Rameka v R [2011] NZCA 75 (18 March 2011)

Last Updated: 24 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA131/2010 CA133/2010 CA173/2010 CA207/2010 [2011] NZCA 75

BETWEEN RAELEEN MATEWAI NOYLE RAMEKA JAMIE AHSIN CLARKE JAMES MCCALLUM DANIEL CRAIG RIPPON Appellants

AND THE QUEEN Respondent

Hearing: 10 November 2010

Court: O'Regan P, Chambers and Arnold JJ

Counsel: D M Goodlet for Appellant Rameka N J Sainsbury and L A Scott for Appellant Ahsin C W J Stevenson for Appellant McCallum G J King for Appellant Rippon J Pike and J Mildenhall for Respondent

Judgment: 18 March 2011 11.30 am

JUDGMENT OF THE COURT

1. Extensions of time to appeal are granted to Ms Ahsin, Mr McCallum and Mr Rippon.
2. The appeals against conviction of all appellants are dismissed.

100. The appeals against sentence of Ms Rameka, Ms Ahsin and Mr Rippon are allowed and in each case the minimum period of imprisonment imposed by the High Court is quashed. In their place we impose the following minimum periods of imprisonment:
     • Ms Rameka: ten years
     • Ms Ahsin: ten years
     • Mr Rippon: 11 years and six months.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No
Introduction [1]
Issues [2]
Facts [4]
Should Ms Brooks’s evidence have been excluded? [19]
Breach of practice note [20]
Prosecutor’s closing address [36]
Press report [44]
Directions on party liability [48]
Withdrawal under s 66(1) [59]
Mr Ahsin [61]
Mr Rippon [77]
Mr McCallum as “gateway to conviction” of remaining
appellants [80]
“Lies” direction [87]
Unreasonable verdict: Ms Rameka [90]
Test to be applied [91]
Description of appellant [94]
Section 66(1) – discussion [95]
Section 66(1) – conclusion [118]
Section 66(2) – discussion [120]
Section 66(2) – conclusion [134]
Unreasonable verdict: Ms Ahsin [137]
Party under s 66(1) [138]
Party under s 66(2) [139]
Discussion of the law [140]
Knowledge of weapons [153]
An act of the type committed? [157]
Sentence appeals [159]
Mr Rippon [160]
Ms Ahsin [165]
Ms Rameka [170]
Overall conclusions [174]

Introduction

[1] The four appellants were convicted of murder after a jury trial in the High Court at Whanganui. The trial Judge, Dobson J, sentenced them to life imprisonment, with minimum periods of imprisonment varying from 10 and a half years to 15 years.[1] They had also been charged with assault and intentional damage. The appellants were discharged from the assault charges under s 347 of the Crimes Act 1961.[2] The jury found Mr McCallum guilty of the intentional damage charge but acquitted the other accused. The appellants now appeal against their convictions and all apart from Mr McCallum also appeal against sentence (in each case, against the length of the minimum period of imprisonment). The notices of appeal for all except Ms Rameka were received by the Court outside the appeal period, but only by a small margin, and we grant extensions of time to appeal.

Issues

[2] There are numerous grounds of appeal against conviction, some of which apply to some appellants only. In summary the issues we are required to address are:

(a) whether the evidence of a Crown witness, Ms Brooks, ought to have been excluded. She was a hostile witness. This ground requires us to consider whether a statement she made to the police was obtained in contravention of the Chief Justice’s Practice Note[3] and whether her evidence should have been excluded as unreliable;

(b) whether statements improperly made by the prosecutor in her closing address caused a miscarriage of justice to occur;

(c) whether a report of a hearing in chambers in the Wanganui Chronicle led to a miscarriage of justice;

(d) whether the directions given to the jury by the Judge on party liability were in error;

(e) whether the jury ought to have been directed on the possibility that Ms Ahsin withdrew her assistance to Mr McCallum in terms of s 66(1) of the Crimes Act before the killing occurred;

(f) whether a miscarriage arose from the Crown case against the appellants being predicated on the proposition that Mr McCallum was the killer of the victim, Mr Paul Kumeroa;

(g) whether a direction similar to a lies direction ought to have been given in relation to the revelations said to have been made to Ms Brooks by some of the appellants;

(h) whether the verdict against Ms Rameka was unreasonable;

(i) whether the verdict against Ms Ahsin was unreasonable.

[3] We will deal with each of these in turn, before turning to the sentence appeals. Before doing so we summarise the factual background.

Facts

[4] The summary that follows reflects the Crown case at the trial, much of which is disputed by the appellants.
[5] Mr McCallum and Mr Rippon are patched members of the Black Power gang in Whanganui. Ms Rameka and Ms Ahsin are associates of that gang. Ms Ahsin is Mr Rippon’s de facto partner.
[6] Mr Kumeroa was killed at approximately 10 pm on 23 September 2008. The events leading to his death commenced earlier that day, when Ms Ahsin and Mr McCallum had an altercation with a member of a rival gang, the Mongrel Mob, outside Countdown Supermarket, on Victoria Avenue. We will call this the Countdown incident. That happened at 1.46 pm.
[7] Shortly after that Mr McCallum, Ms Ahsin and Ms Rameka were seen near the WINZ office in Victoria Street, getting out of a borrowed Mitsubishi Galant vehicle. They then went to a party at a property in Gibbons Crescent in the mid-afternoon at which point Mr Rippon apparently joined them.
[8] Later in the day, about 8 pm, the appellants drove to the “North Mole”, along the Whanganui River mouth, flashing high-beam lights at the car they had tailed to the Mole. Occupants of cars parked at the “North Mole” were verbally abused. The appellants yelled things like “dog shits” (a derogatory name for Mongrel Mob members) and Black Power slogans at the members of the public who were in the cars. Mr McCallum had a weapon of some description. Mr Rippon also brandished a butcher’s knife. We will call this the Mole incident.
[9] The appellants were also seen at a Challenge service station in Cross Street shortly after the Mole incident. They then returned to the party at the property in Gibbons Crescent at about 9.30 pm. At the party, Ms Rameka approached an arriving car. She recognised a man in the car with whom she had been involved in an altercation a year or two earlier. The man had been wearing a red hoodie, and Ms Rameka had called him a “dog shit” and had attempted to hit him with a spanner. He had punched her in the jaw. Fearing imminent violence if they remained at the Gibbons Crescent property, the visitors left. As they did so, Mr McCallum threw a spanner into the back window of the departing car. It is this act that formed the basis of the intentional damage charge. We will call this the Gibbons Crescent incident.
[10] The appellants then left the Gibbons Crescent address at around 9.45 pm and drove around Castlecliff, which is apparently considered to be “gang turf” for Black Power. They saw Mr Kumeroa walking home along Cross Street. He was intoxicated and was wearing a red hoodie. Red is commonly associated with the Mongrel Mob, but Mr Kumeroa had no connections with any gang. The car did a U-turn and some of its occupants were yelling abuse from the windows. Mr Kumeroa approached the back passenger seat of the car and got part of his body into the car, but was pushed out by Ms Rameka. Mr McCallum and Mr Rippon got out of the car and Mr McCallum pulled Mr Kumeroa out of the car. Mr Kumeroa walked away but was then set upon by Mr McCallum and Mr Rippon. Mr Kumeroa put up little resistance.
[11] Mr McCallum then returned to the vehicle and there was a confrontation with Mr Rippon. Mr McCallum went back to Mr Kumeroa. He hit Mr Kumeroa to the head with the butt of an axe. It appears he had this axe in his clothing though there was also evidence he had retrieved a weapon, thought to be a baseball bat but possibly the axe, from the car. Mr Kumeroa fell to the ground and another blow was administered. Mr Rippon remained by the vehicle. Ms Ahsin and Ms Rameka were said to have been yelling encouragement and got out of the vehicle at some point. Mr Rippon was said to have patted down Mr Kumeroa’s body, looking for valuables or personal effects that Mr Kumeroa may have been carrying.
[12] Mr Kumeroa died soon after being admitted to hospital. The cause of death was bleeding inside his skull cavity from the blows delivered to his head, which raised the intracranial pressure. He also had a number of other injuries.
[13] After the killing, the appellants went to the house of Ms Brooks, who was a Crown witness at the trial. The Crown case was that Ms Brooks had later driven Mr McCallum, Mr Rippon and Ms Ahsin to a supermarket and that during this journey, the three of them had bragged about attacking a Mongrel Mob member. Ms Brooks told the police of this but recanted at depositions and at the trial and was declared a hostile witness.
[14] The Mitsubishi Galant vehicle was found completely burnt out at Castlecliff Beach the next morning. The sweatshirt Mr Kumeroa was wearing was never found.
[15] The Crown case was that Mr McCallum was the killer and the other appellants were parties. The Crown put this forward on two bases. The first was that the appellants had formed a common intention, subsequent to the Countdown incident, to seek out members or associates of the Mongrel Mob gang to abuse, assault or threaten. The second was that Ms Rameka, Ms Ahsin and Mr Rippon had aided and abetted or incited the killing of Mr Kumeroa by Mr McCallum.
[16] The appellants each denied the offending and argued that there was insufficient evidence linking them to each of the events leading up to the murder, and insufficient identification of each of them at the murder.
[17] The case for Mr McCallum was that he was not the person identified as having murdered Mr Kumeroa. The others denied being parties to any killing by Mr McCallum. Mr Rippon denied having been at the scene. Ms Rameka accepted she was at Cross Street but claimed she was virtually comatose from alcohol. Ms Ahsin denied any acts of encouragement, if it were proved that she had been at the scene.
[18] If it were decided that they had taken part, they each denied ever forming a common intention to cause someone harm. They each denied having any knowledge that there was a risk that Mr Kumeroa would be killed.

Should Ms Brooks’s evidence have been excluded?

[19] Mr McCallum, Mr Rippon and Ms Ahsin argued that the Crown ought not to have called Ms Brooks to give evidence or that the evidence ought to have been declared inadmissible.

Breach of practice note

[20] Counsel for Mr McCallum, Mr Stevenson, argued that Ms Brooks’s evidence should have been excluded because the police had wrongly suggested to her that she was required to make a statement, in breach of cl 1 of the Chief Justice’s Practice Note. That argument was supported by counsel for Ms Ahsin, Mr Sainsbury, and counsel for Mr Rippon, Mr King.
[21] It was also argued that Ms Brooks’s evidence should have been declared inadmissible because it was hopelessly unreliable and was inconsistent with eye witness accounts. That argument was pursued on behalf of Ms Ahsin and Mr Rippon. It was also argued on behalf of Ms Ahsin that the evidence should not have been put to the jury as Ms Brooks had been hostile at depositions.
[22] The sequence of events relating to the evidence of Ms Brooks was as follows:

(a) She first spoke to the police on 30 September 2008, and said she knew nothing about the incident.

