Tere v R [2013] NZCA 282 (4 July 2013)

Last Updated: 12 July 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 462/2012 CA496/2012 CA527/2012 [2013] NZCA 282

BETWEEN

TERENCE MARIO TERE CHRISTOPHER JACOB JUNIOR SHADROCK MAKA UHIA TUIKOLOVATU Appellants

AND	THE QUEEN Respondent

Hearing:	20 June 2013
Court:	Randerson, Courtney and Dobson JJ
Counsel:	L O Smith for Appellant Tere C B Wilkinson-Smith for Appellant Shadrock M B Meyrick for Appellant Tuikolovatu J M Jelas for Respondent in all appeals
Judgment:	4 July 2013 at 2:00pm

JUDGMENT OF THE COURT

All three appeals against conviction are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction Background facts The trial The Crown case The defence case The summing-up The first ground of appeal (misdirection on degrees of murder) Appellants’ submissions Crown’s submissions in response Discussion Conclusions on first ground of appeal The second ground of appeal (lack of a tripartite direction) The appellants’ submissions The summing-up Conclusions on second ground of appeal The appeal by Mr Tuikolovatu Conclusion on Mr Tuikolovatu’s separate appeal ground Result

[1] [5] [10] [10] [13] [17] [24] [24] [33] [37] [49] [59] [59] [64] [67] [70] [92] [99]

Introduction

[1] These three appeals against conviction arise from an incident in a South Auckland carpark on 16 June 2008 which resulted in the death of the victim Ms Wang. The principal offender was the appellant Mr Shadrock who snatched Ms Wang’s handbag. While Mr Shadrock was attempting to leave the carpark in a stolen vehicle, Ms Wang was struck by the vehicle causing injuries from which she later died. Mr Shadrock was convicted of murder. The appellants Mr Tere and Mr Tuikolovatu were alleged to have been accessories after the fact to murder.
[2] The appellants were convicted after their first trial but their convictions were later set aside and a retrial ordered.^[1] The appellants were again convicted by a jury at their retrial before Brewer J. Mr Shadrock was later sentenced to life imprisonment with a minimum period of imprisonment of 12 years.^[2] Mr Tuikolovatu was sentenced to 18 months imprisonment. No further penalty was imposed on Mr Tere since he had already served the sentence of home detention imposed after the first trial. Two other men, Messrs Lemanu and Tekanawa, were jointly charged with Mr Tere as accessories after the fact. They were both convicted but have not appealed since the retrial.
[3] The appellants have all appealed against conviction. The principal grounds for Mr Shadrock’s appeal are:

• (a) The Judge misdirected the jury by referring to the concept of degrees of murder which prevails in the United States.
• (b) The Judge wrongly omitted to give a tripartite direction.

[4] Mr Tere and Mr Tuikolovatu support Mr Shadrock’s appeal since his conviction for murder is an essential element in their convictions as accessories. In addition, Mr Tuikolovatu submits that his conviction was unreasonable or not supported by the evidence.

Background facts

[5] Mr Shadrock was the driver of the four wheel drive Nissan vehicle stolen for the purpose of effecting bag snatches. Just before 3.30 pm on Monday 16 June 2008, the vehicle driven by Mr Shadrock and a second vehicle (a Mitsubishi) occupied by Messrs Tuikolovatu, Lemanu, Tekanawa and a Mr Harris entered the carpark at the Manukau shopping centre.
[6] Ms Wang had been shopping and returned to her parked vehicle at about 3.30 pm accompanied by her eight year old son. She put her handbag into the vehicle. She was then approached by Mr Shadrock who seized the handbag and ran back with it to the Nissan vehicle. Ms Wang pursued Mr Shadrock and approached the Nissan. Mr Shadrock reversed the vehicle at speed to get away but the vehicle’s exit from the carpark was blocked by an oncoming vehicle. Mr Shadrock then accelerated the vehicle forward. It struck Ms Wang causing her to fall backwards and hit her head on the ground. She died from those injuries in the early hours of the following day, Tuesday 17 June 2008.
[7] The occupants of the Mitsubishi vehicle had no direct involvement in the incident. They left the carpark in the Mitsubishi along with Mr Shadrock’s vehicle.
[8] The next day (17 June 2008), Mr Shadrock hid the stolen handbag at Mr Tuikolovatu’s address. The police located the handbag there during a search on 19 June 2008. All the cash had been removed. The Crown case was that Mr Tuikolovatu knew that Ms Wang had died and permitted Mr Shadrock to hide the bag to assist Mr Shadrock to avoid detection.
[9] The Crown alleged that Mr Tere set fire to the Nissan vehicle on 18 June 2008 to assist Mr Shadrock to destroy evidence relating to the offending.

The trial

The Crown case

[10] The Crown did not suggest that Mr Shadrock intended to kill Ms Wang in terms of s 167(a) of the Crimes Act 1961 but relied instead on s 167(b) and (d). For convenience, we set out s 167 in full:

167 Murder defined

Culpable homicide is murder in each of the following cases:

(a) if the offender means to cause the death of the person killed:

(b) if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:

(c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:

(d) if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.

[11] The Crown alleged that Mr Shadrock had stolen the Nissan for the criminal purpose of snatching bags in the carpark. After he had stolen Ms Wang’s bag, he became aware that she was pursuing him. When Mr Shadrock found his way backwards out of the carpark was blocked, he drove the Nissan forward with his foot down knowing that Ms Wang was somewhere in front of his vehicle. The Nissan was a large heavy vehicle and driving it in those circumstances led to the inference that Mr Shadrock intended to cause bodily injury to Ms Wang and that he knew there was a real and substantial risk of her death if the vehicle struck her. Mr Shadrock had proceeded with that knowledge and was reckless as to whether Ms Wang’s death ensued or not. As such, he was guilty of murder under s 167(b).
[12] Alternatively, the Crown submitted in terms of s 167(d) that Ms Wang’s death resulted from her being struck by the Nissan vehicle. That was so closely related to the theft of the handbag as to be part of it. When Mr Shadrock drove forward, he had an actual and conscious appreciation that there was a real and substantial risk of Ms Wang’s death if his vehicle hit her. That would be sufficient to constitute murder under s 167(d) even if Mr Shadrock might have wished to get away from the scene without hurting Ms Wang and even if he did not necessarily mean to cause her any injury.

