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Romana v R [2013] NZCA 464 (7 October 2013)

Last Updated: 16 October 2013

     
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
AND BETWEEN
 Appellant
AND
 Respondent
Hearing:
21 August 2013
Court:
French, Rodney Hansen and Mallon JJ
Counsel:
L Freyer for Appellant Romana C M Clews for Appellant Tie K A L Bicknell for Respondent
Judgment:


JUDGMENT OF THE COURT

A Mr Romana’s appeals against conviction and sentence are dismissed.

B Mr Tie’s appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Romana and Mr Tie were found guilty at trial in the High Court of various offences arising out of the alleged kidnapping of a Mr Han. The presiding Judge, Courtney J, sentenced Mr Romana to a term of six years and six months’ imprisonment.[1] Mr Tie was sentenced to a term of three years and three months’ imprisonment.
[2] Both men now appeal their convictions. Mr Romana also appeals his sentence.
[3] The key issues raised by the appeals are:

Factual background

[4] Mr Romana and Mr Tie were both members of the King Cobra gang.[2]
[5] The main complainant, Mr Han, was a loan shark for a Chinese triad gang, the 14K. Mr Han asked the King Cobra gang to find one of his debtors, who owed $70,000. The King Cobra gang duly located the debtor but a dispute then arose between Mr Han and the King Cobra members over payment of a finder’s fee. Mr Han claimed the agreement to pay a fee was contingent on the debtor being able to pay him. The debtor was not able to pay Mr Han and so Mr Han refused to pay the King Cobra members.
[6] The Crown case at trial was as follows.
[7] In December 2010 members of the King Cobra gang discussed how they might extract payment from Mr Han. On 18 December a King Cobra member, Mr Kopelani, went to Mr Han’s house and persuaded him to come and speak to another King Cobra member, Mr Logo, about the money. Mr Kopelani drove Mr Han to Mr Logo’s house. They collected Mr Logo and went on to some other addresses, where they collected Mr Romana and then Mr Tie. During the course of the journey Mr Romana told Mr Han that the bill was $20,000 and demanded that half of it be paid that day. The group then travelled in two vehicles to a house in Bond Street.
[8] The five men arrived at Bond Street at about 2.30 pm. Whether or not it could be said Mr Han went there willingly, the Crown claimed that once he got there he was undeniably detained against his will. Within a short time of arriving, Mr Han was told that the money he owed the King Cobra gang had increased to over $50,000.
[9] Mr Han was frightened and in the hours that followed he made various phone calls and sent various texts in an effort to obtain money or drugs in order to free himself. En route to Bond Street, he had also phoned a friend, Mr Wu. Speaking in Mandarin Chinese so no one else could understand, he had told Mr Wu to either contact the police or enlist the help of a senior King Cobra member whom Mr Han believed might be able to resolve the situation.
[10] Mr Wu took up the second option and at sometime between 4 pm and 4.30 pm he arrived at the Bond Street address with another King Cobra member, Mr Muli. Almost immediately after Mr Wu’s arrival, both he and Mr Han were physically assaulted. They were kicked and punched in the head and body. Mr Wu sustained a black eye, bruising, a chipped tooth and a broken nose, while Mr Han suffered a wound to the top of his head and bruising to his face. Mr Wu was forced to remain at the address with Mr Han. At one point Mr Wu’s car keys and cellphone were taken by Mr Romana, who threatened to burn the car, while later in the evening Mr Logo showed Mr Han a knife and threatened to cut off one of his fingers unless the money was paid.
[11] The two men were not released until 9 pm, when the police arrived having been alerted to their predicament by Mr Han’s girlfriend. The police officers found both Mr Wu and Mr Han injured and terrified.
[12] Police charged Messrs Romana, Tie, Logo, Muli and Kopelani with various offences arising out of the incident and they were tried together.

Mr Romana’s appeal against conviction

[13] The jury found Mr Romana guilty of two counts of kidnapping, three counts of blackmail, one count of injuring Mr Wu with intent to injure and one count of wounding Mr Han with intent to injure. Mr Romana was also convicted of possession of methamphetamine for supply, police having found methamphetamine when they searched the Bond Street address.
[14] On appeal, counsel Mrs Freyer submits that a miscarriage of justice has occurred on six grounds (alone or in combination). The six grounds are:
[15] Mrs Freyer argues that these six matters are sufficient to give rise to a substantial doubt as to whether the guilty verdicts were inevitable and whether the trial was fair.
[16] We turn now to consider each of the grounds in turn, mindful that Mrs Freyer relies not only on each matter viewed individually but also on the cumulative effect of them.