(b) She made a statement to the police on 3 October 2008. In that statement she said that Mr McCallum, Ms Ahsin and Mr Rippon had both boasted about an attack on a “dog shit” in Cross Street when she was driving them to the supermarket at about 11.30 pm on the night of the incident.

(c) Subsequently, Ms Brooks’s partner told the police that she (the partner) had driven the car to the supermarket, not Ms Brooks.

(d) Ms Brooks made a second statement to the police on 13 January 2009, confirming the original statement of 3 October 2008. She said to the police that she had arranged with her partner to say that the partner was the driver to ease pressure which had been put on her after she had made her statement of 3 October 2008.

[23] Ms Brooks was called to give evidence at depositions on 24 March 2009. She was declared hostile. She told the prosecutor that when she made her statement of 3 October 2008 to the police, she had simply told them what they wanted to hear because they had put pressure on her to make a statement. In particular she feared the loss of her children to Child Young and Family (CYF). She also said that she had no choice but to make the statement on 13 January 2009 as the police had directed her to do so. She said the police had said they would not leave her alone until she confirmed the October 2008 statement.
[24] A pre-trial application challenging the admissibility of Ms Brooks’s evidence at the trial was heard by Miller J on 25 August 2009. He ruled that Ms Brooks could be called at the trial, notwithstanding the possibility that she would have to be declared hostile.[4] Miller J recorded that the Crown had not anticipated that Ms Brooks would be hostile at depositions and her allegations that she was put under pressure were not tested at depositions. He recorded that the police did not accept they had placed her under pressure and said they could call evidence to that effect.
[25] The Judge said:[5]

I accept that it remains to be seen whether Ms Brooks will prove hostile at trial. If she does, the statement will be substantially helpful in assessing her veracity for the purposes of s 37(4)(a) and s 37(1), because the circumstances in which it was made tend to confirm that it is reliable and the statement itself is cogent evidence of the involvement of the three accused. The question will be whether it is rendered unreliable by her retraction and her explanations. As to that, there are competing explanations for denying the statement – police pressure or fear of gang retribution. The question which is correct is a jury question. Any prejudice to the three accused can be met by jury directions that the statements are admissible only against an accused who made or adopted them, that the evidence is relevant only in so far as it speaks to what each accused did, and with what intention, earlier in the evening, and that [the] jury should consider whether the accused did not tell Ms Brooks the truth.

[26] Clause 1 of the practice note provides:

A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect but must not suggest that it is compulsory for the person questioned to answer [emphasis added].

[27] Mr Stevenson argued that the evidence given by Ms Brooks about the pressure she said the police had placed on her provided a basis for a submission that a breach of cl 1 of the practice note had occurred. He said that because this had not been resolved prior to the trial or at the trial, the appeal should be allowed and we should order a re-trial, on the basis that there would then be a pre-trial application at which the question of the breach of the practice note and, if such is proved, its impact on the admissibility of Ms Brooks’s statement in terms of s 30 of the Evidence Act 2006 could be dealt with.
[28] In our view, that approach to the appeal is wrong. The matter should have been placed before this Court in a form in which it could have been resolved. It is possible that the Court would find that no pressure had, in fact, been placed on Ms Brooks, in which case there would be no factual basis for the allegation. Counsel should have sought leave to adduce evidence from Ms Brooks about the pressure placed on her, which in turn would have presumably prompted the Crown to seek leave to adduce evidence from the police as to the absence of pressure. Witnesses could have been cross-examined if necessary. The Court could then have made a decision. The approach that was suggested by Mr Stevenson could have led to the situation where the Court allowed the appeal only for the evidence of Ms Brooks to again be admitted, in which case the re-trial would be on exactly the same basis as the first trial.
[29] We do not see that error of approach as significant in this case, however, because we consider that the allegations made by Ms Brooks do not engage cl 1 of the practice note. As we read the last sentence of that clause, the object is to prevent the police from telling a suspect or witness that the person has a legal obligation to answer questions, ie that the police have power to compel the answering of a question. That is not what Ms Brooks alleges in this case. Rather, she alleges that the police made threats and otherwise put pressure on her to answer questions. That may be a basis for evidence being excluded on the basis that it was unfairly obtained, but that allegation has not been made in this case.
[30] It is to be noted that s 30 of the Evidence Act requires that where an issue about admissibility of evidence under that section arises, the defence must raise the issue and set out an evidential foundation for it, and communicate this to the prosecutor. In this case the issue of the reliability of the evidence was raised, but not the question of any breach of cl 1 of the practice note. It may have been because counsel then acting for Mr McCallum did not consider that the behaviour which Ms Brooks alleged came within cl 1, or because it was overlooked. In the present case, the evidence relating to the police pressure on Ms Brooks was before the jury, but the Judge prevented evidence being given indicating a possible source of pressure from the other direction (from the Black Power gang).
[31] In our view, the real basis for concern about Ms Brooks’s evidence was that the circumstances in which it was given arguably meant that it was unreliable, because it responded to pressure from the police. But the reliability of the evidence was clearly an issue both in the pre-trial application and at the trial, and rulings made in that regard are correct. In all the circumstances we do not accept that we should now interfere with the verdict of the jury because of any concerns about a breach of cl 1 of the practice note. The jury was fully apprised of the allegations of police pressure (though not of the police response to those allegations, nor of any allegations of Black Power pressure) and was able to consider the reliability of Ms Brooks’s evidence in that light.
[32] Counsel for Mr Rippon, Mr King, argued that the Judge should not have allowed the Crown to adduce evidence of Ms Brooks’s earlier statements to the police because the evidence contained in those statements was unreliable and of little probative value but was materially prejudicial to the defence. He accepted that, in light of s 94 of the Evidence Act, there was no longer a prohibition on the Crown calling a witness known to be hostile. But he relied on an observation made by Asher J in R v Vagaia to the effect that the Crown should not call a witness if to do so would adduce blatantly unreliable evidence, the probative value of which was outweighed by its prejudicial effect.[6]
[33] The analysis in Vagaia was confirmed by the Supreme Court in Morgan v R.[7] In that case, Wilson J, for the majority, adopted the observation of Asher J in Vagaia and emphasised that in deciding whether to allow a previous statement of a hostile witness to be adduced in evidence, a judge must be satisfied that leading evidence based on a statement, or its production, would not have an unfairly prejudicial effect on the proceeding.[8] He said that issues of fairness could arise where a witness is expected to be hostile and is called for the purpose of getting an unsworn statement before the jury, and unfairness may be exacerbated if the hostility of the witness results in the accused being unable sensibly to cross-examine on the statement.
[34] In this case, as noted earlier, Miller J had found that it was not clear prior to the trial whether Ms Brooks would be hostile. Nor was there any impediment to cross-examination by defence counsel. The evidence in the October statement was plainly of significant probative value, and we do not see that being outweighed by its prejudicial effect. The jury was apprised of the allegations made by Ms Brooks about police pressure, and indeed got a one-sided view of that. In all the circumstances, we do not consider there was any impropriety on the part of the Crown in calling Ms Brooks nor do we consider that the Judge made any error in allowing her previous statement to be adduced after she was declared hostile.
[35] We reject the submission that the evidence should have been excluded because it was hopelessly unreliable. We accept it did not square up in all respects with the eyewitness accounts, but it was generally consistent with the evidence as to what happened at the scene of the killing. There was no explanation of how Ms Brooks could otherwise have known some of the information contained in her statement. Its reliability was rightly left to the jury to assess.

Prosecutor’s closing address

[36] Ms Rameka, Ms Ahsin and Mr Rippon raised prosecutorial misconduct as a ground of appeal. In her closing address, the Crown prosecutor invited the jury to view the CCTV footage which had been screened during the trial and to seek to identify the appellants. Of particular significance was her reference to the CCTV footage of the Countdown incident. The Crown expert witness, Constable Te Paki identified four participants in the Countdown incident, two of whom were associated with the Mongrel Mob, and two associated with Black Power, the appellant Mr McCallum and a Ms Marilyn Martin. He did not identify either Ms Rameka or Ms Ahsin being participants in the Countdown incident. He did, however, identify Ms Rameka from CCTV footage taken from outside the WINZ office in Victoria Avenue. Ms Rameka was seen getting out of the Mitsubishi car at that time.
[37] The prosecutor said that both Ms Rameka and Ms Ahsin were able to be seen on the CCTV footage of the Countdown incident. That was not consistent with the evidence given by Constable Te Paki. There was no dispute that the prosecutor’s actions were unfortunate and improper. She purported to give evidence of what she had seen on the CCTV footage. In effect she was attempting to supplement the Crown evidence from her own observations. The prosecutor also said the footage showed Mr Rippon’s brother at the Challenge service station when no Crown witness had done so.
[38] Quite rightly, trial counsel for Ms Rameka, Mr Brosnahan, was highly critical of the prosecutor in his closing address. He said that the Crown prosecutor “broke the rules, misled you and gave evidence from the bar in a thoroughly unacceptable way”. Similar comments were made by trial counsel for Mr McCallum and for Mr Rippon.
[39] The Judge dealt with this turn of events in his summing up as follows:

Now, I’m urging on you the importance of what you can see on the CCTV footage, Ms Clarke referred to what she can see in those images. She was strongly criticised by defence counsel for doing so, and they are right in the sense that she has not given evidence, so you must disregard her personal view. The Crown’s evidence as to identification was that given from the witness box by Constable Te Paki. Ms Clarke can invite you to view it again and see who you can identify in those images. But she cannot urge you to a view of who is shown on the basis that you should agree with what her own opinion is. Put her personal opinion out of your minds please. As with the rest of the evidence, it is entirely a matter for you.

[40] The Judge reiterated this towards the end of the summing up, when he was directing the jury about Constable Te Paki’s evidence. Having told the jury not to accept the constable’s evidence uncritically, he added this direction:

Remember too that any additions to the Crown evidence of identification of the accused suggested by Ms Clarke from her own observations of the CCTV footage are to be ignored.