The defence case

[13] Mr Shadrock acknowledged that he was guilty of manslaughter but denied that he had either of the murderous intents relied upon by the Crown. His counsel submitted that Mr Shadrock did not have any intention to harm Ms Wang or anyone else. That was consistent with his statement when interviewed by the police. His plan was to snatch a bag and, having done so, he intended to leave the carpark and drive away. When his vehicle was blocked he drove forward very quickly. His counsel suggested that the vehicle was moving at about 20 kilometres per hour. On the evidence, the defence said Ms Wong’s death had resulted from a glancing blow. It was a reasonable possibility that Ms Wang was off to one side of the vehicle (as Mr Shadrock had told the police when interviewed). It was also reasonably possible that Ms Wang had been clipped by the wing mirror. The defence emphasised that it was a wet day with poor visibility. Everything happened in a very short space of time, it being common ground that the critical events leading to Ms Wang being knocked over took only about two seconds. In these circumstances, Mr Shadrock did not appreciate the risk of fatal injury to Ms Wang.
[14] A key point at trial was Ms Wang’s precise location at the time of impact. Was she more to the front of the bonnet of Mr Shadrock’s vehicle than around to the side of it as the Crown suggested or was she more off to one side as the defence suggested? A factual conclusion on this issue was significant since the Crown contended that if Ms Wang was towards the front of the vehicle as he drove towards her then he must have seen her and appreciated there was a real risk of fatal injury. On the other hand, if she was more to the side and was moving about as the defence contended, there could have been at least a reasonable doubt about Mr Shadrock’s appreciation of the risks involved.
[15] There was a substantial body of evidence from lay witnesses. In addition, there were video images from surveillance cameras at the carpark. The quality of the video material was not particularly good and each side called expert evidence to analyse the footage and to give an opinion as to the course of events. In addition, each side called evidence from forensic pathologists as to the nature of Ms Wang’s injuries and whether that could assist in identifying Ms Wang’s location at the time of impact.
[16] The trial occupied some six weeks. It is evident from this brief summary of the competing contentions by Crown and defence that there was a realistic choice for the jury between verdicts of manslaughter and murder. Even on the Crown’s version of events, this was not a case of intentional killing. If the defence version of the facts were accepted, there was not even an intention to cause Ms Wang bodily injury in terms of s 167(b) nor knowledge by Mr Shadrock that his actions were likely to cause death while pursuing an unlawful object in terms of s 167(d). On the defence view, Ms Wang’s death was simply an unanticipated and most unfortunate consequence of Mr Shadrock’s attempt to leave the carpark after stealing her handbag.

The summing-up

[17] The first complaint made by Mr Wilkinson-Smith on behalf of Mr Shadrock is that the Judge’s reference to the concept of degrees of murder which prevails in numerous jurisdictions in the United States could have led the jury to believe that there was a graduated scale of seriousness in the various forms of murder described in s 167 of our Crimes Act. We refer to this in more detail below but, in essence, counsel’s submission was that a juror who might otherwise have been of the view that a manslaughter verdict was appropriate, could have been influenced to agree to a verdict of murder in the mistaken belief that murder under s 167(b) or (d) would attract a lower penalty than that applicable to a deliberate intention to kill under s 167(a).
[18] The relevant passages in an otherwise orthodox summing-up are as follows:

[27] Let’s look at count 1, murder. I need to introduce that by talking a bit about, in a general way, the law of murder.

[28] The law can be simplified by saying that murder is the unlawful killing of a person by another person where the killer has what the lawyers have called “a murderous intent”.

[29] Now, juries find this difficult so let me put it this way. I imagine that you have all heard the expression “degrees of murder”. You will have seen American TV programmes where they talk about “murder in the first degree” and “second degree murder” and so on. Well, in New Zealand we don’t have degrees of murder. We just have one offence called murder, but it has more than one definition. There is more than one way that you can approach the crime of murder. We don’t call those different definitions “degrees of murder”, but really if you looked at what, say, in America they call “degrees of murder” they are probably all covered but we just call it murder.

[30] For example, in America they might call “first degree murder” a deliberate unlawful killing. Somebody decides to kill another person and they take a gun and they search them out and they shoot them dead quite deliberately. In America they might call that first degree murder. In New Zealand we call that murder. We just have a little definition that deals with a deliberate killing under those circumstances.

[31] In this case, we are concerned with two of the other definitions of murder, which in another jurisdiction might be called second degree murder and third degree murder, but we don’t refer to those sorts of labels. We just have the definitions. In this case, the Crown has brought its case against Mr Shadrock by saying that he has committed murder under either of the two definitions which I will come to.

[19] The Judge then referred the jury to a question trail he had prepared and distributed to them. There is no issue that the questions identified for the jury in relation to ss 167(b) and 167(d) were expressed in conventional and accurate terms.
[20] He then went on to say:

[34] Let me say this in general terms. A moment ago I gave the definition of murder which would be a planned and deliberate unlawful killing – shooting with a gun. That is not the sort of murder that is alleged against Mr Shadrock. There is another form of murder, and that is that if a person does an act which he intends to cause bodily injury, and he knows that the bodily injury he intends to cause is likely to result in death, and he takes the risk, he goes ahead and does it anyway, well if death results then that is murder. It doesn’t require a deliberate intent to kill. It requires a lesser intent. It requires an intent to do an act which is intended to cause bodily injury where the consequence of that bodily injury is known to be likely to cause death and where the person doing the act is reckless whether death ensues or not.

[21] After further explaining the concept of murder under s 167(b) in conventional terms, the Judge referred the jury to the “second definition” of murder under s 167(d), again by reference to the question trail.
[22] The Judge continued:

[39] I told you that we could start with the definition of a planned and deliberate killing, and I have told you that that is not what is alleged against Mr Shadrock in this case. I have just gone through with you the first of the definitions that is said to apply and that requires a lesser intent, which is an intention to cause bodily injury knowing that it was likely to cause death and being reckless whether death ensued or not.

[40] We now come down to a different possibility and that is that he knew that at the time that he drove forward that his actions were likely to cause the death of Mrs Wang. So it doesn’t require an intention to actually cause her bodily injury. It doesn’t require an intention that he actually intended to kill her, of course. What it requires is that he knew at the time that he drove forward that his actions were likely to cause the death of Mrs Wang, and that means that he had an actual and conscious appreciation that there was a real and substantial risk of the death of Mrs Wang.

[41] Now, that’s the intention part. I now need you to focus on 2(b), which is “the hitting with the motor vehicle was [so] closely related to the theft of the handbag as to be part of that offence”. The reason why I say that is that the law only allows a person to be considered for murder under this lesser intention if the death occurred in the context of an offence such as theft. For 2(b), the issue is whether the driving that caused Mrs Wang’s death was still part of the theft of the handbag.

[23] The Judge ended this part of the summing-up by explaining to the jury that they needed to be satisfied that the collision with Ms Wang was sufficiently related to the theft of her handbag to be treated as part and parcel of the same incident.

The first ground of appeal (misdirection on degrees of murder)