Cross-examination of Mr Han

[17] During the course of Mr Han’s evidence, Courtney J was required to give a ruling about the permitted scope of the cross-examination. Defence counsel all wanted to cross-examine Mr Han on a number of topics relating to his own criminal activities. On behalf of Mr Romana, Mrs Freyer sought to put the following matters to Mr Han:
[18] Justice Courtney ruled that Mr Han could not be questioned about any of these matters because in her view they were irrelevant to the proceeding, unduly prejudicial and would not be “substantially helpful” to the jury in assessing Mr Han’s veracity (as required by s 37 of the Evidence Act 2006).[3] The Judge also noted that in relation to the allegations of kidnapping the female associate, she would be required to give Mr Han a warning against self incrimination.
[19] Mrs Freyer submits that Mr Han’s credibility and veracity were crucial because his account of what happened at Bond Street differed radically to that given by Mr Romana.[4] Yet the Judge’s ruling meant that defence counsel were hampered in their cross-examination and unable to adequately challenge Mr Han’s story. It enabled Mr Han, for example, to “get away” with appearing naive and inexperienced regarding drug matters. This is said to be particularly unfair when “so much” was included about Mr Romana’s gang affiliations and criminal activities. Mrs Freyer contends that the jury’s assessment of Mr Han’s credibility may have been substantially different had the above matters been put to Mr Han and hence the verdict might have been different.
[20] We disagree. The jury knew Mr Han was a member of a triad gang, knew that he was a loan shark and knew that while being held captive he had been able to arrange a delivery of pseudoephedrine towards payment of the debt at very short notice. Defence counsel had also exposed several inconsistencies between his evidence and what he had told police. In our assessment of the evidence, it is highly doubtful that cross-examining him any further would have achieved anything more. As the Judge noted, there was already adequate material on which counsel could challenge his veracity. Allegations of other wrongdoing were likely to have been met with a flat denial, which Mrs Freyer candidly acknowledged she did not have the evidence to contradict.
[21] In our view, the further cross-examination was essentially an attempt to blacken Mr Han’s character and the Judge was right to exclude it for the reasons she did. Evidence about the detail of the $70,000 debt, the associate’s stay in a motel and the general activities of the 14K gang was not substantially helpful in assessing Mr Han’s veracity. As Ms Bicknell points out, there is no logical connection between the intended cross-examination and Mr Han’s veracity. In terms of s 37 of the Evidence Act, the evidence does not show lack of veracity by Mr Han when under a legal obligation to tell the truth. Nor does it show previous inconsistent statements or bias or a motive to lie about the events at Bond Street that day. Mr Han has no convictions demonstrating a propensity for dishonesty.

Admissibility of evidence about the number plate

[22] There was evidence that after rescuing Mr Han and Mr Wu, the police searched the Bond Street address and found a number plate with the lettering KRAZY. Mr Romana’s street name was “Crazy Horse”. It was not disputed that the number plate belonged to him.
[23] At the trial, Mrs Freyer objected to evidence which a Detective Ekins proposed to give about having returned the number plate to Mr Romana a few days before the 18 December incident. Her concern was that any reference to the police returning the number plate to Mr Romana was likely to evoke suspicion in the jurors’ minds that Mr Romana had been involved in other recent offending.
[24] Justice Courtney rejected that argument.[5] In the Judge’s view, the fact the number plate was returned to Mr Romana did not in itself carry any particular connotation. It was equally possible that the number plate may have come into the hands of the police in a manner that was not connected with any wrongdoing by Mr Romana, for example if he was the victim of a theft. Justice Courtney accordingly allowed the evidence to be given.
[25] On appeal, Mrs Freyer submits that the evidence should not have been admitted because its probative value was limited and outweighed by its unfairly prejudicial effect. Mrs Freyer further submits that the Judge’s approach was inconsistent because she did not allow Detective Ekins to give evidence about finding a hooded top at Bond Street which he recognised as an item he had seen Mr Romana wearing on numerous occasions.
[26] We do not accept those submissions. As Courtney J noted, the extent of Mr Romana’s connection with the Bond Street address had become an issue in the trial. The Crown case was that the house was occupied by Mr Romana and was his principal place of residence. Mrs Freyer’s earlier questioning of another witness, however, had sought to show that Mr Romana’s connection with the address was a casual one and that he was seldom there. The significance of the number plate lay in the fact that it was found at the address a few days after Detective Ekins had handed it to Mr Romana, thereby demonstrating a very recent and arguably primary connection to the address. We agree with the Crown that the number plate evidence was and remained explicable on a basis not inviting negative conjecture on the part of the jury. Further, we consider that there was a valid distinction between the number plate and the hooded top. Evidence had already been given by Mr Romana’s girlfriend that there were various items of clothing belonging to him at the address. Therefore the identification of one top had limited probative value (certainly less than the number plate), while the means by which it was identified (the fact that Mr Romana had been seen by the police on numerous occasions) had prejudicial connotations which the return of the number plate did not.
[27] In our view, the Judge did not err in allowing Detective Ekins to give evidence about returning the number plate.