[41] While accepting that the prosecutor was at fault, Mr Pike sought to minimise the impact of the prosecutor’s actions. He said that it was legitimate for her to explain that material seen in the CCTV footage was important to the Crown case. He accepted that she should have refrained from saying what she saw on the footage but said that if she had said that the Crown suggested what was on the footage to be seen, no complaint would have been available.
[42] We do not agree that the prosecutor’s actions can be minimised in this way. It was wrong of her to seek to embellish the Crown case by reference to her own observations. However, we do not think the jury would have been in any doubt that they were to disregard her purported identifications, given the very forceful comments of three of the defence counsel in their closing addresses and the direction twice given by the Judge in his summing up. We are satisfied therefore that no miscarriage arose and we reject this ground of appeal.
[43] We note, however, that Ms Goodlet, counsel for Ms Rameka, suggested that this point needed to be considered in tandem with her argument about the sufficiency of the evidence against Ms Rameka. We will revert to the point when we deal with that aspect of the case.

Press report

[44] The Wanganui Chronicle published an article on 4 December 2009 dealing with an in-chambers discussion about the admissibility of the evidence of Ms Brooks. It reported arguments made on behalf of all defence counsel in relation to Ms Brooks’s evidence. The in-chambers discussion was described in the article as the lawyers arguing “for a fair balance of what [the jury] should hear and be given in evidence”.
[45] After the article came to the Judge’s attention he drew it to counsel’s attention and all moved for a mistrial. In the case of Ms Rameka, this was on the basis that her trial counsel, Mr Brosnahan had deliberately been absent from Court when Ms Brooks gave evidence and had not cross-examined her, to allow him to close to the jury on the basis that her evidence did not help the Crown case against Mr Rameka. He was concerned that a report indicating he opposed aspects of Ms Brooks’s evidence being led made it harder for him to disassociate the case for Ms Rameka from the evidence of Ms Brooks. Counsel for the other appellants were concerned that the jury may think that, because they had opposed Ms Brooks’s evidence, it must have been damaging to the defence and, possibly, may have included even more damaging information which was not allowed to be led.
[46] The Judge dealt with the mistrial application as follows:[9]

[8] Because the article can be dismissed as being unreliable on account of material factual errors as to what was discussed in the jury’s absence, once that aspect is conveyed to the jury then I considered the risks raised by defence counsel in their concerns at the newspaper report are sufficiently addressed. I do not consider that an impression given to the jury that there was argument about the way Ms Brooks’ evidence might be handled is, of itself, materially prejudicial to any of the accused. That much would be apparent to the jurors from the interruptions to her evidence, the lapse in time between her original evidence and the resumption of it, and the different tack adopted by Ms Clarke in the form of questions asked after (in the absence of the jury) I had declared the witness hostile. Beyond that, once the jurors are told that the article should not have been published and is in any event wrong in numerous material respects, then I am satisfied that the jurors would disregard any suggestion arising from the article that counsel on behalf of any of the accused opposed the course of evidence from Ms Brooks that subsequently ensued. To take that from the article, members of the jury would have to form a view on which parts of the article reporting argument in their absence could be relied on as accurate. There are no reasonable grounds for such a belief.

[9] I accordingly declined the defence applications for mistrial. On the jury’s return to Court, I gave them a direction to the effect that if they had seen the article, its content ought not to have appeared, and that it was in any event materially wrong and inaccurate in numerous respects, and ought to be disregarded. I further directed that if they had not seen it, they should not seek it out. I indicated to them that I would have the jury attendant ask them at an appropriate point out of Court, how many had, in fact, seen the article.

[10] The jury attendant subsequently reported to me that in the next adjournment he asked all jury members the question I directed him to, and all jurors stated that they had not read the article.

[47] We are satisfied that the Judge dealt properly with the issues raised by the press report and that no miscarriage of justice arose.

Directions on party liability

[48] This point of appeal relates only to those convicted as parties, Ms Rameka, Ms Ahsin and Mr Rippon.
[49] The Crown case was that Mr McCallum was the killer and that the other three were parties. As noted earlier the Crown put its case on two alternative bases. The first relied on s 66(1) of the Crimes Act (aid, abet or insight, counsel or procure). The second was based on s 66(2) which was founded on the contention that the appellants had a common purpose to attack Mongrel Mob associates.
[50] The appeal points about the directions given by the Judge were focused on s 66(1). The Judge’s directions in that regard were as follows:

[24] Persons accused as parties to an offence under s 66(1) must know the essential aspects of what is going to happen, such as that there was to be an attack on a person or persons identified with the Mongrel Mob using weapons of a type that could inflict the injuries that were incurred. However, the parties do not need to know the precise details of how the crime is to be carried out.

[25] Those accused as parties under s 66(1) must intend their participation to assist or encourage the person or persons who commit the crime, and that they were assisting an assault, in this case, of the same type as occurred. If they meant to assist with a different assault, say a beating with fists and no use of weapons, then they have not assisted or encouraged the fatal assault that did occur. So, if you were to find that Mr McCallum intended using a weapon in attacking a person taken to be associated with the Mongrel Mob then, to be liable as a party to offending involving a weapon under s 66(1), each of the others would have to have known that that was Mr McCallum’s intention.

[51] In accordance with best practice, the Judge also provided a question trail to the jury. It distilled the issues for the jury and provided an agenda for their deliberations. In the question trail, the instructions in relation to s 66(1) were as follows:

If you find Mr McCallum guilty of murder, then you should go on and consider the following questions, separately in relation to each of Mr Rippon, Ms Ahsin and Ms Rameka.

Section 66(1) of the Crimes Act

B1. Did he/she incite, aid or encourage[10] Mr McCallum in his assault on Paul Kumeroa?

B2. Was he/she aware that Mr McCallum:

(a) would use a weapon or had an intention to use a weapon of a type that would inflict the sort of injuries that occurred in his assault on Mr Kumeroa; and

(b) intended to kill Mr Kumeroa or inflict bodily injury on Mr Kumeroa in circumstances likely to cause Mr Kumeroa’s death and where Mr McCallum was reckless as to whether Mr Kumeroa died or not?

In respect of each of the other accused considered separately, if, and only if, you are satisfied that the answer to each of questions B1 and both B2(a) and (b) above is “yes”, then you should find that accused guilty of being a party to murder.

If your answer to question B1 and B2(a) is “yes”, but your answer to question B2(b) is “no”, then you should find any accused in respect of whom those are the sequence of answers guilty of being a party to manslaughter.

If your answer to question B1 is “no” in respect of any of the other accused, then you should find that accused not guilty of both murder and manslaughter.

(Footnote in original)

[52] The first issue in relation to these directions is whether the Judge correctly identified for the jury what a secondary party had to be aware of. In his summing up, at [25], the Judge said that the appellants who were accused as parties had to “intend...that they were assisting an assault, in this case, of the same type that occurred.” Mr King said that the Judge’s reference to “assault” in this context was incorrect. He said that rather than using the word “assault”, the Judge should have used “murder” or “assault with murderous intent”.
[53] We do not accept that the Judge was in error in this regard. We consider that the reference to an assault “of the same type as occurred” properly directed the jury’s mind to the necessity that the intention related to an assault of the kind endured by Mr Kumeroa in this case, which involved initially the assault with fists and subsequently the assault with a weapon leading to his death. We consider that the Judge made this clear in the following sentence where he said that if the appellants accused as parties had intended to assist a different assault, such as a beating with fists with no weapons, then they would not have assisted in the fatal assault that did occur. It seems to us that that makes it clear that the intention had to be assist with an assault of the kind that led to the fatality in the present case.
[54] The second question in relation to the directions on s 66(1) also centres on the intention required. The first sentence of [25] of the summing up correctly states the intention requirement:

The accused person must intend to assist or encourage the principal offender in an assault of the kind which the principal offender committed.

However, the outlining of the requirements in the question trail does not specifically mention the need for this intention. Paragraph B1 refers to inciting the assault on the victim, and paragraph B2 refers to the knowledge requirement. In paragraph B2(b) there is a reference to the need for the party to have knowledge of the principal offender’s intention to kill or inflict bodily injury, but there was no direction as to the intention that the party himself or herself must have. In our view paragraph B1 of the question trail needed to read:

Did he/she intentionally incite, aid or encourage Mr McCallum in his assault on Paul Kumeroa?

Or, alternatively, there ought to have been a separate paragraph between paragraph B1 and paragraph B2 which dealt with the intention requirement.

[55] While [25] of the summing up is correct in this regard, we are concerned that the Judge, having given the direction in [25], then took the jury through the question trail in some detail, without mentioning the intention requirement.
[56] This is a point raised by the Bench during the course of the appeal and not by counsel. None of the counsel who appeared at trial, or before this Court, made any adverse comment about the question trail and no-one raised the point at the conclusion of the summing up. This may be because in the present case it was obvious that, if the jury found that the appellants who were accused as parties did in fact aid and abet the murderous assault and knew that Mr McCallum had a weapon of the type used to inflict the injuries on Mr Kumeroa and intended to kill him or inflict bodily injury on him with reckless disregard as to whether he died, then it was obvious that they intended to aid and abet. No-one suggested otherwise at any stage. In those circumstances we do not see this inconsistency between the summing up itself and the question trail as causing a miscarriage of justice.
[57] As is clear from the above discussion about the treatment of party liability in the question trail, the directions relating to secondary parties were generic (i.e. they applied to all three secondary parties). The jury was told, however, that the directions had to be applied to each of Mr Rippon, Ms Ahsin and Ms Rameka separately. It may have been preferable to have had separate question trail directions for each of them, which could then have been tailored to the factual considerations applying to each. The closing address of the prosecutor was unspecific in its treatment of party liability[11] and tailored, fact-specific directions in relation to each secondary party would have provided assistance to the jury that they would not have received from the prosecutor’s closing. While we see the provision of separate directions as a better approach than the global direction made by the Judge, we are satisfied that the question trail was clear in its terms and no counsel suggested that the provision of generic directions was a cause for concern.
[58] Mr Sainsbury also argued that the question from the jury seeking to clarify the difference between the verdict procedure for a principal to that for a party suggested that the jury misunderstood the significance of being a party. We do not make that inference from the question, which appeared to have been focused on the procedure for the verdict rather than on the substantive legal issue.

Withdrawal under s 66(1)

[59] On behalf of Ms Ahsin, Mr Sainsbury argued that a miscarriage occurred because the jury was not asked to consider whether Ms Ahsin withdrew her assistance in terms of s 66(1) before the killing occurred. Mr King made a similar argument on behalf of Mr Rippon.
[60] The Judge did direct the jury that withdrawal was a possibility in terms of s 66(2). In the question trail the jury was asked to consider as one of the steps in the process of determining liability under s 66(2) whether they were satisfied that the relevant accused “had not withdrawn from the unlawful common purpose at the time the fatal injuries were inflicted”. If they had answered “no” to that question, then they would not have found the relevant accused guilty of being a party to murder or manslaughter.