Appellants’ submissions

[24] Mr Wilkinson-Smith submitted that the consequences of a conviction are extraneous and irrelevant to a jury’s consideration of guilt. Relying principally upon Commonwealth authority he submitted that this proposition was well-established. The jury’s task is to consider the verdict based solely upon the evidence adduced at trial, uninfluenced by the consequences of a verdict. As counsel put it, this might cut both ways. For example, if a jury were influenced to acquit an offender out of concern about the severity of the likely penalty, jurors would not have acted in accordance with their oath to try the offender on the evidence alone. Equally, it would not be proper for a jury to convict out of concern that the offender might otherwise escape punishment. Counsel drew our attention to cases where a jury has raised issues of clemency resulting on some occasions in guilty verdicts being quashed. We discuss these below along with cases where insanity is pleaded as a defence.
[25] Mr Wilkinson-Smith submitted that members of the jury would be likely, through the media and television in particular, to have some familiarity with the United States jurisdiction which has a complex legal system in which federal and state penal codes have a range of penalties for murder of varying application. He produced an analysis of the available penalties for first and second degree murder in a range of states. This shows, for example, that many of the states, but not all, provide for the death penalty or life without parole for first degree murder. For second degree murder, none of the states surveyed provide for the death penalty. Rather, most provide for life imprisonment or a lengthy term of years. With the exception of Florida, third degree murder is not a statutory or legal phrase in any of the states or in the federal jurisdiction. Instead, it is a term often used informally to describe the offence of voluntary manslaughter. Penalties for voluntary manslaughter only rarely provide for life imprisonment and, in most cases, there is a fixed maximum term of years available.
[26] Mr Wilkinson-Smith submitted that the Judge’s directions as to second and third degree murder effectively distinguished Mr Shadrock’s case from first degree murder which is known to be the most serious form of murder in the United States with very serious consequences in terms of sentence. The jury would know that second and third degree murder were less serious forms of murder in the United States. It would be logical for the jury to conclude that those convicted of second or third degree murder would receive lighter sentences. Counsel submitted that the reference to the jurisdiction in the United States was not an accurate comparison with the jurisdiction in New Zealand. The comparison may have been a factor in convincing some jurors to support a guilty verdict for murder when they might otherwise have opted for a verdict of manslaughter. Jurors may have reached this view believing Mr Shadrock would receive a lighter sentence for murder under s 167(b) or (d) than he would have if charged under s 167(a). In consequence, Mr Shadrock was deprived of a fair trial and a miscarriage of justice had arisen.
[27] After the summing-up, Mr Wilkinson-Smith raised with the Judge his concern about the references to degrees of murder in the United States. He submitted that the jury should be recalled. However, the Judge declined to do so. The submissions made by Mr Wilkinson-Smith and the Judge’s response were recorded:

[7] Mr Wilkinson-Smith’s concern is that an unintended consequence of the use of this analogy could be that the jury might conclude that the case before them involves types of murder which are less serious than other types. He goes on to express concerns that the jury might consider that Mr Shadrock might, if convicted, be subject to less serious punishment regimes than he otherwise would. He submits that the US example is problematic; that State laws vary – some have mandatory penalties; the jury should not be thinking along such lines.

[8] Mr Wilkinson-Smith submits that I should recall the jury to tell them that the reference to United States television programmes should be put to one side; that they should not be making comparisons of law; that there is just one class of murder; that the jury does not need to think of ranking types of murder. His concern is that the jury might think this case is “murder-lite”. It is not. It is just that our law has at least four different roads to the same offence.

[9] I understand Mr Wilkinson-Smith’s concern. It is not one which had occurred to me. I used the analogy solely to explain how there can be more than one pathway to murder. I am of the view that if I were to get the jury back now and try to close off the areas of speculation which concern Mr Wilkinson-Smith, I run the risk of making the situation worse. I do not, for my part, think that the concerns Mr Wilkinson-Smith has raised have substance. My recollection of what I said is that the jury might therefore better understand why it is there are different definitions or pathways to murder in New Zealand but there is only one offence of murder. Accordingly, I will not bring the jury back on that point.

[28] Mrs Smith, representing Mr Tere, supported Mr Wilkinson-Smith’s submissions on this point. She submitted that the jury would assume that second and third degrees of murder were less serious than the first degree murder and that they would attract lesser penalties. This was prejudicial to Mr Tere because a judicial direction diminishing the seriousness of the crime of murder would have the tendency to encourage a guilty verdict.
[29] Mrs Smith drew our attention to the Law Commission’s consideration in 2000 of a Bill proposing degrees of murder. The Commission concluded that it would complicate the law by introducing difficult distinctions and would increase the danger of inconsistent and compromised verdicts. The Law Commission presented a research paper entitled Battered Defendants Victims of Domestic Violence who Offend which stated: ^[3]

146 The Bill was introduced in 1996. It defines as murder in the first degree, culpable homicide that is intended and is committed in a particularly sadistic, heinous, malicious or inhuman manner. Murder in the second degree is defined in the same terms as the existing definitions of murder. Murder in the third degree is culpable homicide committed under provocation or the influence of alcohol or drugs. Manslaughter is defined as culpable homicide not amounting to murder in the first, second or third degree.

[30] The Commission noted that the main aim of the Bill was to distinguish between different levels of culpability and allow for different bands of sentencing. The Commission’s conclusion was expressed in these terms:

150 ...the Bill in its current form would create new problems in an already complex area of the law. The proposed redefinition of murder and manslaughter complicates the law by introducing different distinctions. This complication, coupled with a wide power for juries to make statements related to sentencing, increases the danger of inconsistent and compromised verdicts. It also significantly changes the role of juries and makes their task more difficult. Significant problems in the existing law of homicide are not addressed by the Bill, and in some cases are compounded. Reform of the law of homicide needs greater consideration than is achieved by the Bill.

[31] Mrs Smith submitted there was a real risk that the jury would have been confused by the analogy with the provision in the United States of degrees of murder which were graduated according to seriousness and carried a range of penalties corresponding to the level of culpability. The Judge had recognised the difficulty that had arisen and ought to have recalled the jury and directed them to completely disregard what had been said in that respect. The jury should also have been directed that they ought not to be making comparisons with the law in other jurisdictions. The jury ought to have been told that, under New Zealand law, there was no concept of ranking of different types of murder and they should disregard the consequences for the accused of a murder conviction.
[32] For Mr Tuikolovatu, Mr Meyrick supported the submissions made by counsel for the other appellants on this ground.

Crown’s submissions in response

[33] Ms Jelas responded on behalf of the Crown. She did not dispute the general principle relied upon by Mr Wilkinson-Smith but her overall submission was that the jury would not have misunderstood the directions given by the Judge in his summing-up and there was no material risk of a miscarriage of justice. She submitted that the analogy with degrees of murder in the United States was instructive for the purpose of defining the different routes to murder. They were merely illustrative and were followed by clear and unchallenged directions on the definitions under s 167(b) and (d). These additional directions would have cemented the notion that under New Zealand law, an offender may be guilty of murder in more than one way.
[34] Ms Jelas emphasised that the jury was provided with a questionnaire that set out the charges under s 167(b) and (d) along with notes to assist. In line with the decision of this Court in Simpson v R, the Court had defined the issues for the jury in fact-specific terms, tailored to the case. ^[4] A summing-up should not be reduced to any particular words, it is the overall impression made in the minds of the jury as a whole that is important.^[5]
[35] Ms Jelas submitted that the cases relied upon by Mr Wilkinson-Smith could be distinguished. In the insanity cases, a jury might be concerned with the accused being released into the public. In the leniency cases, the jury has specifically asked the Court about leniency. Neither situation arose in the present case.
[36] Ms Jelas concluded by submitting that the Judge was legitimately trying to help the jury with the difficult question of distinguishing between the different routes to the offence of murder under the Crimes Act. The analogy with the law in the United States was simply part of that process. Drawing the jury’s attention to the differences in penalties would have distracted the jury from the real purpose of the illustration.