Should the Judge have declared a mistrial due to the reference to a search warrant?

[28] Mrs Freyer contends that when Detective Ekins gave his evidence about the number plate, he said that he had originally found it as the result of executing a search warrant at the Bond Street address. It had been taken to the police station and then subsequently collected by Mr Romana on 16 December 2010. References to executing a search warrant at the Bond Street address prior to 18 December had never been disclosed before and were not included in the Detective’s brief of evidence.
[29] Mrs Freyer asked the Judge to discharge the jury. The Judge declined to do so, ruling that although the reference to a search warrant was regrettable, it was a problem that could be satisfactorily resolved by an appropriate direction to the jury.[6] In her summing-up, the Judge duly told the jury that it was “completely irrelevant” that one of the accused may have had some prior dealings with the police and that it should not distract them from their job.
[30] On appeal, Mrs Freyer contends that the direction given was insufficient to counter the unfair prejudice that had arisen and that the Judge should have declared a mistrial. In Mrs Freyer’s submission, the giving of the evidence was a serious breach of the Judge’s original ruling about the number plate and the resulting prejudice was so significant it was incapable of being neutralised by any direction.
[31] It appears that both Mrs Freyer and the Judge were labouring under a misapprehension as to what Detective Ekins actually said. The transcript shows that he did not say the search warrant had been executed at the Bond Street address. The actual words used were “I’d carried out a former warrant on an address” (emphasis added), which would of course be consistent with Mr Romana being the victim of a theft and having stolen property returned to him by the police.
[32] In any event, even if the Detective had said it was the Bond Street address, we do not consider that was an error capable of affecting the verdict. The reality is that the jury already knew Mr Romana was a patched member of a gang and therefore likely to have had past dealings with the police.

The repeated absences of Mr Logo

[33] During the trial one of the co-accused, Mr Logo, was repeatedly absent from the courtroom due to illness. This resulted in several lengthy interruptions to the trial.
[34] In her summing-up, the Judge cautioned the jury against having any feelings about the fact that Mr Logo was ill during the trial. The Judge said the jury might feel sympathetic towards him or they might feel a bit annoyed because of the inconvenience his absences caused. The Judge told the jury that it was very important they did not let themselves be distracted and allow those feelings to affect them.
[35] Mrs Freyer submits that having heard Mr Logo and Mr Romana were both patched gang members, the jury would have been suspicious that Mr Logo was not in fact ill but malingering and trying to derail the trial for the benefit of himself and his fellow gang members. Therefore, in Mrs Freyer’s submission, there was unfair prejudice and the Judge should have discharged the jury.
[36] We do not accept that argument. The trial records show that Courtney J told the jury that Mr Logo had been in hospital with a medical condition which she had been advised was painful but not life-threatening. If the jury were entertaining any suspicions about the genuineness of Mr Logo’s illness, this would have dispelled them. In our assessment, Courtney J managed the problems occasioned by Mr Logo’s absences well and there was no reason to declare a mistrial.