Ms Ahsin

[61] Mr Sainsbury accepted that he did not seek to have the issue of withdrawal from secondary participation put to the jury in terms of s 66(1), because he took the view that Ms Ahsin’s assistance by stopping the car had been completed and she was not therefore in a position to withdraw her assistance. On appeal he argued that he had been wrong to take that position at the trial.
[62] Mr Sainsbury argued that the withdrawal issue was significant from Ms Ahsin’s point of view because there was evidence that she had told Mr McCallum and Mr Rippon, before Mr McCallum produced the axe and the fatal blows were struck, to “get in the car”. He said that this provided an evidential basis for the argument that she had withdrawn her assistance to Mr McCallum prior to the killing occurring and was therefore not a party at the time that the killing occurred. He said this was particularly important because the acquittal of Ms Ahsin on the intentional damage count indicated that the jury did not accept there was a common purpose to attack persons linked with the Mongrel Mob, as the Crown alleged, and therefore the jury must have found Ms Ahsin guilty under s 66(1), rather than under s 66(2).
[63] We do not consider that the verdict on the intentional damage charge inexorably leads to that conclusion, and it seems to us there is no inherent inconsistency between the jury finding that Ms Ahsin was not part of a common purpose to inflict intentional damage at Gibbons Crescent but was party to the common intention to assault a person associated with the Mongrel Mob in the manner that the assault on Mr Kumeroa occurred. The jury must have concluded that Mr McCallum acted impulsively when throwing the spanner and that it was not part of the common purpose to assault Mongrel Mob persons.[12]
[64] Nevertheless, we address the merits of the argument in relation to s 66(1).
[65] On behalf of the Crown, Mr Pike accepted that it was possible for a person to withdraw from secondary participation under s 66(1). While neither counsel identified a particular authority to that effect, there does not seem to be any logical reason to distinguish s 66(1) from s 66(2) in that regard. We were referred to the decision of the High Court in R v Pink[13] in which Hammond J said that participation in a crime can be undone before the commission of the offence, so long as the withdrawal occurs before the crime is attempted or committed.[14]
[66] It is not clear from the report in R v Pink whether the accused in that case was facing liability under s 66(1) or s 66(2). Hammond J found in that case that the Crown could not establish beyond reasonable doubt that Mr Pink had not withdrawn from participation in the crime. He saw the requirements for withdrawal as follows:[15]

• 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...

[67] As is made clear by Simester and Brookbanks, the steps required for an effective withdrawal will depend on the circumstances and the extent of the accused prior participation: the greater the involvement the more the accused must do to withdraw.[16] If the basis of liability under s 66(1) is incitement or encouragement, this can normally be undone by an express statement to the opposite effect. But, as the learned authors note, where material assistance has been rendered, there may have to be some form of physical intervention to impede the crime.
[68] We were not addressed on the analytical basis for withdrawal. One possibility is that withdrawal is a defence. Another is that it is for the Crown to prove beyond reasonable doubt that an accused person did not withdraw.[17] We analyse the issue on the basis that Ms Ahsin had an evidentiary burden to put the matter in issue but that if that burden were discharged it was for the Crown to prove that she had not withdrawn. That is consistent with R v Pink,[18] with the basis on which Mr Sainsbury argued this point and with the Judge’s directions to the jury on withdrawal in the context of s 66(2). It also appears to us to be consistent with the obligation of the Crown to prove its case.
[69] Mr Sainsbury accepted that the significant assistance given by Ms Ahsin was that she drove the vehicle and stopped it near to the victim so that Mr McCallum and Mr Rippon could get out, confront the victim and attack him. He accepted that that assistance was already completed. However he said that her exhortation to get back in the car (which was possibly supplemented by the words “the police are coming”) constituted notice to the principal offender and the co-attacker to desist from the attack and return to the car, and this undid the assistance she had already rendered by driving the car and stopping it at a location where they could get out and attack the victim.
[70] While accepting that withdrawal from s 66(1) liability was a theoretical possibility, Mr Pike said that the factual basis for withdrawal in this case was tenuous. He described the argument as “ambitious” and said that the Judge’s decision to direct the jury on withdrawal from participation under s 66(2) was generous. He said that in the absence of evidence from Ms Ahsin there was no factual foundation for the possibility of withdrawal, and no basis for concluding that the exhortation to return to the car amounted to an instruction undoing the assistance that had already been provided.
[71] As Mr Pike pointed out, the jury must have found, if they concluded in accordance with the Judge’s directions that Ms Ahsin was guilty under s 66(1), that Ms Ahsin had provided assistance by driving the vehicle into a position where the attack was launched in circumstances where Ms Ahsin had the intention of assisting an assault of the kind that actually occurred, namely one from which death resulted. Having completed the assistance required as an element of that offence, it was not open to her to withdraw by merely exhorting the attackers to return to the car. Mr Pike noted that Ms Ahsin did not even exhort the attackers to desist from continuing the attack.
[72] We accept Mr Pike’s submission that the mere exhortation to return to the car did not satisfy the third requirement in R v Pink for an unequivocal withdrawal of the assistance already given. This was not a case where the only basis for party liability was verbal encouragement. Given the significant action already taken in driving the car to the scene and manoeuvring it to a position from which the attack could be launched, it required more than the equivocal statement about returning to the car to provide a proper evidential foundation for the issue of withdrawal to be left to the jury. It should be noted that Ms Ahsin also drove the car away after the attack, with the offenders in it. Thus on the argument now put forward she withdrew for the few moments in which the killing occurred, then resumed her assistance immediately thereafter.
[73] Nor was the fourth requirement in R v Pink met: the conduct of Ms Ahsin that was said to amount to withdrawal could not be said to involve her taking all reasonable steps to undo her previous actions in driving the vehicle to the scene of the attack and positioning it to facilitate the attack. As already noted, she acted as the getaway driver after the attack concluded.
[74] We conclude therefore that Ms Ahsin did not discharge the evidentiary burden of placing in issue the possibility of withdrawal. The conduct she suggested as constituting withdrawal was not sufficient to amount to withdrawal from participation through aiding abetting and inciting the attack on Mr Kumeroa.
[75] We are cognisant that this conclusion does not sit easily with the fact that the Judge must have considered that the evidence of actions of Ms Ahsin that are said to have constituted withdrawal from s 66(2) participation did provide an evidentiary basis for her claim to have withdrawn from the common purpose to attack Mongrel Mob members. One possibility is that the Judge should not have left withdrawal to the jury in relation to s 66(2) either: Mr Pike took that position. The other possibility is that the Judge appreciated that the jury would be considering s 66(2) only if they had already rejected, with respect to a particular accused, that he or she had assisted or encouraged Mr McCallum in his assault on Mr Kumeroa. That is to say, either the Crown had not proved beyond reasonable doubt the specific acts of assistance or encouragement or the Crown had not established that such acts as were proved did assist or encourage. The wrongdoing focused on under s 66(2) was different: it was the act of forming a common intention to prosecute an unlawful purpose. On the facts of this case, it was possible the jury might conclude that common intention was formed some time before, perhaps some hours before the murder took place. In those circumstances, it was possible for the jury to conclude that a particular accused had had second thoughts prior to the assault and had withdrawn from the common intention, especially in circumstances where that accused’s alleged acts of assistance or encouragement had not been proved.
[76] We strongly suspect this must have been the Judge’s thinking. If it was, logically it cannot be faulted. Whether there was an evidential basis for withdrawal is debatable. Whether Mr Pike is right in his submission or the Judge was right in the reasoning we are attributing to him does not matter. That is because, whichever view is taken, we are satisfied that the Judge was right not to leave withdrawal under s 66(1) to the jury. Whether he was wrong to have left it in the context of s 66(2) does not alter that conclusion.

Mr Rippon

[77] Mr King supported Mr Sainsbury’s submissions on the law. He argued that the evidence of Ms Dethierry to the effect that Mr Rippon and Mr McCallum had a “dust-up” before the axe appeared provided an evidential basis for withdrawal from aiding and abetting the attack (s 66(1)). He said the scuffle indicated that Mr Rippon was trying to restrain Mr McCallum from attacking Mr Kumeroa. (Mr Uruamo said this dust-up occurred after the axe attack.) Mr Rippon’s defence was that he was not present and he did not give evidence at the trial. In this context his position appears to be: “I was not there but if I was, I withdrew”. We consider that Ms Dethierry’s description of a “dust-up” is too frail a reed to provide an evidential basis that Mr Rippon withdrew from aiding and abetting the attack. Ms Dethierry said nothing to indicate that Mr Rippon was restraining Mr McCallum and she made it clear that she could not hear what Mr Rippon and Mr McCallum were saying to each other. The jury would have had to speculate to make a finding that Mr Rippon was trying to restrain Mr McCallum from resuming the attack on Mr Kumeroa.
[78] We accept that the Judge must have considered that this evidence could have provided an evidential basis for withdrawal from the common purpose to attack Mongrel Mob members for the purposes of s 66(2). Even if that is correct, that does not mean that the same evidence provides a proper foundation for the proposition that Mr Rippon satisfied the R v Pink test for unequivocal withdrawal from his conduct in assisting with the attack. It was he who patted down Mr Kumeroa’s body after the attack, which is not consistent with the idea that he had unequivocally withdrawn and taken all reasonable steps to undo his previous assistance to Mr McCallum. As with Ms Ahsin, there was no credible narrative to the effect that the third and fourth requirements of R v Pink were met in Mr Rippon’s case.
[79] We reject this ground of appeal.