Discussion

[37] It is well established that the sole concern of a jury is the determination of guilt or innocence. The jury must not be distracted by extraneous considerations. In particular, any penalty or other consequence that may be imposed upon conviction is not the jury’s concern. This principle was stated by the Privy Council in Attorney General for the State of South Australia v Brown^[6] and has been adopted by this Court in several cases as a general principle. An exception has been recognised for insanity cases as we later discuss.
[38] The rationale for the general principle is the risk that the jury’s processes may be compromised by irrelevantly taking into account the consequences of a verdict when considering whether guilt is proven to the required standard. An example of the principle in operation is the decision of this Court in R v Sharplin.^[7] During the course of its deliberations in an assault case, the jury asked the Judge whether it could find the appellant guilty but with a request for leniency. After discussion between the Judge and counsel, the jury were advised by the crier that they could bring in such a verdict. The jury duly did so.
[39] On appeal, this Court considered it to be well established that, in the absence of any inquiry on the question of a rider before verdict, the court will proceed on the assumption that the verdict has been reached after a proper consideration in accordance with the directions of the judge and that no improper compromise has been made by the jurors. The court follows its usual practice of not inquiring into the jury’s decision-making process if it has the outward appearance of regularity.
[40] However, the Court went on to endorse the English practice that where a jury had made a request of this kind, the jury should be told that they must try the case on the evidence according to their oath and leave questions of penalty to the judge. The jury could also be informed that if they considered it to be appropriate, having returned their verdict, to make some representation by adding a rider about leniency, the judge would give it such attention as he thought proper.
[41] The Court continued:^[8]

However, in circumstances in which the jury has indicated uncertainty as to its processes and inquired about the approach which may be taken on sentencing, we are of the view that the Judge ought to go beyond merely confirming that the jury may recommend leniency. We consider that the English practice is soundly based and should be followed. If it is not, as in the present case, there is room for anxiety about whether the jury's processes may have been compromised by irrelevantly taking into account the likelihood of a lenient sentence when considering whether guilt is proven to the required standard. The jury's apparent doubt about its position gives rise to the concern.

[42] The Court quashed the conviction on the basis that it was possible that some of the jury may have been influenced to find the appellant guilty because of their understanding about the likely sentence when, before the inquiry about leniency, they were not prepared to do so on a consideration of the evidence. The verdict was regarded as unsafe.
[43] The principles discussed in Sharplin were followed by this Court in R v Childs.^[9] This was a similar case where, during deliberations, the jury sought a direction from the Judge as to whether the jury could record that ACC procedures relevant to the case were inadequate and asked the Court to consider clemency. The Judge’s response conveyed through the Registrar was that there was a limit on what the Judge could say in court about the adequacy of the ACC procedures but he agreed with the jury’s view on those procedures and also on the clemency issue. The convictions subsequently entered were set aside on the footing that there was a risk that the jury interpreted the Judge’s message to mean that if they found the appellant guilty, a lenient sentence would be imposed. Far from reminding the jury that they should return their focus to guilt or innocence alone, the Judge’s reply had reinforced any tendency to be swayed by possible outcomes.^[10]
[44] Mr Wilkinson-Smith also cited United States authorities which supported the general principle.^[11]
[45] A recognised exception to the general principle applies in insanity cases. In R v Lorimer, this Court recognised that, despite the usual principle that the consequences of a verdict are not the concern of the jury, it might be necessary in some circumstances for a judge to refer to the legal consequences of a successful plea of insanity.^[12] That is because of the risk that a jury might be reluctant to find an accused not guilty on account of insanity by wrongly concluding that such a verdict would result in the accused being immediately released into the community.
[46] This Court went further in R v Rotana where the appellant had been convicted of murder despite the medical evidence supporting his plea of insanity.^[13] The jury’s guilty verdict was set aside as unreasonable having regard to the evidence. However, the Court also commented on a further point raised on appeal. This was that the trial Judge had refused a request by defence counsel to tell the jury of the consequences of a verdict of acquittal on account of insanity. The Court said:^[14]

In our view a Judge may properly have regard to the likelihood that jurors will take into account the practical consequences of their verdict, even though they are not relevant to their deliberations. They are generally responsible citizens and with many it may be asking too much of them to dismiss from their minds the thought that a verdict of not guilty on account of insanity could mean a dangerous offender's unrestricted return to the community, with the potential for further serious violence or homicide.

[47] Mr Wilkinson-Smith also referred us to an article published in the Boston University Law Review in which the author considered the reluctance of jurors to convict of capital offences carrying a mandatory sentence of capital punishment.^[15] The article concluded:^[16]

Antebellum Americans, then, whose experience with mandatory capital punishment was extensive, tended to account it as a dangerous failure. They were satisfied that mandatory capital punishment did indeed have a deterrent effect; it deterred jurors from convicting palpably guilty men.

[48] Our attention was also drawn to an article discussing juries in the Canadian criminal trial context.^[17] The author noted that:^[18]

... case law has established that it is legal error to inform the jury about possible punishment prior to its verdict on guilt for any charge, including seconddegree murder.

Conclusions on first ground of appeal

[49] We accept that the leniency and insanity cases may be readily distinguished on the facts since no issues of that kind arose in the present case. However, we consider that the general principle that juries must confine themselves to a consideration of guilt or innocence and disregard the consequences of their verdicts was at least potentially engaged in this case by the Judge’s reference in his summingup to degrees of murder.
[50] We accept that the Judge was endeavouring to illustrate, by way of analogy with the United States system of criminal justice, how the offence of murder might be established under the provisions of s 167 of our Crimes Act. However, the analogy carried with it the potential risk that the jury would receive the impression that under New Zealand law there were varying levels of seriousness of the offence of murder, depending on which of the provisions of s 167 were found to apply. Putting it another way, there was a risk that the jury might have the impression that there was a graduated scale of seriousness commencing with a deliberate killing under s 167(a) and reducing in seriousness through subss (b), (c) and (d) which require lower levels of intent to be established. We agree with the submissions of the appellants’ counsel that at least some members of the jury would be likely to have had some familiarity with the United States system of justice and an understanding that lesser punishments would attach to second and third-degree murder than to firstdegree murder.
[51] However, we are satisfied there was no material risk that a miscarriage of justice arose as a result of the illustration the Judge chose to adopt. First, the Judge made it very clear that “we don’t have degrees of murder” in New Zealand. He told the jury that “we just have one offence called murder, but it has more than one definition”. It was unfortunate that the Judge went on to compare murder under s 167(a) to first-degree murder and to suggest that two of the other definitions of murder under s 167 “in another jurisdiction might be called second degree murder and third degree murder””. But he went on to say that “we don’t refer to those sorts of labels”.
[52] Second, the Judge immediately went on to take the jury through the jury questionnaire which was correctly focused on the elements required to establish murder under s 167(b) and (d). There is no challenge to the correctness of the questionnaire which was explicitly linked to the facts of the case at hand. Nor is there any criticism of the Judge’s orthodox directions in his summing-up as to the legal elements the Crown was required to prove.
[53] Third, while the Judge referred to “lesser intents” when directing the jury as to the elements of s 167(b) and (d), he correctly stated the legal position in that respect. There is no need under s 167(b) to prove an intention to kill but it was necessary for the Crown to prove an intention by Mr Shadrock to cause bodily injury to Ms Wang and that he appreciated the risk of her death but had proceeded nevertheless. In respect of s 167(d), the Judge correctly directed the jury that there was no requirement that the Crown prove that Mr Shadrock intended to kill Ms Wang or to cause her bodily injury. Further, the Judge directed the jury that it did not matter whether, in effecting the unlawful object of stealing Ms Wang’s handbag, Mr Shadrock may have desired not to hurt her. It was sufficient to show that, in effecting his objective, his vehicle struck Ms Wang causing her death and that he knew his actions were likely to cause her death.
[54] Fourth, the Judge then embarked on an extensive summary of the competing positions of the Crown and defence on the key questions of fact the jury had to determine by reference to the jury questionnaire. This would have focused the jury on the elements of the offences as correctly stated in the questionnaire and appropriately anchored in the facts of the case.
[55] Fifth, as counsel accepted, there was no indication by way of jury question or otherwise that the jury might have been giving consideration to the issue of likely penalty. This is a clear point of distinction from the leniency cases in which the jury’s consideration of the consequences of conviction have been clearly signalled by a jury question prior to verdict. The Court is generally entitled to proceed on the assumption that the verdict has been reached without improper consideration of extraneous matters unless there has been some outward indication of irregularity. We accept, however, that an appellate court could intervene if it considers there was a risk of miscarriage through judicial misdirection.
[56] Sixth, the record shows that the jury applied itself diligently to consideration of the issues it was required to determine. The jury commenced its deliberations on the day following the Judge’s summing-up at about 9.30 am. During the course of the day the jury asked to see the surveillance footage of what had taken place at the carpark on a frame by frame basis. This was played to them on two occasions. At the end of the first day of deliberations, the jury retired about 5.00 pm and resumed the next day at 9.30 am before finally delivering its verdicts at 3.00 pm on the second day. While the length of deliberations and the inquiries made by the jury does not of itself provide any assurance that it has approached its task correctly, it does suggest that the jury was focused on the evidence relevant to the factual issues which were carefully and properly defined in the jury questionnaire.
[57] We are satisfied that, considered overall, the Judge’s directions and the jury questionnaire focused the jury firmly upon the elements of s 167(b) and (d) and, in the circumstances, there was no appreciable risk of a miscarriage of justice resulting from the Judge’s reference to degrees of murder.
[58] Before departing with this ground of appeal, we observe that the reference to the system of justice prevailing in the United States was wholly unnecessary and should have been avoided. We also note that the Judge had the opportunity to put the proper concerns of defence counsel at rest when those concerns were raised after the summing-up. It is a simple matter to correct inadvertent references of this kind that have the potential to be misinterpreted. It is best to do so out of an abundance of caution rather than run the risk of the verdicts being set aside on appeal.