Mr Kopelani’s prevarication over his guilty pleas

[37] During the trial one of the co-accused, Mr Kopelani, indicated through counsel on 2 August 2012 that he intended to enter guilty pleas to four counts.
[38] At 12.30 pm on 2 August 2012, Mr Kopelani was brought into court before the jury (but in the absence of the other co-accused) to enter his pleas. The jury were not told what was to happen. When the first charge was put to Mr Kopelani, he responded with a not guilty plea, much to the surprise of his counsel. In the Judge’s minute about the events of that day, she records there was generally confusion and incredulity in the court.[7]
[39] The jury were asked to retire so that the Judge could speak to counsel about the unexpected turn of events.
[40] The following day, 3 August, Mr Kopelani was again brought into the court before the jury, again in the absence of the other co-accused. This time, he pleaded guilty to each of the charges that were put to him.
[41] Counsel for Mr Tie then asked the Judge to discharge the jury on the ground that the pleas and the circumstances in which they had been entered had prejudiced his client’s position and precluded a fair trial. The Judge declined this application.[8] She did so on the grounds that although the actions of Mr Kopelani on 2 August were most unsatisfactory, none of the other co-accused had been present in the dock with him at the time and there was no reason to believe that the jury, properly directed, would approach the task of assessing the case against each of the remaining accused any differently because of what had happened. Subsequently the Judge directed the jury in her summing-up that the guilty pleas were not a factor to be taken into account in considering the case against each of the remaining co-accused.
[42] On appeal Mrs Freyer submits that the manner in which Mr Kopelani entered his pleas would have generated suspicion in the jurors’ minds that his first attempt was unsuccessful because of pressure from the other co-accused. Mrs Freyer further submits that the Judge’s direction was not sufficient to dispel that suspicion and the resulting unfair prejudice. The Judge should have declared a mistrial.
[43] We disagree. It is likely the jury were bemused by what happened but given that the other co-accused were absent and given that Mr Kopelani did in fact eventually enter guilty pleas, we are not convinced the jury would have assumed he was under pressure from others, as opposed to just being indecisive and confused. There are no grounds on which Courtney J ought to have discharged the jury because of the pleas or the manner in which they were entered.

The moon boot photograph

[44] In his evidence, Mr Han said that he had met Mr Romana on a previous occasion. Mr Han described Mr Romana at that time as wearing a white and blue moon boot or cast. Mr Romana elected to give evidence. He said that he had never met Mr Han before 18 December. He also stated that although he had sustained an injury prior to 18 December and had worn a moon boot, the moon boot was black and did not have any blue or white on it. He further claimed that the only reason Mr Han knew he had ever worn a moon boot was because it had been discussed at Bond Street on 18 December.
[45] The prosecution then sought to adduce as evidence in rebuttal a photograph taken by police in 2010 showing Mr Romana wearing what appears to be a blue and white moon boot. Mrs Freyer objected to the photo being produced. However the Judge granted the prosecution’s application[9] and the photograph was produced as an exhibit through Mr Romana in cross-examination.
[46] Mrs Freyer contends that the prejudicial effect of the photo outweighed its probative value. In her submission, the fact that the photograph was taken by the police unbeknownst to Mr Romana carried the clear inference that Mr Romana had been under surveillance by the police for other offending.[10] Mrs Freyer also submits that the inference Mr Romana was under surveillance was further heightened by police evidence about Mr Romana’s general cellphone usage and by the way the prosecuting counsel responded to Mr Romana’s assertion he did not take drugs. The prosecutor said “I believe you”, suggesting in Mrs Freyer’s submission that counsel had knowledge of Mr Romana.
[47] Under s 98 of the Evidence Act, a judge may permit the prosecution to offer further evidence after closing its case where the evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen, or where for any other reason the interests of justice require the further evidence to be admitted.
[48] In our view, the interests of justice did require the Judge to permit the rebuttal evidence to be given. Mr Romana had refused to be interviewed by the police and it could not have been anticipated that he would deny meeting Mr Han before 18 December or that he would claim he was wearing a different coloured moon boot. As for the inference that Mr Romana was under surveillance, we repeat the comment made in relation to the search warrant argument. The jury knew Mr Romana was a patched member of the King Cobra gang and it would therefore have come as no surprise that the police were interested in him and were keeping him under close watch. As Ms Bicknell put it, police interest in the activities of gang members carried no unfair prejudice for Mr Romana over and above that inherent in the fact of his gang membership. In the context of this case, we are satisfied there was no unfair prejudicial effect which outweighed the probative value of the photo as rebuttal evidence.

Conclusion on conviction appeal

[49] We are satisfied that none of the grounds of appeal, whether viewed individually or collectively, warrant appellate intervention.
[50] The appeal against conviction is dismissed.