Mr McCallum as “gateway to conviction” of remaining appellants

[80] This ground of appeal relates to Mr McCallum only. However Mr King endorsed the arguments and submitted that in the event that they succeeded, a retrial should also be ordered for Mr Rippon. As noted earlier, the Crown case was that Mr McCallum was the person who inflicted the fatal blows on Mr Kumeroa.
[81] Mr Stevenson said that there was evidence of a third male person in the vehicle at the time of the fatal attack. He said that the primary defence for Mr McCallum was that he was not present, but that even if the jury was satisfied that he was present, his alternative defence was that it must have been this unidentified third male who was the killer, not Mr McCallum. He said that, as there was evidence that there was a third male, and that that male remained seated in the vehicle during the attack, the Crown could not exclude the reasonable possibility that the male in the car was Mr McCallum, and the third male was the killer.
[82] He said that the trial Judge did not allow the jury to contemplate that possibility in the event that they were otherwise satisfied that one or more of the other accused had been involved as parties to the killing. He said that the way the case was put to the jury, the jury was permitted to consider the liability of the other accused as parties only if they had first convicted Mr McCallum as the principal offender. He said the Judge should have allowed for the possibility that the jury were not convinced that the principal offender with the weapon was Mr McCallum, but had failed to do this.
[83] It is true that the Judge’s instructions to the jury in relation to the appellants charged as parties was that they should consider the questions relating to party liability if they found Mr McCallum guilty of murder.
[84] We do not think the Judge can fairly be criticised for summing up the case as it was advanced by the Crown. There is nothing wrong with the Crown putting its case on the basis that Mr McCallum was the actual killer and the other appellants were parties. And as the Crown did not offer evidence in support of the proposition that another person was the killer, it was not appropriate for the Judge to sum up to the jury on that possibility. The Judge clearly directed the jury on Mr McCallum’s contention that another person in the vehicle could have been the principal offender.
[85] Nor do we see any unfairness to Mr McCallum in this. The concern appears to be that the jury may have wished to convict the party offenders, and that they convicted Mr McCallum despite not being convinced of his guilt so that they could do so. If the jury had acted in that way they would have been acting inconsistently with their oath and with the clear directions given to them by the Judge. There is no basis for us to conclude that they did so.
[86] We reject this ground of appeal.

“Lies” direction

[87] On behalf of Mr Rippon, Mr King argued that the Judge ought to have given a direction similar to a lies direction in relation to the revelations said to have been made by Mr McCallum, Mr Rippon and Ms Ahsin to Ms Brooks. Mr King said the jury had been alerted to the possibility that Ms Brooks’s account of what she had been told was inaccurate. But the jury was not asked to consider the possibility that Ms Brooks had accurately reported what she was told but that what she had been told was, itself, untrue.
[88] We do not see any reason to impose on trial judges an obligation to give a direction of that kind where the evidence given is reporting what another person has said to the witness. There was no suggestion that what had been said to Ms Brooks was itself untrue (though Mr Sainsbury suggested it was no more than puffery) and no reason why the Judge had to speculate about that or speculate about why the appellants might have made untrue statements to Ms Brooks in the circumstances she described.
[89] We reject this ground of appeal.

Unreasonable verdict: Ms Rameka

[90] Counsel for Ms Rameka, Ms Goodlet argued that the verdict was unreasonable having regard to the evidence. She argued that the problems caused by the Wanganui Chronicle report and the improper statements in the prosecutor’s closing address added to this ground of appeal, creating a risk that there was a miscarriage of justice.

Test to be applied

[91] The law on unreasonable verdicts was expressed in R v Munro:[19]

A verdict will be deemed unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt.

[92] It is clear that the Court must not lightly interfere with the jury’s finding.[20] It may not merely substitute its own view of the evidence. Instead it must ask whether a jury could reasonably have been satisfied beyond a reasonable doubt that the accused was guilty.
[93] Ms Rameka appealed on two bases. First, that the evidence was insufficient to identify her as the offender. Second, that in any case there was insufficient evidence to prove that the required elements of party liability under ss 66(1) or 66(2) were made out. We turn first to the inconsistencies in the descriptions of Ms Rameka made by the appellant.

Description of appellant

[94] In her written submissions, Ms Goodlet argued that the descriptions of the appellant made by the different witnesses were inconsistent and did not match the true description of the appellant. Thus there was said to be insufficient evidence to place Ms Rameka at Cross Street at the time of the beating. In particular, she pointed to Ms Dethierry’s admission that she did not have a proper view of the attack on Mr Kumeroa and could mainly see shapes and outlines, rather than precise details. She did not develop this argument orally. We are satisfied that there was evidence of Ms Rameka’s presence in the car earlier in the day and at the Challenge service station that supported the eyewitness accounts at Cross Street. In our view there was adequate evidence for the jury to conclude that she was present when the attack happened.

Section 66(1) - discussion

[95] The Crown case was that Ms Rameka was a party under s 66(1), in that she incited or encouraged Mr McCallum in the fatal assault. The Crown evidence focused on her actions just before the assault, considered in the light of her involvement in earlier incidents.
[96] The prosecutor described the Crown case in relation to Ms Rameka in her closing address in these terms:

... So what have you made finally of Ms Rameka’s involvement? Well the Crown says she’s actively involved. She’s not only encouraging, she’s inciting the violence that occurs that night. She’s involved at the Mole, she’s involved at Gibbons Crescent and she’s involved again, she is the female that is pushing Paul Kumeroa out of the back of the car. And why has Paul come over? Well the only inference there is because this group has been yelling at him as he’s walked along the street and you know from Ms Dethierry that Paul Kumeroa had approached that car and had half his body it would seem inside the car and it was Rameka, the Crown says, because of where she was sitting that night in the back passenger seat, that pushed him out.

After he had gone out... given Mr Uruamo sees two females in the front, it’s the Crown’s case that she clearly hopped in the front passenger seat alongside Ahsin. That’s the only inference you can draw about that because there’s only two females in that car and in Cross Street that night.

She’s actively encouraging, it’s the females that are heard yelling at the Mole, “Y’all fuck y’all, Black Power”. She has an issue with Pomana, the dogshit comment, the breaking of the jaw. If you accept Mr Tipu’s evidence, she tried to grab Mr Pomana out of the car. Admittedly Mr Pomana can’t remember why he drove off. She has a propensity to act exactly in the way that these guys acted in Cross Street. She incited and she encouraged the attack on Paul Kumeroa that night. She was clearly part of the common purpose. She clearly must have known of the weapons, she had her head outside the window for goodness’ sake at the Mole and if those guys in the other [car] saw the knife, so must she have.

She also remember is in the back seat, so whatever is being flicked around at that time at the Mole in the back seat, what looks to be like a baseball bat, she’s seen it. She’s had to, it’s a small car. She knows of the weapons and she’s there encouraging and inciting. She knows the weapons and she must appreciate as part of that common purpose, as part of the Mongrel Mob member type assault, intimidating, wielding weapons, that there’s a real risk of a killing. So she too is guilty of the murder of Paul Kumeroa or at the very least is guilty of the manslaughter of Mr Kumeroa.

[97] Although the two merged in the closing the Crown case was clearly meant to be put on alternate bases. Either this was a s 66(1) situation and Ms Rameka incited or encouraged the murder by yelling and pushing Mr Kumeroa out of the car, or it was a s 66(2) situation and she shared a common intention to prosecute a murder.
[98] The evidence relating to s 66(1) (inciting or encouraging) in respect of Ms Rameka came from eyewitnesses of the death and there were some differences in their respective accounts.
[99] Ms Dethierry said as follows after describing a girl getting out of the back passenger seat:

17. Now as you see her getting out of that back passenger seat, is she saying anything?

A. No, not that I can remember.

...

Q. You see that. What can you hear?

1. I can just hear cussing and yelling. It’s not – didn’t count words. It just sounds like yelling.

...

17. At that time, did you see the man in red that you have told us about earlier?
1. Yep.
17. Where was he?
1. He was in the back of the car.
17. When you say he was in the back of the car, what do you mean? What was he doing?
1. Like being pulled out of it.
17. Who was pulling the man in red out of the back of the car?
1. The guy with the grey hoodie.

...

17. What was the girl that you had described to us as being in the back passenger seat doing at that time?
1. She was helping pushing him out of the car.
17. So was she still in the car?
1. Yep.

[100] In cross-examination by Mr Brosnahan, Ms Rameka’s trial counsel, Ms Dethierry agreed that she could hear the voice of girls “screaming and yelling in the background” before the weapon was used and while McCallum was confronting Mr Kumeroa, and that one of the women had leant over and shouted “get in the car, get in the car”. Mr Brosnahan cross-examined her on her recollection that the door was open, and showed that her evidence about the both doors being open was not consistent with her original statement to the police where she had said that only the back door was open. Ms Dethierry also conceded that her police statement did not mention the girls out of the car.
[101] It is not clear from Ms Dethierry’s evidence whether the yelling continued once the beating commenced:

17. Now as they both walked towards Paul who was sitting on the
    ground, what happened next?
1. They – one of them, I can’t remember which one, but one of them shoved Paul up – like pulled him up from his shirt and then they were just standing around, one was standing in front of him facing him, he was facing the opposite side of the road with his back to me...

...

17. Now you’ve told us before about the yelling that had been happening. Was the yelling still happening?
1. I couldn’t hear anything after that.
17. Why couldn’t you hear anything?
1. ‘Cos our TV was turned right up.

[102] Ms Dethierry was not able to place the two girls while the beating was going on. She described the taller guy with the hoodie walking back to the car and having an altercation with the shorter guy:

17. You’ve told us about the two girls. Did you see them at that time?
1. No.

[103] Once the beating was over the only shouting she recalls was as follows:

17. As the hoodied guy with the axe walks back, what’s he doing with the axe as he is walking back to the car?
1. He’s just letting it hang in his hand, just swinging it.
17. As he walks back to the car can you hear anything from these people?
1. Mhm, yeah I could hear a girl just screaming, get in the car, one of the girls screaming get in the car and that was it.

[104] Mr Uruamo was another eyewitness. He suggested he had heard two females yelling and that he could hear swearing but could not make out the other words:

17. As you were sitting there watching TV having a couple of drinks, what did you hear coming from outside?

A. Well I heard a bit of – bita arguing I suppose – yelling.

Q. And what time was it?

A. That woulda been half past nine, quarter to 10.

17. When you first hear that yelling could you tell how many people were involved in the yelling?
1. I could hear two females, didn’t – yeah – just two females really.

...

17. How long did the yelling go on for?
1. Maybe 20, 20 seconds, 30 seconds yeah.
17. And then what did you do?
1. Well it started getting louder, the yelling and that and so I thought oh well go and have a look, peeped out the window yeah, have a nosey.

...

17. And when you say the yelling got louder were there more people involved in it or did it – the same voices or what?
1. Same voices yeah.

...

[105] Mr Uruamo described both girls as sitting in the front seat and a guy sitting in the back in the middle. Mr Uruamo witnessed a “stand-over” where McCallum was “being tough” with Mr Kumeroa. Mr Uruamo was then asked what he could hear at that time:

17. Now this yelling you had heard, was that still happening?
1. Yeah, yeah.
17. And again who was doing the yelling, could you work that out or not?
1. It sounded like females were doing most of the yelling, yeah.
17. And when you got up and had a look out, could you make out what the yelling was in terms of words or not really?
1. Na not really, yeah.