The second ground of appeal (lack of a tripartite direction)

The appellants’ submissions

[59] Mr Shadrock did not give evidence at trial but was interviewed at length by the police on video. This was played to the jury. The transcript of the interview was some 55 pages in length. Mr Wilkinson-Smith’s submission was that the Judge ought to have given a tripartite direction along the lines recommended by this Court in the R v McI.^[19] As Mr Wilkinson-Smith acknowledged, the Court in McI was dealing with a case in which the accused had given evidence. Mr Wilkinson-Smith referred us to this Court’s decision in R v Reihana in which it was accepted that, at least in some circumstances, a tripartite direction may be appropriate where an accused has given an exculpatory statement out of court but has not given evidence.^[20]
[60] Mr Wilkinson-Smith accepted that recent decisions of this Court have moved away from any need to give tripartite directions in relation to out of court statements. For example, in R v H this Court stated:^[21]

[29] Section 366A of the Crimes Act prohibits the accused giving unsworn evidence at trial. Sworn and unsworn testimony should not be confused. While video interviews may have a “live” quality about them (as Mr Pyke emphasised), which a written statement recorded by the Police does not, unsworn out of Court statements of the accused should not be elevated for consideration along with sworn evidence, in relation to the exercise by the trial Judge of the discretion to give the tripartite direction. As Mr Hamlin rightly submitted for the Crown, any assumption or suggestion that they are to be treated as equivalent to sworn testimony could impact on the accused’s right to silence.

[30] There is thus no requirement for the tripartite direction to be given in relation to out of Court statements. We consider it would be a very rare and unusual situation indeed before fairness would demand such a direction be given in relation to an exculpatory statement made out of Court, as referred to in Reihana at [22].

[61] And, in R v Martin this Court again rejected the need to give a tripartite direction in relation to out of court statements.^[22] The Court said:

[30] Mr King accepted that “the standard tripartite direction is generally only given when an accused person gives evidence”. He submitted, however, that that direction is “philosophically ... equally applicable where an accused has given police a lengthy exculpatory statement, which if true would mean that the accused was in fact innocent”.

[31] We reject this ground of appeal. First, it is not mandatory for the trial judge to give the tripartite direction even where an accused has given evidence, still less where she has not. Secondly, the more appropriate direction in circumstances where an accused has merely given an out of court statement is the direction the judge in fact gave. Indeed, the judge’s direction was a straight lift from the judges’ benchbook. Generally speaking, an accused who elects not to give evidence on oath and not to be crossexamined cannot expect the benefit of the tripartite direction’s favourable tone.

[62] As counsel noted, this Court has confirmed that a tripartite direction is not required where an accused has merely given an out of court statement.^[23]
[63] Despite the weight of authority, Mr Wilkinson-Smith submitted that the distinction between sworn and unsworn evidence merely goes to the appropriate weight to be given to that evidence. An accused’s version of events, whether in the form of a video interview or sworn evidence still has the capacity, he submitted, to leave the jury with some measure of doubt. While recognising that the tripartite direction is advantageous to an accused, Mr Wilkinson-Smith submitted this was only because the direction logically reflected the onus and standard of proof.

The summing-up

[64] The relevant parts of the summing-up dealt with the effect of Mr Shadrock’s election not to call evidence, the status of Mr Shadrock’s police interview and the effect of acknowledged lies in that interview. The Judge said:

[189] I have already told you that the fact that Mr Shadrock elected to call evidence does not affect the onus of proof on the Crown. It just means that there is more evidence for you to consider. Likewise, none of the accused had to make a statement to the Police. Mr Tekanawa did not make a formal statement or undertake a video interview. That’s his right and you certainly take no adverse inference against him in respect of that.

[190] Just a reminder that you will have the transcripts of the statements of the accused to the Police. The transcripts are not the evidence. It is what you heard on the DVD that is the evidence, so if you think there is a discrepancy between them, it is what you heard that is the evidence. The transcripts are just to assist you with remembering.

[191] I should say that although the interviews were not given on oath and were not subject to cross-examination, they may be treated as evidence just like all the other evidence. The weight that you give to them is entirely a matter for you and, as with other witnesses, you can accept some parts of what an accused said and you can reject other parts. It is up to you.

[192] I think the number of times you have heard it means that I do not have to go into any detail about using an accused’s statement only in his case and neither for or against another accused. It is particularly important in this case.

[193] I am just about finished. I need to say something to you about lies. In his closing address to you, Mr Glubb, in particular, made reference to lies told by some of the accused. One or other of Defence counsel, I seem to recall, also talked about lies. Mr Glubb has referred to Mr Shadrock initially denying to the Police that he knew anything about what happened in the car park; to Mr Tuikolovatu telling the Police that they wouldn’t find anything in his house; and Mr Tekanawa saying to Detective Constable Jamieson that he had only just been picked up 20 or 30 minutes beforehand, whereas the Crown says he had been driving around all morning in the Primera.