Mr Romana’s appeal against sentence

[51] As mentioned above, Mr Romana appeared for sentence on the following charges:
[52] At sentencing, the Judge accepted there was no evidence of Mr Romana’s involvement in a plan to hold Mr Han and extract the money before he arrived at Bond Street on 18 December. However, the Judge said she was satisfied that Mr Romana had played the prime role in the course of that afternoon and evening. She stated that it was Mr Romana who increased the amount of the finder’s fee and demanded that Mr Han produce either money or drugs, and that Mr Romana played a direct role in the violence meted out to Messrs Wu and Han.
[53] The Judge went on to say she considered a starting point of five and a half years for the kidnapping and blackmail charges was appropriate, with concurrent sentences of two and a half years on the wounding and injuring charges and three years for the drug offence. The Judge then adjusted the starting point upwards by 15 months for the totality of the offending, with a further increase of three months on account of Mr Romana’s previous convictions.[11] As regards mitigating factors, the Judge said she was prepared to allow a discount of six months for time spent on electronically monitored bail.
[54] That resulted in an end sentence of six years and six months’ imprisonment.
[55] On appeal against that sentence, Mrs Freyer advances two grounds of appeal.
[56] First, Mrs Freyer submits that the starting point of five years and six months for the kidnapping and blackmail charges was too high having regard to the comparator cases of R v Rangitaawa, R v Duffy, R v Mehana and R v Moffatt.[12] The starting points adopted in those cases were as follows:
[57] Mrs Freyer argues that Mr Romana’s offending was only slightly more serious than the offending in Rangitaawa and Duffy, and less serious than the offending in Mehana and Moffat. Accordingly, in her submission, an appropriate starting point would have been no more than five years’ imprisonment.
[58] We disagree. Sentencing is not a mathematical exercise and the fact that Mrs Freyer’s suggested alternative starting point is only six months less than the starting point adopted by Courtney J is, in our view, telling. On appeal, our focus is on the range available to the Judge. There are aspects of this case which are less serious than the facts of some of the other cases, but equally there are also aspects which are more serious. For example in this case, unlike in Moffatt and Duffy, there were two victims, one of whom (Mr Wu) was a complete innocent. He did not owe money to anyone and had no connection with the deal over the finder’s fee. Messrs Wu and Han were also detained for a substantial period of time, longer than the victims in Rangitaawa, Moffatt and Duffy. Further, they only escaped after a police rescue. In all the other cases except Moffatt, the kidnappers released their captives. Unlike in Rangitaawa, actual violence was used.
[59] In our view, comparison with the facts of the other cases does not demonstrate that Courtney J’s starting point was out of kilter. There were significant aggravating factors in this case, including the unlawful detention of two victims and the use of actual physical violence and threats of mutilation with a knife in an attempt to extort drugs and large sums of money. The detention lasted several hours and the victims were terrified for their lives. They only escaped through the intervention of the police and suffered physical and emotional harm. Further, in our assessment of the evidence, Courtney J was correct to treat Mr Romana as the lead offender. He took part in the violence against each victim and directed what occurred.
[60] The second ground of appeal advanced by Mrs Freyer is that the Judge’s uplift of 15 months on account of totality was excessive and involved an element of double counting because it included Mr Romana’s criminal history. Mr Romana’s previous convictions were the subject of an additional uplift of a further three months.
[61] In contending that the Judge double counted Mr Romana’s criminal convictions, Mrs Freyer relies on a passage in the sentencing notes where the Judge said:[14]

I must, however, make a further adjustment so that the end sentence fairly reflects the fact that you have a number of previous convictions and the totality of all the offending that I am sentencing on.

[62] However the remainder of the paragraph in question makes it clear that the Judge has not double counted. The sentences immediately following the quote show that there are two parts to the adjustment, one for totality and the other for previous convictions. It is also clear that the increase of 15 months is for totality in relation to the index offending alone.
[63] We also reject Mrs Freyer’s submission that an uplift of 15 months did not appropriately reflect the totality of the offending including as it did two counts of kidnapping, three counts of blackmail, one of injuring with intent to injure, one of wounding with intent to injure, and one of possession of methamphetamine for supply. This was serious offending and an uplift of 15 months from a starting point of five and half years was justified.
[64] Mr Romana’s appeal against sentence is accordingly dismissed.