[106] After the axe had been used, Mr Kumeroa was lying on the ground. Mr McCallum and Mr Rippon then walked back to the car. Mr Uruamo was then asked:

Q. So did they both have hold of the red hoodied guy?

A. Yeah.

Q. Did they manage to pull him to the car?

A. Not, not really, not that far anyway. Not – maybe not even a metre.

Q. What did they do next?

1. Well the, the girl on the passenger’s seat of the car hopped out and started yelling, “Come on let’s go.”

[107] Then later, while Mr Rippon was patting Mr Kumeroa down, Mr Uruamo gave evidence that:

1. The young girl in the passenger’s side, she sort of hops out and starts telling them, “Come on let’s go”, yeah.
17. And you’ve told us earlier about there being a driver and another man sitting in the middle of the car.
1. Yeah.
17. Do you see either of them do anything?
1. No.

[108] Mr Sainsbury, for Ms Ahsin, cross-examined on the voices:

17. Mr Uruamo, when you first became aware of the voices outside, this is when you and your partner are watching TV and before you had seen anyone, you just formed a view that it sounded like there was female voices involved in the argument out there and that’s simply a matter of the pitch of the voice that you’re listening to?
1. Yeah.

...

17. And it is at least possible during that time between the first look and then when your partner said, “He’s got an axe”, and you had another look, so just that time, that amongst the yelling there was a female voice?
1. I could – yeah two – sounded like two female voices.
17. Okay but in terms of what they actually said, you just can’t comment?
1. No.

[109] Mr Brosnahan, for Ms Rameka, also cross-examined on what had happened after Ms Dethierry told Mr Uruamo that Mr Kumeroa had been axed:

17. At the time you went to have your second look was the female that you’ve described by now out of the car and telling people to get in and get out of there, was she there on your second look or not?
1. Sorry can’t remember, can’t remember yeah that time.
17. You’ve told us that you saw at some stage a female and you’ve told us I think that that female was yelling to get in the car and get out of there.
1. Yeah.
17. When you saw that female had she already got out of the car and was she already standing by the side of it?
1. Oh shit. I think yeah. I remember, I remember the passenger female hopped out and you know telling them, “Come on let’s go”.
17. What I want to know is you’ve told us that the passenger was out calling out, “Let’s go, get in the car”, whatever –
1. Yeah.
17. What I want to know is did you see the person actually get out or was it simply the person was there when you came to be looking out of the window on this subsequent occasion?
1. She was already out.
17. You didn’t see where that person came from in terms of the car. You are simply assuming that she looked more like the person you had seen in the passenger side earlier –
1. She was standing in front of the – outside the passenger door and there was no one there, so yeah.

[110] Mr Brosnahan was making the point that the person yelling to “get back in the car” was possibly the driver, rather than Ms Rameka. This was the evidence of another eyewitness, Mr Tarogi, who had a clearer view of the car. Ms Ahsin’s appeal on the withdrawal point was founded on the contention that it was she, not Ms Rameka, who said that.[21] Mr Pike did not dispute that. We proceed on that basis.
[111] Mr Tarogi gave evidence of hearing some screaming but thought it was a male voice screaming for help:

17. And while you were watching that movie, what did you hear from outside?
1. Screaming.

...

17. Now when you heard the screaming, could you tell where it was coming from?
1. Across the road.
17. And what type of screaming was it?
1. Screaming for help or something, ‘cos they were fighting yeah.
17. And at the time you heard the screaming, before you looked out, could you tell how many voices were involved in that screaming?
1. Three, three voices ‘cos there were actually two guys attacking one guy.
17. If I can take you back to the point in time when you heard the screaming, did you have any idea of whether it was male or female screaming?
1. It just male screaming.

[112] Mr Tarogi also described the female driver reversing the car and then getting out and yelling to “go now ‘cos the police might come”. He did not describe another female yelling during the fighting.
[113] Another witness, Mr Takarangi, gave evidence of hearing only one female voice although he clarified later that he had also heard male voices:

17. ... Now while you were watching that movie, what did you hear from outside, what drew your attention?
1. Ah, just a lotta yelling and swearing and my dogs barking.
17. Can you recall about what time it was you heard that?
1. It was probably about half past nine, somewhere around there, yeah.
17. When you first heard the yelling could you make out what actually was being said?
1. Oh just a f’en this and f’en that.
17. How many voices were involved in that yelling could you tell or not?
1. Oh I could just, I could just hear just a female’s voice yelling stuff, yeah.
17. You said f’en this and f’en that –
1. Yeah that was, yeah.
17. Could you make out any of the other words other than the F word?
1. Nah, I dunno.
17. When you first heard all of that happening, did you do anything?
1. No not, not for a while because usually there’s a lot of parties down their street so I thought they were just you know, just having one of their party and then, yeah, so I didn’t.
17. So how long did that sort of yelling and swearing go on for?
1. Oh about a minute or so yeah.

[114] Having described the car and seeing Mr Kumeroa, he then returned to the voices:

17. When you looked out your window to the man on the ground, the car and the other people could you just tell us where they were before they got back in the car?
1. Just around, around the person lying down.
17. How many people did you see?
1. About four, four or five.
17. Any idea whether they were male or female?
1. Just by the voices I suppose male, female.
17. By the voices what could you tell?
1. I just – what I heard was just a female voice at the, at the start.
17. When you looked out could you still hear the yelling or not?
1. No, no it’d stopped. They just all jumped back into the car.

...

17. While you were watching that and either – well before they hopped in the car did you hear anyone yell anything?
1. Just a, just a female’s voice.
17. And what did you hear that female voice say?
1. Just, “Get back in the f’en car” like a panicked voices sort of thing.
17. You said about hearing the female voice. Did you actually see a female at that stage or not?
1. No because by the voice it sounded like a female so.

[115] None of the witnesses who heard the female voices was observing the people at the time. And none of the witnesses was able to comment on what the voices had been saying, except that there was swearing and that, at some point (probably both before and after the attack with the axe) one of the women (seemingly Ms Ahsin) yelled loudly enough to be heard something along the lines of “get back in the car”.
[116] Thus Ms Goodlet argued that it was not clear that Ms Rameka was screaming and, if she was, it was not clear that she was encouraging the others. The jury was asked to infer that she was encouraging the attackers from the fact that she had taken an active part in the earlier events and that she had also pushed Mr Kumeroa out of the car.
[117] Ms Goodlet argued that this did not provide a reasonable evidential foundation for a finding that Ms Rameka had incited or encouraged the fatal attack. Although she called in aid the earlier appeal points relating to the Wanganui Chronicle article and the prosecutor’s closing, we do not see either as material to the s 66(1) argument.

Section 66(1) - conclusion

[118] If the Crown case had relied entirely on s 66(1), we would have had real misgivings about a conviction based only on the alleged act of incitement or encouragement at the murder scene. The Crown case was that Ms Rameka was a party because of her yelling encouragement and because she pushed Mr Kumeroa from the car. We agree with Ms Goodlet that the evidence is too equivocal to provide a basis for a finding that Ms Rameka screamed encouragement. No witness was able to identify what Ms Rameka said. And we do not consider that the evidence was sufficiently clear that it was Ms Rameka who pushed Mr Kumeroa from the car.
[119] We turn now to consider the alternative basis on which the Crown case rested, s 66(2).

Section 66(2) - discussion

[120] The Crown case under s 66(2) was that Ms Rameka was part of the group that had a common purpose to carry out an assault. The elements of s 66(2) bear repetition. The section provides:

Where 2 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.

[121] In addressing the sufficiency of the evidence for Ms Rameka under s 66(2), the first question is whether the four parties formed a common intention to prosecute an unlawful purpose. The Crown case was that the common purpose was to assault and attack Mongrel Mob associates. The Crown closing put Ms Rameka’s involvement as follows:

She incited and she encouraged the attack on Paul Kumeroa that night. She was clearly part of the common purpose. She clearly must have known of the weapons, she had her head outside the window for goodness’ sake at the Mole and if those guys in the other [car] saw the knife, so must she have.

...

She knows of the weapons and she’s there encouraging and inciting. She knows the weapons and she must appreciate as part of that common purpose, as part of the Mongrel Mob member type assault, intimidating, wielding weapons, that there’s a real risk of a killing. So she too is guilty of the murder of Paul Kumeroa or at the very least is guilty of the manslaughter of Mr Kumeroa.

[122] It is necessary to trace through the evidence of the day to see whether there was sufficient evidence to support the Crown allegation that a common purpose was formed. On the Crown case, the catalyst for the formation of the common intention was the incident at Countdown. However it is not clear that Ms Rameka was at Countdown when the incident occurred.
[123] As noted earlier,[22] the prosecutor said in her closing that Ms Rameka could be seen in the video footage of the Countdown incident but Constable Te Paki did not identify her in that footage. Constable Te Paki did however identify her in the photos of the group at the WINZ office, a short time after the Countdown incident.
[124] The other evidence of the Countdown incident came from three other police officers, Constable Cameron, Constable Petersen and Sergeant Allison.
[125] Constable Cameron was called to Countdown soon after the incident. He viewed the CCTV footage and explained what he saw. He said he saw two females having an argument and throwing some items at each other and a male enter the shop. But the only person he recognised was Mr McCallum.
[126] Constable Petersen was the police officer who questioned the occupants of the car following the incident at Countdown. His evidence was that he was directed to speak to the passengers of the vehicle when it was parked outside WINZ. He said there were two people in the vehicles: Ms Ahsin and a young child. He spoke to Ms Ahsin. He did not mention Ms Rameka.
[127] Sergeant Allison was also called out following the incident at Countdown. He met Mr McCallum outside the WINZ office. At the trial, he read from a notebook statement taken from Mr McCallum relating to the incident in which Mr McCallum said the girls who were with him at Countdown were Ms Ahsin and Marilyn Martin, who was pregnant. Sergeant Allison advised Constable Petersen to carry out a search of the vehicle and said he recognised Ms Ahsin. He did not mention Ms Rameka.
[128] The aggregate of this evidence seems to be that the people involved at Countdown were Mr McCallum and Marilyn Martin. Constable Te Paki recognised Ms Rameka as being outside WINZ, not at Countdown. There was no evidence of Ms Rameka being involved in the Countdown incident or linking her to that. Mr McCallum’s statement suggested that it was not a Mongrel Mob/Black Power altercation, but simply a personal spat between the women. It is not clear on the evidence that the Countdown incident did spark a common intention, particularly since the majority of the evidence suggests that Mr McCallum was the only one of the four appellants to be present at Countdown.
[129] The next significant event in the timeline was the Mole incident. In her closing address, the prosecutor characterised it as supporting the common purpose because among the abuse and threats yelled at the occupants of the cars was the word “dogshit”:

What are they doing? They’re yelling out, trying to find out whether these people are effing dogshits. They’re yelling out, “Y’all fuck y’all”. They’re threating to stab them in the face. They’ve got a knife for goodness’ sake, Daniel Rippon in the front seat is saying things like, “I’m going to effing stab you in the face”.