[194] It will be for you to decide in each of those cases whether in fact the accused told a lie, although in the case of Mr Shadrock and Mr Tuikolovatu I do not think there is any real dispute they did. But the fact that an accused told a lie is something you are entitled to take into account just like any other evidence. However, it is important not to think that just because an accused lied on a particular issue that he must be guilty. People in the sort of situation that they were in can lie for all sorts of reasons – to cover up for someone else; to cover up for something else they had done; or simply because they panicked and blurted out something stupid. It is over to you what weight you place on any lie that you find had been told. But, as I say, do be careful about the weight you place on it or whether you give any real significance to it at all, bearing in mind that it is only one small part in this case of the overall prosecution case against the accused. And where Defence counsel have submitted to you that Crown witnesses have lied, the same factors come into account.

[65] As Ms Jelas pointed out, the Judge had earlier given a strong direction about the burden of proof and that burden remained on the Crown throughout the trial despite Mr Shadrock not giving evidence. The Judge’s direction on this issue was expressed in these terms:

[12] The fourth point, and it is very important, is that the onus of proof of the essential ingredients of each charge against each accused is on the Crown. That onus rests on the Crown from the beginning of the trial to the end of the trial. It is the Crown that has charged the accused with these offences. It is the Crown that has brought them to the Court to be tried. It is for the Crown to prove the charges. That is what the onus of proof means. There is no onus on the accused at any stage to prove anything. They are to be presumed innocent until the Crown has proved guilt. No accused needs to give or call evidence. In this case Mr Shadrock called evidence on his behalf. You also have the recorded statements the accused made to the Police and you can consider those statements as part of the overall evidence in the trial. But that does not change the onus of proof either. The fact that Mr Shadrock called evidence and the fact that accused gave statements simply adds to the evidence before you. You assess it and you give the evidence the weight that you decide that you should give it having regard to all of the evidence. But it does not change the onus of proof. The onus of proof remains on the Crown.

[66] The Judge also gave a conventional direction with regard to the standard of proof and firmly instructed the jurors that if they were not sure the accused was guilty, they must find him not guilty.

Conclusions on second ground of appeal

[67] We accept the submission made by Ms Jelas that there was no requirement in the circumstances of this case for a tripartite direction. As this Court said in R v MacDonald, a tripartite direction will usually add little to a modern summing-up, particularly where it is accompanied by written directions.^[24] The absence of a tripartite direction will only lead to a miscarriage of justice in circumstances where there is a real risk of inappropriate reasoning by the jury and it has not been adequately brought home to the jury that the accused bears no onus and that the Crown must prove the charges beyond reasonable doubt. This Court also held in MacDonald that any tendency of the jury to leap to a conclusion of guilt if they rejected the appellant’s evidence pre-supposed that the jury would ignore such directions.^[25] The assumption is that juries are conscientious in following judicial directions.
[68] There is no reason to suppose in the present case that the jury would not have carefully worked their way through the detailed jury questionnaire or that they would ignore the directions given by the Judge on the onus of proof or the status of Mr Shadrock’s police statement as part of the evidence for them to consider. In addition, as Ms Jelas submitted, the Judge directed the jury that if Mr Shadrock had lied on any particular issue in his police statement, the jury was not to conclude that he must be guilty. That was a further indication to the jury that the onus of proof remained on the Crown to prove Mr Shadrock’s guilt beyond reasonable doubt even if the jury concluded he had lied to the police.
[69] We are satisfied for the reasons given that no tripartite direction was required. Indeed, there is some awkwardness in applying the standard tripartite direction to an out of court statement. That is because the statement does not carry the same weight as sworn evidence. In cases such as this, as the Judge directed, the account given by an accused to the police simply becomes part of the overall evidence for the jury to consider. The standard directions as to onus of proof and the effect of the accused not giving evidence are sufficient. We are satisfied that there is no risk of a miscarriage on this ground.

The appeal by Mr Tuikolovatu

[70] Mr Meyrick advanced a discrete ground of appeal on Mr Tuikolovatu’s behalf. He submitted that the verdict against his client was unreasonable or not supported by the evidence. In particular, he submitted there was no proper evidential foundation to establish beyond reasonable doubt that Mr Tuikolovatu knew that Ms Wang had died at the time he assisted Mr Shadrock to hide Ms Wang’s handbag.
[71] The Crown case against Mr Tuikolovatu was that he was in the Mitsubishi van which acted as a backup vehicle at the time of the bag snatch at the carpark. The Crown adduced evidence from two witnesses^[26] who said that Mr Tuikolovatu was one of several men in the Mitsubishi soon after the bag snatch occurred. The Crown relied on those witnesses to show that Mr Tuikolovatu was aware that Ms Wang had been knocked over during the bag snatch. The Crown relied on two video interviews given by Mr Tuikolovatu to the police to establish he knew Ms Wang had died by the time Mr Shadrock brought the handbag to Mr Tuikolovatu’s house.
[72] The focus of Mr Meyrick’s submission was that it was unclear on the evidence whether Mr Shadrock brought the handbag to Mr Tuikolovatu’s property on Monday 16 June (the day of the bag snatch) or on the following day, Tuesday 17 June. The day on which her handbag was brought to his home was critical because if it had been on the Monday, Ms Wang was still alive and Mr Tuikolovatu could not have been convicted of being an accessory after the fact to murder. The Crown case was that Mr Shadrock brought the handbag to Mr Tuikolovatu’s address on the Tuesday either after or during the 6.00 pm TV news. By that stage, Ms Wang had died and the Crown said Mr Tuikolovatu knew that she had died from the extensive news coverage that had occurred by that time.
[73] Mr Tuikolovatu was interviewed twice by the police on Thursday 19 June after the police had executed a search warrant and located the handbag at his home. In the first interview Mr Tuikolovatu agreed with the interviewing officer that just prior to the location of the handbag he had denied that he had any items relating to the death of Ms Wang. When the handbag was located, he admitted that Mr Shadrock had brought it to his home and said:

“I went to do a snatch and I fucked up. Can you get rid of this?”

[74] Mr Tuikolovatu said that Mr Shadrock seemed very worried and he agreed to allow Mr Shadrock to take the handbag into his home. Mr Tuikolovatu was quite clear that this occurred on the Tuesday. He said it was getting dark. He thought it was after 6.00 pm at night. When further questioned, Mr Tuikolovatu said that he did not know where the bag had come from until he had seen it on the news.
[75] At a later point in the first interview, Mr Tuikolovatu was asked why he thought Mr Shadrock had “fucked up”. He said that Mr Shadrock told him he had hit the lady with a car but “she was alright”. Under further questioning, Mr Tuikolovatu said:

17. So he didn’t say anything about the car getting burnt or dumping it or anything like that?
1. Nah. I only seen him on Tuesday, that’s it...
17. Yeah.
1. ... I haven’t seen him since.
17. OK. And that was late afternoon?
1. Yeah, like after 6.00 that night.
17. OK. How do you guys normally get hold of each other, do you just sort of drop in on people’s houses or ...?
1. Yeah. Just random. They just pull up.
17. OK. So when you ... when he fronts up and ...um... and he tells you this stuff ...
1. Mm.
17. ... and he gives you this bag, why is it that you’re taking the bag?
1. I just thought it was normal. I just thought it was just like a bag snatch.
17. Yeah.
1. But I didn’t notice how serious it was.
17. Yep.
1. Yeah.
17. And so what was the point of you getting the bag?
1. He just thought that he could hide it here. He’s ... he was telling me, oh it’ll be good here, they [won’t] come here. Sort of like that.
17. Yeah.
1. So I just thought, oh yeah go and put it in there then.
17. Yep. So by you hiding the bag for him, or letting him hide the bag at your place ...
1. Yeah.
17. ... yep, you’re ... you’re knowing that he’s done a snatch with it, aye?
1. Yeah.
17. Yeah. Did you know at that point that that was the ... the one that the lady had got really badly hurt on?
1. No, not at that point, only afterwards.
17. But ...um... but the news came out on Monday night though aye ...
1. Yeah.
17. ... that it had happened?
1. Yeah. But I just ...
17. And he doesn’t come round to your place until Tuesday?
1. Yeah.
17. Yep.
1. I just found out on Tuesday. Cos I don’t really watch the TV. Just [one] thing, then I started watching the news on Tuesday ...
17. Yeah.
1. ... yeah
17. And was that ...um... when was ... when did you see the news on Tuesday?
1. Like at 6.00.
17. OK. Was he still at your place?
1. He was telling me, ‘oh it’s all over the news’, and all that.
17. Yeah.
1. Yeah.
17. So you guys watched the news together?
1. Nah. He just stayed in the garage. My missus was telling me.

[76] During the first interview, Mr Tuikolovatu denied going to Manukau City where the bag snatch had occurred that afternoon. On the Crown case, Mr Tuikolovatu had been present at the carpark when Ms Wang was struck as confirmed by the two Crown witnesses who saw him soon afterwards with Mr Shadrock and other associates. The Crown also invited the jury to conclude that Mr Tuikolovatu had lied by denying that any of Ms Wang’s possessions would be found at his property when the police executed the search warrant. Mr Tuikolovatu’s later admission to the police established he had lied on this topic.
[77] Mr Tuikolovatu was interviewed for a second time later on the afternoon of 19 June. By that time, the police had interviewed his partner who was said to have been certain that Mr Shadrock had come to their home on the Monday evening rather than Tuesday. This was put to Mr Tuikolovatu in the following passage from the transcript of the video interview:

17. ... and today we’ve spoken to your partner, Victoria, and she said that she was certain that ...um... the night that Chris came over wasn’t Tuesday night, but was ...
1. Yeah.
17. ... instead Monday night. What have you got to say to that?
1. Yep, probably.
17. OK. How do you know whether it was Monday or Tuesday night?
1. I’m not sure. Yep, might have been Monday night.
17. OK.
1. Yep.
17. So do you remember what you were doing Monday night?
1. Yep [nods head]
17. You do?
1. Yep.
17. Um ... well how was that different from what ... what you were doing Tuesday night?
1. I was ... whatever I said on Tuesday night.
17. OK, so you think that meeting Chris happened on what night?
1. On Tuesday it was on Monday.
17. OK, so you think that meeting Chris actually happened on Monday?
1. Yep.
17. OK. Alright. So you think that it’s more likely that Victoria is right about the day?
1. Yep.

[78] The statements Mr Tuikolovatu made to the police need to be considered alongside the evidence of the two Crown witnesses who said they saw Mr Tuikolovatu in the Mistubishi vehicle not long after Ms Wang was knocked down. Ms Chanel Ashford made a statement to the police on 21 June 2008. This was read to the jury. Ms Ashford said that on Monday 16 June she was at home with her brothers. Sometime between 12.00 pm and 3.00 pm, a green van arrived driven by Mr Tuikolovatu whom she had known for many years. She recognised the van as one she had seen in the newspaper as having been connected with the carpark incident. Following this van was a white vehicle driven by Mr Shadrock with whom she was also familiar. Soon afterwards, she saw the police helicopter heading towards Manukau City. On the 6.00 pm television news that evening, she saw the white vehicle which she recognised immediately as the one driven by Mr Shadrock when he called at her address earlier that afternoon. Ms Ashford also gave evidence of seeing some of the other accused (but not Mr Tuikolovatu) on the Wednesday in a Primera vehicle.
[79] The second Crown witness of relevance to this issue was Mr Henare Angell. He had given a statement to the police and gave evidence at the first trial. His evidence from that trial was produced in a form of a transcript and the audio record of his evidence was also played to the jury. Mr Angell knew Mr Tuikolovatu, Mr Shadrock, Mr Lemanu and Mr Tekanawa. He gave evidence of their modus operandi for bag snatches and admitted to having been involved in one himself. On Monday 16 June at about 4.00 pm he was at his grandmother’s house when a green van arrived. He thought Mr Tekanawa was driving and others in the vehicle included Mr Shadrock, Mr Tuikolovatu and Mr Lemanu. Mr Shadrock said “we cracked it” and one of them said they had just “done a snatch”. Mr Tuikolovatu was present during this conversation. That night, Mr Angell saw the 6.00 pm television news and recognised the vehicle as being one of those said to have been involved in the carpark incident. He became aware from the news report that an Asian lady had had her bag snatched and had then been run over.
[80] The next morning, Tuesday 17 June, Mr Angell said he was at another South Auckland address. He saw Mr Tuikolovatu and then a black Primera motor vehicle arrive. Mr Tekanawa and a man he knew as Daks were in the vehicle. Mr Tekanawa had the New Zealand Herald with him and said “Gee that chick died this morning”. Mr Tekanawa went on to say “Gee we done the snatch and Chris was driving and he ran her over”. Mr Tuikolovatu was present when this conversation took place.
[81] The following day, Wednesday 18 June, Mr Angell said he saw the Primera vehicle again. Mr Lemanu, Mr Tekanawa and Daks were in the vehicle. He (Mr Angell) was with Mr Tuikolovatu. The men in the Primera asked for a gas tin. Mr Lemanu asked Mr Tuikolvatu whether he had “got rid of the bag”. Mr Tekanawa said he had.
[82] When cross-examined, Mr Angell agreed with Mr Tuikolovatu’s counsel that he (Mr Tuikolovatu) had not been in the van on the Monday afternoon and that he had not been a party to the discussion about the gas tin on the Wednesday morning.
[83] At trial, the Crown relied on the evidence of Ms Ashford and Mr Angell despite rather obvious concerns about the latter’s reliability and credibility.^[27] The prosecutor invited the jury to conclude that Mr Tuikolovatu was in one of the vehicles associated with the carpark incident and that he must have been present when that incident occurred. Mr Tuikolovatu would therefore have known immediately that Ms Wang had been knocked over and had been injured. The Crown also relied on Mr Tuikolovatu’s video interviews. Mr Tuikolovatu had been very clear in the first interview that Mr Shadrock had come to his house with the bag on the Tuesday night. Particular reliance was placed on Mr Tuikolovatu’s statement to the police in the first interview that Mr Shadrock had told him that it was “all over the news”.
[84] The Crown produced a summary of the timing of media reports and the contents of those reports. This showed that TV3 reported on the 6.00 pm news that a woman had been run down in the Manukau supermarket carpark and that she was alleged to be the victim of a bag snatch. In the course of the robbery, a white four wheel drive vehicle had run over her. She was said to be in a very serious condition in hospital. There were later reports that evening on television and radio to similar effect.
[85] It was not until soon after 6.00 am on the Tuesday that the TVNZ website and Newstalk ZB reported that Ms Wang had died as a result of the injuries suffered in the incident. Around 8.00 am, the police issued a media release and called a media conference at 3.00 pm. After the conference, about 4.45 pm, the police forwarded CCTV images to TVNZ, TV3, the New Zealand Herald and other media outlets.
[86] TV1 and TV3 news reported at 6.00 pm that afternoon that Ms Wang had died and showed CCTV footage taken from surveillance cameras at the scene.
[87] Further publicity ensued in the following days, 18 and 19 June.
[88] The prosecutor submitted that Mr Shadrock’s advice to Mr Tuikolovatu that the incident was “all over the news” must have been referring to the widespread media publicity on the Tuesday rather than the limited reports on the Monday. The Crown also pointed to Mr Tuikolovatu’s description of Mr Shadrock when he arrived at his house with the bag. He was talking very fast. He was worried and “pretty paranoid”.
[89] Mr Meyrick submitted that the reference to the incident being “all over the news” begged the question as to what Mr Tuikolovatu was referring to. He may have been referring to the television news report on the Monday evening reporting the incident and the injuries suffered. Mr Meyrick pointed out that Mr Tuikolovatu said in the first interview that he did not realise how serious the matter was. This was, Mr Meyrick submitted, consistent with Mr Shadrock visiting Mr Tuikolovatu’s house on the Monday. Ms Wang was seriously injured in hospital but had not died.
[90] Mr Meyrick also submitted that in summing-up, the Judge had not done justice to this aspect of Mr Tuikolovatu’s defence. He drew attention to the fact that the Judge had referred to the prosecutor’s submission as being:

So it couldn’t be the Monday night because there had not been any news about it at all before 6 pm that day. The accused would not have known to say it’s been all over the news.

[91] Mr Meyrick submitted that this statement could not be correct. The only evidence at the time that Mr Shadrock called at Mr Tuikolovatu’s house came from Mr Tuikolovatu himself. That was after 6.00 pm but Mr Tuikolovatu had been unsure whether this was on the Monday or Tuesday night.

Conclusion on Mr Tuikolovatu’s separate appeal ground

[92] There is no dispute that the test to be applied when considering appeals under s 385(1)(a) of the Crimes Act is as stated by the Supreme Court in Owen v R:^[28]

[17] ...There is, in the end, no need to depart from the language of Parliament. The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.

[93] The Supreme Court in Owen endorsed the observations made by this Court in R v Munro^[29] and summarised these:^[30]

...

(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c) The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[94] The timing of Mr Shadrock’s visit to Mr Tuikolovatu’s house with the handbag was quintessentially a jury issue. Mr Tuikolovatu was very clear in his first police interview that the incident had occurred on the Tuesday evening and repeated that several times. That interview took place only two days after the incident in the carpark. On the Crown case, Mr Tuikolovatu was present when the incident occurred and knew Ms Wang had been knocked over. Mr Meyrick did not suggest that it was not open to the jury to conclude that Mr Tuikolovatu had either observed the incident or, at the least, became aware of it very soon afterwards on the Monday afternoon. The timing of Mr Shadrock’s visit with the handbag was not something Mr Tuikolovatu could easily have been mistaken about given the serious injury sustained by Ms Wang which ultimately led to her death.
[95] Signs of equivocation about the timing of Mr Shadrock’s visit only began to emerge later in the day after the police had interviewed Mr Tuikolovatu’s partner who suggested that it had occurred on the Monday evening rather than the Tuesday. If this had indeed been the case, the jury were entitled to expect that Mr Tuikolovatu’s partner would have been called to give evidence. She did not do so. We also observe that Mr Tuikolovatu’s statements about timing in the second interview were less than firm. Indeed they might be described as equivocal for the most part and only became firmer in response to a leading question from the interviewing officer.
[96] There was some circumstantial evidence to support the Crown’s submission that Mr Shadrock’s reference to the incident being “all over the news” was more likely to be referring to the Tuesday evening by which time it was known that Ms Wang had died and there had been far more extensive media coverage than on the Monday night.
[97] We accept the submission made by Ms Jelas that it was open on the evidence for the jury to conclude that it was established beyond reasonable doubt that Mr Shadrock’s visit was on the Tuesday evening and that, at that time, Mr Tuikolovatu was aware that Ms Wang had died.
[98] The suggestion that the Judge did not correctly or sufficiently put Mr Tuikolovatu’s defence on this point to the jury cannot be sustained. The Judge dealt with Mr Tuikolovatu’s defence in considerable detail and specifically summarised his counsel’s submission on the timing issue:

[125] When you look at the Police interview, you would be left, as a reasonable possibility, that Mr Shadrock called around on the Monday and if that’s the case nobody knew that Mrs Wang had died and so Mr Tuikolovatu couldn’t have had that knowledge of that anyway.

Result

[99] For the reasons given the appeals against conviction by all three appellants are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573 and Tuikolovatu v R [2012] NZCA 235.

^[2] R v Shadrock [2012] NZHC 1775.

^[3] Law Commission Battered Defendants: Victims of Domestic Violence who Offend (NZLC PP41, 2000).

^[4] Simpson v R [2010] NZCA 140 at [99]–[100].

^[5] Citing R v Morgan (1990) 6 CRNZ 305 (CA) and R v Allan [1969] 1 WLR 33; [1969] 1 All ER 91.

^[6] Attorney General for the State of South Australia v Brown [1960] AC 432 (PC) at p 10.

^[7] R v Sharplin (1997) 14 CRNZ 682 (CA).

^[8] At 686.

^[9] R v Childs CA164/00, 24 August 2000 at [7]–[8]. See also R v Higgs [1999] 2 NZLR 385 (CA) at [6].

^[10] At [10].

^[11] Rogers v United States [1975] USSC 120; 422 US 35 (1975); United States v Glick 463 F 2d 491 (1972) and Shannon v United States [1994] USSC 35; 512 US 573 (1994).

^[12] R v Lorimer [1966] NZLR 985 (CA).

^[13] R v Rotana (1995) 12 CRNZ 650 (CA).

^[14] At 656.

^[15] Philip Mackey “The Inutility of Mandatory Capital Punishment: An Historical Note” (1974) 54 BUL Rev 32.

^[16] At 35.

^[17] Neil Vidmar “The Canadian Criminal Jury: Searching for Middle Ground” (1999) 62 LCP 141.

^[18] At 149 (footnote omitted).

^[19] R v McI [1998] 1 NZLR 696 (CA).

^[20] R v Reihana CA350/00, 22 March 2001 at [22].

^[21] R v H CA241/04, 26 November 2004.

^[22] R v Martin [2007] NZCA 386.

^[23] Most recently in Pickering v R [2012] NZCA 311, [2012] 3 NZLR 498.

^[24] R v MacDonald [2009] NZCA 428, (2009) 24 CRNZ 785 at [30].

^[25] At [34].

^[26] Chanel Ashford and Henare Angell.

^[27] The Judge warned the jury to be cautious about accepting Mr Angell’s evidence.

^[28] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 (footnotes omitted).

^[29] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.

^[30] At [13].