Mr Tie’s appeal against conviction

[65] Mr Tie was convicted of being a party to the unlawful detention of Mr Han, the blackmail of Mr Han and wounding Mr Han with intention to injure him. The jury acquitted him of all of the counts relating to the offending against Mr Wu. Mr Tie was sentenced to a term of imprisonment of three years and three months and given a first strike warning.
[66] Before turning to the specific grounds of appeal, it is necessary to explain the Crown case against Mr Tie in greater detail.
[67] Sometime after Mr Han had let it be known he wanted the King Cobra gang to find the debtor, it was Mr Tie who first met with him and showed him a photo of the debtor on Mr Tie’s cellphone. According to Mr Han’s account of the meeting, Mr Tie wanted $10,000 for having found the debtor but he, Mr Han, refused to pay anything until he had seen the debtor in person and the debtor had paid him. Shortly after this meeting, Mr Tie phoned Mr Han and demanded payment of $10,000 saying: “We are members of KC, you behave yourself properly.” Some weeks later, Messrs Romana and Logo brought the debtor to a meeting with Mr Han and a figure of $20,000 was mentioned. For his part, Mr Tie had no further contact with Mr Han until the day of the alleged kidnapping on 18 December, although text messages between gang members prior to that date showed he was involved in discussions about recovering the money Mr Han owed them.
[68] According to the Crown case, Mr Tie was one of the group that drove with Mr Han to the Bond Street address on 18 December and was there when the police arrived in the evening. It was accepted that Mr Tie did not remain at the premises the whole time and that he did not assault either Mr Wu or Mr Han. However, based on cellphone records and the testimony of Mr Han, the Crown alleged that Mr Tie was present when the assaults took place and that when Mr Logo threatened to cut off Mr Han’s fingers, Mr Tie said “yes, cut off one, one of his fingers”.
[69] The Crown contended that while Mr Tie may not have been a principal offender, he was liable as a party either because he had procured or encouraged all of the offending against Mr Wu and Mr Han or alternatively because he was party to a common intention to kidnap the two men and the blackmail and the assaults were known probable consequences of that common intention.
[70] Mr Tie did not give evidence at the trial. However, in a pre-trial statement to the police, he said he had only been at the address for 10 to 15 minutes prior to the police arriving and had not been there at all earlier in the day.
[71] On appeal, the focus was on the correctness and adequacy of the Judge’s various directions to the jury.

The Judge’s question trail on count one

[72] In regards to count one (kidnapping Mr Han), the Judge told the jury in her summing-up that:

[I]n essence, the Crown case is that Mr Tie organised for Mr Han to be brought to a place to sort out payment of this debt. Alternatively, that he encouraged. If he did not actually do the organising he got there and he was encouraging other people to do this and to keep Mr Han there at Bond Street. It was his debt and he had arranged for his associates to collect it but kept himself out of the frame. That is the Crown case.

[73] The Judge then went through a question trail which read:

Count 1

Kidnapping – Joseph Tie

That JOSEPH TIE on or about 18 December 2010, at Auckland, together with Robert Logo, Ross Romana and Sione Muli, unlawfully detained Shuo Han without his consent, or with his consent obtained by duress, with intent to cause him to be confined.

  1. Joseph Tie as a party by encouraging, procuring or inciting

1.1 Are you sure that Joseph Tie arranged for one or more of the other accused to detain Shuo Han knowing that the other accused was or were intending to cause him to be confined

If No, go to question 1.2.

If Yes, go to question 1.2.

1.2 Are you sure that Joseph Tie encouraged one or more of the other accused to detain Shuo Han, knowing that the other accused was or were intending to cause him to be confined?

If No, find Not Guilty.

If Yes, go to question 1.3.

1.3 Are you sure that Shuo Han did not consent to being detained?

If No, go to question 1.4.

If Yes, go to question 1.5.

1.4 Are you sure that Shuo Han’s consent was obtained by duress?

If No, find Not Guilty.

If Yes, go to question 1.5.

1.5 Are you sure that Joseph Tie knew that Shuo Han was not consenting to being detained or this consent had been obtained by duress?

If No, find Not Guilty.

If Yes, find Guilty.