If that is not evidence against all four accused of a common purpose to intimidate, assault and wield weapons at Mongrel Mob members and people they believed to be, I don’t know what is. That is clear evidence of a common purpose.

[130] We are cautious about ascribing a common intention to the appellants simply because they acted as gang associates often do. Mr Sainsbury argued that spontaneous abuse and violence by individual members of gangs to each other is not uncommon. He characterised the events up until Cross Street as random acts of disorder and threats of violence that were no more than evidence of a dysfunctional lifestyle. He also placed reliance on the fact that the appellants never left Castlecliff, accepted to be Black Power territory, which might seem inconsistent with their apparent aim to seek out Mongrel Mob members.
[131] However, we think the events at the Mole went beyond the normal animosity between the two gangs. There are alarming parallels between the threats and abuse at the Mole incident and the offending at Cross Street later. Mr Rippon was threatening to stab the occupants of the car in the face with his knife, which suggested that serious injury if not death was contemplated. Ms Rameka was prominent in the Mole incident. She was yelling the slogans and “dogshit”. She must have known that the knife was in the car. All three witnesses at the Mole described Mr Rippon in the front passenger’s seat brandishing a butcher’s knife. Mr Rippon would have been seated directly in front of Ms Rameka. We think the jury were entitled to infer from the Mole incident that the occupants of the car were by that time operating under a common intention to assault suspected Mongrel Mob associates and that Ms Rameka was a part of that.
[132] We note that there was some argument about whether or not there was a baseball bat in the car at the Mole and on Cross Street. It is not necessary for us to resolve this. All of the witnesses from the Mole saw a knife and the jury was entitled to find that Ms Rameka was aware of it.
[133] After leaving the Mole, the appellants drove to Gibbons Crescent. A Black Power gathering was taking place there. The incident there formed the basis of the intentional damage charge. Ms Goodlet asked us to infer from the fact Ms Rameka was acquitted of this offence that the jury must not have convicted on the basis of s 66(2). As discussed above, we disagree that this logically follows.[23] As the prosecutor accepted in her closing address, the appellants would not have expected to encounter Mongrel Mob members at a Black Power gathering. We do not see this incident as involving the advancing of the common purpose. The jury may have concluded that Mr McCallum’s actions were unrelated to the common purpose.

Section 66(2) - conclusion

[134] A common purpose does not have to be constant from the time it is formed until it is executed. The fact that the appellants may have acted outside of the common purpose, such as going back to Gibbons Crescent does not mean they did not hold the common purpose alleged by the Crown. On reviewing the main events, we are satisfied that there was sufficient evidence for the jury to convict under s 66(2).
[135] We reject the argument by Ms Goodlet that the prosecutor’s purported identification of Ms Rameka at the Countdown incident in her closing address and the publication of the Wanganui Chronicle article made the impact of the evidence more damaging for Ms Rameka and thus led to a miscarriage of justice. For the reasons given above we think the Judge’s directions on these issues corrected any prejudice.[24] The jury was entitled to convict on the basis of s 66(2).
[136] Accordingly we dismiss that ground of appeal by Ms Rameka.

Unreasonable verdict: Ms Ahsin

[137] Although Mr Sainsbury focused on the withdrawal issue in his submissions, he also suggested that the guilty verdict for Ms Ahsin was unreasonable on the evidence.

Party under s 66(1)

[138] We are satisfied that there was a sufficient evidential basis for a conviction under s 66(1). In particular, as discussed above, Ms Ahsin drove the car and parked near the victim. She then drove the participants away afterwards. Mr Sainsbury emphasised that there was no evidence that Ms Ahsin opened the boot of the car, and that there was limited evidence that she reversed the car. But even if those points are accepted, we do not consider that there is any substance to the complaint that the guilty verdict under s 66(1) was unreasonable given Ms Ahsin’s participation by driving the car and manoeuvring it into place to facilitate the attack on Mr Kumeroa and yelling. That makes it strictly unnecessary to consider Ms Ahsin’s arguments under s 66(2). However we deal with the points raised by Mr Sainsbury, since they might also have implications for Ms Rameka and Mr Rippon.

Party under s 66(2)

[139] Mr Sainsbury also argued that there was insufficient evidence of a common purpose as alleged by the Crown under s 66(2). We are satisfied that all of the occupants of the car must have been part of the common purpose. As the driver of the Mitsubishi, Ms Ahsin was high-beaming cars and following them to the Mole. At the Mole, she drove the Mitsubishi car up and down and facilitated abuse and threats being yelled at the occupants of the cars parked there although it is not clear on the evidence that Ms Ahsin was yelling threats herself. She played the same role at Cross Street where she was also heard yelling. It was open to the jury to infer from these acts that she was part of the common purpose.

Discussion of the law

[140] Mr Sainsbury also argued that there was insufficient evidence that Ms Ahsin had knowledge of a weapon of the kind used to kill the deceased. Under s 66(2) a party must foresee death as a probable consequence, whether or not death is intended. Where death is by a weapon, the jury should first decide whether the party had knowledge of the weapon, then decide whether it was foreseeable that the weapon might be used for an act that could lead to murder. The act that causes death must not be of a fundamentally different type to that foreseen.
[141] We first deal with the New Zealand authorities. R v Hartley involved s 66(1) parties to manslaughter.[25] In that case, this Court questioned whether it would be necessary for s 66(2) parties to have knowledge of the knife used to kill the victim, where they had knowledge that other weapons, including bars and poles, would be used. The Court did not resolve the issue. However, it cast some doubt on the English approach as reflected in R v Uddin,[26] which we discuss below.
[142] In R v Vaihu Chisholm and Heath JJ held that a s 66(2) party to a common assault case did not have to have knowledge of the existence of weapons.[27] It was enough for the Judge to direct that the party must know that there was a likelihood of serious harm, and that on the facts there was sufficient evidence for the jury to infer that without reference to the weapon. They expressly left open situations where the victim is killed.
[143] William Young P wrote separately and noted that in some cases it will not be possible for a rational jury to infer that a particular defendant had the required knowledge unless it was sure that the defendant was aware members of the group were armed.[28] Whether knowledge of the weapon is required will depend on what level of common purpose is being alleged by the Crown (ie a common purpose to commit grievous bodily harm, or simply a common purpose to assault).[29]
[144] All three judges in R v Vaihu acknowledged that the knowledge needed depends on the nature of the charge. We agree. We think common assault can be distinguished from murder, given the specific intent required. Knowledge of a weapon will usually be needed before the jury can infer that the parties had knowledge that death was a probable consequence of the assault.
[145] We now turn to the English cases, which deal with the issue of whether knowledge of the particular weapon used in the assault must be required.
[146] In R v English,[30] two boys decided to attack a police officer with posts, but one then pulled out a knife and stabbed him to death. The other boy, the appellant, was found guilty of murder. The Crown conceded that the appellant did not know of the knife. The Judicial Committee overturned his conviction as he did not foresee an act of the type alleged.[31]
[147] That case is explicable because a knife is a more dangerous weapon than a post. The issue is more difficult where the party has knowledge of a dangerous weapon different from the actual weapon used.[32] It will be a question for the jury whether the weapon used took the act outside the scope of the common purpose. In some cases knowledge of another dangerous weapon may not be enough.
[148] In R v Gamble, a judge-alone trial in Northern Ireland, Carswell J found two men not guilty as accessories to murder.[33] The two had joined in the attack in the knowledge that a gun would be used to kneecap[34] the victim. The attack took place as planned but the victim ultimately died after his throat was cut by one of the other men. The Crown argued that it was sufficient that the men had intended grievous bodily harm to found the mens rea for murder. However the Judge disagreed:[35]

To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards a greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Siu v The Queen [1985] AC 168. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting.

[149] We agree with the comments of Lord Rodger in R v Rahman that the facts of that case are unusual.[36] It is a rare case where an appellant can point to a definite limited use for a lethal weapon. It seems likely that without that special factor, the appellants would have been convicted and that knowledge of the gun would have been enough, even without knowledge of the knife.
[150] In R v Smith (Wesley),[37] a group of men set upon a man in a bar and he was stabbed to death. The appeal was dismissed because the appellant knew the principal had a knife. The Full Court of Criminal Appeal suggested obiter that had the victim been killed using an armed revolver of which the appellant had no knowledge, that might have gone outside the common purpose. The greater the difference between the act actually committed and the behaviour that was within contemplation, the more likely that the jury will infer that the appellant did not foresee the murder.[38]
[151] On the other hand, in R v Rahman, the appellant had knowledge that a number of weapons were to be used in a beating, including a knife, a cricket bat, pieces of wood and a scaffold bar. The House of Lords rejected the appellant’s argument that because he did not know that the knife would be used with murderous intent, he was not liable. The jury was entitled to infer from his knowledge of the knife that he foresaw an act of the type that would be committed.
[152] In this context, we must first examine Ms Ahsin’s knowledge of the weapons. We then consider whether the jury could infer from that knowledge that she foresaw an act of the type that actually occurred.

Knowledge of weapons

[153] We accept that Ms Ahsin may not have had knowledge of the axe used to kill Mr Kumeroa, since, on the account of some of the eye-witnesses, it was secreted in the trousers of Mr McCallum. Moreover, it is not clear from the evidence that there was a baseball bat in the car, or that she knew about it. Mr Jessey Ranginui was the only witness at the Mole to mention the baseball bat. In cross-examination he admitted that he had assumed it was a baseball bat because he saw something silver:

17. You mentioned today about a bat and that it was – can’t remember your exact words – was it waved out the window?
1. Yeah I think it was waved out the window. I just see a little, little – looked like a baseball bat.
17. Which window do you say that was waved out of?
1. The driver’s side of the back seat.
17. Front back seat driver’s side okay. You said it looked like a bat. Are you unsure as to what that was that was waved?
1. Just assumed it was a baseball bat.
17. Is that because you saw it was something silver?
1. Yes, yes something waved yeah.

