Hira had engaged in sexual activity with Mr Poutai's partner while he was in prison. It is contrary to the interests of justice to present a jury with an unnecessarily misleading version of events.[4]
[16] The only question is whether the weight of gang evidence might have created an illegitimate degree of prejudice at trial. This Court has consistently recognised the moderating effect of a Judge's direction to a jury.[5] Priestley J delivered clearly expressed warnings both in his opening remarks and summing-up against drawing inferences of guilt based upon Mr Poutai's Black Power connection. Courts assume that juries perform their sworn functions in accordance with judicial directions and we are satisfied that each of the Judge's directions would have removed or alleviated any risk of illegitimately prejudicial reasoning.
[17] Mr Garbett seeks to support his argument by Priestley J's decision to discharge two other accused during trial. The defences for both men partly relied on the fact that they were not members of Black Power. However, this event is irrelevant. The Judge discharged each of those two accused because of an insufficiency of evidence, not because of their non-association with a gang.
[18] We add that the Crown's case against Mr Poutai was both circumstantial and direct. It called one eye witness, S, who saw and heard Mr Poutai throughout the attack period. S's evidence was particularly incriminating in circumstances where Mr Poutai elected not to give a competing account at trial. S was subjected to intense cross-examination by Mr Garbett, who in his succinct closing address invited the jury to dismiss S's account as unreliable. The verdict shows that the jury reached a different conclusion.
[19] In effect Mr Poutai is attempting to exploit a perceived risk of unfair prejudice in order to exclude evidence which is of decisive relevance against him. Its probative value for the Crown case and its corresponding prejudice to Mr Poutai's defence are beyond question. Any risk of unfair prejudice was met by Priestley J's directions to the jury. Despite Mr Garbett's powerful submissions, Mr Poutai's appeal against conviction must fail.

Sentence

[20] Priestley J sentenced Mr Poutai to a term of 12 years imprisonment. That figure was both the starting and end point. The Judge adopted starting points for other offenders within the range of eight to 12 years. He was plainly satisfied that Mr Poutai was the ringleader.
[21] Mr Garbett submits that Priestley J not only erred, but he erred by a substantial margin. He submits that an end sentence of six years imprisonment should have been imposed. His primary ground is that the Judge erred in identifying Mr Poutai as the person who initiated and directed the attacks. He says that the Judge failed to assess the correct degree of Mr Poutai's culpability and impose the least restrictive outcome. He has provided a detailed analysis of extracts of the evidence in support.
[22] We reject Mr Garbett's submissions. Priestley J had the inestimable benefit of presiding over a multi-accused trial of some two weeks duration. He saw and heard all the relevant witnesses. Moreover, the jury's verdict proved its acceptance of the Crown's thesis. While Mr Poutai was careful not to participate physically, the Judge had a proper factual foundation for concluding that Mr Poutai directed and incited an attack on Mr Te Hira of sustained and escalating severity which inflicted serious permanent injury. Mr Poutai was fortunate that the Judge did not increase his starting point of 12 years to take into account that at 44 years of age Mr Poutai had accumulated 96 previous convictions, many for violence.
[23] Mr Garbett properly accepts that if Priestley J did not err in his evaluation of the facts then Mr Poutai's sentence of 12 years imprisonment was well within the permissible range for a crime of this severity, and there is no basis for interfering with sentence of a non parole period of six years.

Result

[24] Mr Poutai's appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Briggs and Ors HC Whangarei CRI-2008-027-000660, 17 June 2009.
[2] R v Briggs HC Whangarei CRI-2008-027-000660, 21 April 2009 at [41].
[3] At [31]-[32].
[4] Key v R [2010] NZCA 115 at [34].
[5] Key v R at [35]; R v Jamieson [2008] NZCA 437 at [13].

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