[74] Mr Clews submits that the question trail was flawed because regardless of whether the answer to question 1.1 (arranging the event) was yes or no, the jury still had to move on to question 1.2 (encouraging after the event has commenced). Mr Clews argued this was not only confusing and illogical but it also raised the spectre of the jury not being unanimous. It was possible only part of the jury agreed on the arranging intent and part on the encouraging intent.
[75] We accept the structure of the question trail is incorrect. Instead of being directed to move onto question 1.2 regardless of its answer to question 1.1, the jury should have been told that if it found “yes” to either question 1.1 or question 1.2 then it was to move onto question 1.3. If it found “no” to both question 1.1 and question 1.2, then it must acquit. As it was, the question trial rendered question 1.1 pointless. However, the error did not disadvantage Mr Tie. Under the question trail, the jury still had to all be satisfied that Mr Tie had encouraged the detention. Indeed, if anything, the error was at least theoretically to Mr Tie’s potential advantage. If all the jurors were satisfied he had organised the kidnapping but were divided as to whether he had subsequently encouraged it, the question trail would have resulted in an acquittal. Yet in law the Crown was not required to prove both to secure a conviction.

Did the Judge misdirect the jury on count three?

[76] Count three was the blackmail charge. In contending that the Judge misdirected the jury on that count, Mr Clews relies on a statement the Judge made in her summingup while explaining one of the questions in the relevant question trail. The question asked the jury whether they were sure that encouraging one or more of the other accused to threaten the safety of Mr Han or Mr Wu was not a reasonable and proper means of obtaining money or drugs. In her summing-up, the Judge read out the question and said: “[I]f you have answered no, you will find not guilty. But if you are sure encouraging a threat to safety is a reasonable and proper means to recover money then you will answer yes and find guilty.”
[77] Mr Clews submits the last sentence quoted above makes the direction impossible to follow and would have confused the jury. He further contends that the same flaw vitiates the Judge’s direction on common intention in relation to count three.
[78] We disagree. All that has happened is that one word, the word “not”, has been omitted from one sentence. Either it is a mistake in the transcription or the Judge made a slip of the tongue. If the latter and the jury did notice, they would have realised it was just a slip of the tongue because it was patently nonsensical. The question trail (which is the document the jury had before it while deliberating) made it clear what the Crown was required to prove. We are satisfied the jury would not have been confused and are reinforced in that conclusion by the fact that trial counsel did not raise any concerns at the time. If the slip was missed by counsel, then it is likely to have been missed by the jury.

Was the Judge’s direction on count seven adequate?

[79] Count seven was a charge of wounding Mr Han with intent to injure. The Judge left this count with the jury solely on the basis of common intention under s 66(2) of the Crimes Act 1961. In her summing-up, Courtney J said of count seven:

... there is no dispute, about the fact that [Mr Han] had sustained these wounds. The question is again who did it? But for Mr Tie, he again is in the frame as far as the Crown is concerned just by common intention. Was he a party to the plan to detain? We have talked about that. If he was, did he know that Mr Han might get wounded as things turned out?

[80] The question trail provided to the jury read:

Count 7

Wounding with intent to injure – Joseph Tie

That JOSEPH TIE on or about 18 December 2010, at Auckland, together with Robert Logo, Ross Romana and Sione Muli, with intent to injure Shuo Han, wounded him.

  1. Joseph Tie as a party by common intention

1.1 Are you sure that Joseph Tie was party to a common intention with one or more of the other accused to detain Shuo Han unlawfully and help one another in doing so?

If No, find Not Guilty.

If Yes, go to question 1.2.

1.2 Are you sure that, although Joseph Tie may not have intended that another accused would wound Shuo Han he knew that, in detaining Shuo Han unlawfully, that might well happen?

If No, find Not Guilty.

If Yes, find Guilty.