[154] The mention of the baseball bat by the witness at Cross Street directly contradicted the key witness for the Crown, Ms Dethierry, who was adamant that she saw an axe. Her account was backed up by Mr Uruamo, who recalled her telling him that Mr Kumeroa had been axed. Mr Dethierry had a much clearer view of Mr Kumeroa as he was assaulted on the grassy strip outside her house, whereas Mr Tarogi was across the road and his view was obstructed by the Mitsubishi car.
[155] In any case, the baseball bat, if it existed, was allegedly being held by Mr McCallum, in the back passenger seat behind the driver. Were it a baseball bat, Ms Ahsin is likely to have seen it. It may be that Mr McCallum was brandishing his axe out the window, and that Mr Ranginui saw a silver gleam and assumed it was a baseball bat, but it is not safe to draw any conclusion on this from the conflicting evidence that was before the jury.
[156] However the Crown did prove beyond a reasonable doubt that Ms Ahsin had knowledge of the butcher’s knife. All three witnesses at the Mole gave consistent descriptions of the knife. Further, Mr Rippon was yelling “I’ll stab you in the face”, which must have alerted Ms Ahsin that he had a weapon with which to do it. She must have been aware of what her front passenger was doing and the fact he had a knife. Since she did not give evidence to cast doubt on the Crown case, the jury was entitled to infer that she had knowledge of the knife.

An act of the type committed?

[157] We are satisfied that an attack with a large butcher’s knife of at least 20 cm length is capable of doing as much damage as an axe and is not fundamentally different to an attack with the butt of an axe. We think this case can be distinguished from R v English and the obiter comments in R v Smith (Wesley), where the actual act involved a more dangerous weapon than that within the knowledge of the party. In contrast, a knife is at least as dangerous a weapon as the butt of an axe. Both are capable of causing injuries likely to cause death. Even if Ms Ahsin did not have knowledge of the axe, it was sufficient for her to have had knowledge of the knife. At Cross Street, Mr Rippon was threatening to stab people in the face with the knife. Others in the back seat were yelling support. Ms Ahsin knew that there was a knife in the car. There was enough evidence for the jury to infer that she must have foreseen the possibility of an armed attack that might lead to death.
[158] We reject the argument that the guilty verdict for murder for Ms Ahsin was unreasonable on the evidence. We do, however, reiterate our earlier comment on the need to provide the jury with directions on the considerations applying to each individual accused, having regard to the facts applying to that accused.

Sentence appeals

[159] All the appellants appeal against sentence bar Mr McCallum. We will deal with each appeal individually.

Mr Rippon

[160] Mr Rippon was sentenced to life imprisonment with a 12 year minimum period of imprisonment. The starting point adopted was 11 and a half years, this was increased to take into account his previous convictions and lack of genuine remorse. He appeals on the grounds that he should have received credit for the fact that he offered to the Crown to plead to manslaughter before the trial commenced. He appeals against his lack of remorse being used as an aggravating factor and submits that his “modest” criminal record did not warrant an uplift.
[161] We do not accept that the offer to plead guilty to manslaughter justifies a reduction to his sentence. As the Judge rightly noted, no indication of that offer was put to the Court and Mr Rippon’s defence at trial was to deny he was the offender.
[162] Mr Rippon has a number of previous convictions for assault, dishonesty, obstruction, breach of a liquor ban and failing to answer bail. It would be charitable to call this a “modest” record, although we note that he has not previously served time in prison. The Judge was right to see this as an aggravating factor, but on its own it was not a significant factor.
[163] However the Judge erred in treating lack of remorse as an aggravating factor rather than as the absence of a mitigating factor.[39] The uplift applied by the Judge was six months, to get to the minimum period of imprisonment of 12 years. We consider it is necessary to correct the error arising from the incorrect treatment of the lack of remorse. Given the nature of the previous convictions, which are now the only relevant aggravating factors, we consider the appropriate step is to negate the uplift applied by the Judge.
[164] Accordingly, we allow Mr Rippon’s appeal. We quash the minimum period of imprisonment of 12 years imposed by the Judge and replace it with a minimum period of imprisonment of 11 years and six months imprisonment.

Ms Ahsin

[165] Ms Ahsin received a sentence of life imprisonment, with a minimum period of imprisonment of ten years and six months. The Judge adopted a starting point of ten years. To this he added six months to take into account the fact that she egged the men on and promoted the mood of mindless violence, and that she had some minor previous convictions.
[166] Ms Ahsin appealed against sentence on the basis that life imprisonment was not justified in the circumstances and that the ten year, six month minimum period of imprisonment was manifestly unjust.
[167] As Mr Sainsbury acknowledged in his submissions, it will be a rare case that life imprisonment under s 102 of the Sentencing Act 2002 is not imposed for murder.[40] While we agree that every case must be analysed on its facts, we do not see anything about Ms Ahsin’s case that made it inappropriate that she received a sentence of life imprisonment. The jury clearly rejected the evidence that she had withdrawn from the offending or saw it as equivocal, as do we. We do not agree that the Judge erred in placing reliance on the factors he did to justify a sentence of life imprisonment.
[168] Ms Ahsin also appeals on the basis that the end sentence was manifestly unjust (we take this to be a synonym for manifestly excessive). Mr Sainsbury argued that there was no direct evidence that Ms Ahsin assisted with burning the car the next morning, which was a factor taken into account by the Judge. We accept that is so, but it was open to the Judge to infer from the fact that Ms Ahsin had borrowed the car and was the person seen driving it at all times throughout the day that she must have been involved in its disposal. While we do not think that it was clear on the evidence that Ms Ahsin was yelling encouragement at Cross Street, and we see the other elements that prompted the Judge to apply an uplift as inherent in the offending or adequately reflected in the standard ten year minimum period of imprisonment.
[169] In those circumstances, we allow Ms Ahsin’s appeal against the imposition of a minimum period imprisonment from ten years and six months and reduce the period to ten years.

Ms Rameka

[170] Ms Rameka received the same sentence as Ms Ahsin. The Judge adopted as the starting point for the minimum period of imprisonment the statutory term of ten years. He noted Ms Rameka’s role at the Gibbons Crescent incident, that she had verbally encouraged her companions to attack Mr Kumeroa, and that her show of remorse was limited and should be viewed with some cynicism. She was also in breach of a term of community detention at the time of the offending. This was an aggravating factor, along with the gang aspect. The final sentence was life imprisonment, with a minimum period of ten years and six months.
[171] She appeals against the minimum period of imprisonment on the grounds that the Judge did not give enough weight to her youth and history. She suggests an appropriate period would have been ten years.
[172] As we have indicated above, there was not sufficient evidence for a conviction under s 66(1), although we have concluded that there was enough under s 66(2). For that reason we reject the finding of the judge that Ms Rameka “also contributed to the verbal encouragement of your male companions to attack Mr Kumeroa on the stupid pretext that he was wearing red”. We think the jury’s conviction must have rested on s 66(2). However we think the Judge was justified to make the uplift he did because of the other factors. Ms Goodlet has asked us to take into account Ms Rameka’s relative youth, but we are satisfied that it was not appropriate for any discount to be made for that, particularly in light of the fact that this was not Ms Rameka’s first offence.
[173] However, we consider that all the factors taken into account by the Judge are adequately reflected in the standard ten year minimum period. We consider that no uplift was required. We therefore allow Ms Rameka’s sentence appeal and reduce the minimum period of imprisonment from ten years and six months to ten years.

Overall conclusions

[174] We dismiss all conviction appeals. We allow Mr Rippon’s, Ms Ahsin’s and Ms Rameka’s sentence appeals. In each case the minimum period of imprisonment is reduced by six months.

Solicitors:
Crown Law Office, Wellington for Respondent

---

[1] R v McCallum HC Wanganui CRI-2008-083-2794, 12 February 2011.

[2] R v McCallum HC Wanganui CRI-2008-083-2794, 8 December 2009 per Dobson J (Pre-trial Ruling).
[3] Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.
[4] R v McCallum HC Wanganui CRI-2008-083-2794, 3 September 2009.
[5] At [43].
[6] R v Vagaia [2008] 2 NZLR 516 (HC) at 15.
[7] Moran v R [2010] NZSC 23, [2010] 2 NZLR 508 at [38]–[42].
[8] At [40].
[9] R v McCallum HC Wanganui CRI-2008—2794, 7 December 2009 (Minute No 4).

[10] This and later references to “incite, aid or encourage” are shorthand references to the forms of conduct in s 66(1) by which a person can be liable as a party. The full wording is “aiding...to commit the offence”, “abets...in the commission of the offence” and “incites, counsels or procures another person to commit an offence”.
[11] See [96]–[97] below.

[12] See below at [133].
[13] R v Pink [2001] 2 NZLR 860 (HC).
[14] At [14].

[15] At [22]. These requirements were accepted by this Court in R v Ngawaka CA111/04, 6 October 2004 at [14] and largely endorsed in R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299 at [66] – [69]. Hartley was a s 66(1) case.

[16] A P Simester and W J Brookbanks Principles of Criminal Law (3rd ed,Thomson Brookers, Wellington, 2007) at 196.

[17] See the alternative approaches in White v Ridley [1978] HCA 38; (1978) 140 CLR 342 and R v Mitchell [2008] EWCA Crim 2552 [2009] 1 Cr App R 31 (CA).
[18] See [65] above.

[19] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [87]; approved in R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [15].
[20] R v Owen at [13].
[21] See [59]–[79] above.
[22] At [36].
[23] Above, at [63].
[24] See above at [33] and [42].
[25] R v Hartley [2007] NZCA 31, [2007] 3 NZLR 299.
[26] R v Hartley at [54]; R v Uddin [1998] EWCA Crim 999; [1999] QB 431 (CA).
[27] R v Vaihu [2009] NZCA 111 at [44]–[45].
[28] At [87]–[88].
[29] At [93]–[94].
[30] R v English [1999] 1 AC 1 (PC); cited with approval in R v Hartley.
[31] See discussion in R v Rahman [2008] UKHL 45, [2009] 1 AC 129 at [10]–[13].

[32] See discussion in Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CA167.23(3)].
[33] R v Gamble [1989] NI 268; approved in R v Powell (Anthony) [1999] 1 AC 1 (HL).

[34] Kneecapping involves shooting bullets at kneecaps or other joints so as to cripple but not kill the victim.
[35] R v Gamble at 284.

[36] R v Rahman at [40] per Lord Rodger, see also at [29] per Lord Bingham, with whom Lord Scote agreed.

[37] R v Smith (Wesley) [1963] 1 WLR 1200 (CA); affirmed in R v Rahman at [60].
[38] See R v Rahman at [16] per Lord Bingham.
[39] Sentencing Act 2002, s 9(2)(f).

[40] See for example R v Smail [2007] 1 NZLR 411 (CA) where life imprisonment was imposed on a “mercy killing” of the appellant’s paraplegic friend.