[81] On appeal, the arguments regarding the direction evolved during the course of the hearing.
[82] Initially, in his written submissions, Mr Clews contended that liability on the basis of common intention was not available to the jury for two reasons. First, because Mr Muli (the King Cobra member who had accompanied Mr Wu to Bond Street) was acquitted as being a party through common intention and secondly because common intention was not consistent with the evidence of Mr Tie’s activity. Mr Clews pointed out that on the evidence, Mr Tie allegedly undertook only one activity during the whole of the six and a half hours, namely saying “yes one finger off” when Mr Logo threatened Mr Han with the knife.[15] Accordingly, in Mr Clews’ submission, to be consistent with the evidence the Judge should have left the count with the jury on the basis of encouraging Mr Logo under s 66(1), not common intention under s 66(2). The application of s 66(2) was said to have the flaw that if the kidnapping or kidnapping/blackmail are the common purpose of all the accused, “one finger off” is not evidence of such a common purpose allowing Mr Tie to be a party to the wounding of Mr Han.
[83] However, as submitted by the Crown, that analysis is misconceived. The wounding charge related to the blow that Mr Han received to the head. It did not relate to Mr Logo’s threat to remove one of Mr Han’s fingers. We also accept, as submitted by the Crown, that there was sufficient evidence for a reasonable jury to convict Mr Tie on count seven on the grounds that he shared a common intention to unlawfully detain Mr Han and he knew wounding Mr Han was a probable consequence of that common intention.
[84] As already mentioned, there was evidence that Mr Han’s debt was originally owed to Mr Tie and that the motivation for kidnapping Mr Han was the collection of the debt. Mr Tie was a party to the pre 18 December discussions about recovering the debt, and when Mr Kopelani went to collect Mr Han on 18 December one of the first things he did was tell Mr Han that he was there to collect Mr Tie’s $10,000. There was also evidence that on arrival at the Bond Street address, Mr Romana asked Mr Han if he recognised Mr Tie and said: “so now you know who Joe is, would you know that you owe him $10,000?” Clearly it was open to the jury to draw the inference that Mr Tie was not at the address by accident, and that he knew that the reason others were there in force was because there were to be stand over tactics, with all that might entail.
[85] Further, while the evidence showed that Mr Tie subsequently left the address and returned, the cellphone polling evidence indicates that he arrived earlier than he claimed to the police and was therefore likely to have been present when the assaults took place, as claimed by Mr Han. His return to the address could reasonably be viewed as indicating an active choice to be involved in the offending against Mr Han. The “one finger off” comment, if accepted by the jury, further indicated that he was aware of what was going on and endorsing it.
[86] The fact that Mr Muli was acquitted does not in our view assist Mr Tie. Mr Muli’s involvement was more remote. Mr Muli was not owed any debt and only came to the Bond Street address late in the afternoon at the request of Mr Wu.
[87] At the hearing before us, Mr Clews accepted the force of these arguments but submitted in the alternative that if the count was to be left with the jury on the basis of common intention, then it required a fuller explanation than the one the Judge gave. In particular, he submitted that the Judge had not made clear the time at which Mr Tie must have formed the common intention and had not properly explained the link between the common intention, Mr Tie and the wounding having regard to his absences during the afternoon. In Mr Clew’s submission, although blackmail can be readily inferred as a direct consequence of detaining someone, wounding is in a different category. The Judge needed to direct the jury on the matters they could take into account in deciding whether to draw that inference. The failure to do so rendered the direction inadequate.
[88] We accept that a fuller direction may have been desirable, especially because secondary liability is a difficult concept and the closing address of trial counsel (not Mr Clews) barely touched on this issue.
[89] However, we also consider that the direction given, when combined with the question trail, was sufficient. The question trail made it clear that it was the events on that day that required the jury’s consideration. Further, criticism of the brevity of the Judge’s direction needs to be tempered by reference to the fact that elsewhere in the summing-up there are good explanations about liability as a party under s 66(2) and about the drawing of inferences, as well as a specific direction in relation to the count of being a party to injuring Mr Wu about the evidence the jury should consider in deciding the existence of a common intention and Mr Tie’s knowledge of probable consequences. That was why the Judge said in her summing-up on count seven: “we have talked about this”.
[90] We are satisfied there are no grounds on which to overturn Mr Tie’s convictions.

Outcome

[91] Mr Romana’s appeals against conviction and sentence are dismissed.
[92] Mr Tie’s appeal against conviction is dismissed.




Solicitors:
Public Defence Service, Auckland for Appellant Romana
Crown Law Office, Wellington for Respondent

[1] R v Tie [2012] NZHC 2517.

[2] At trial one police witness said he had no information that Mr Tie was a member of the gang. However in her sentencing notes Courtney J found that he was a member and no challenge has been made to that finding on appeal.

[3] R v Tie HC Auckland CRI-2011-004-12004, 20 July 2012 (Ruling (2) of Courtney J).

[4] Mr Romana claimed that he had nothing to do with the debt, had not met Messrs Wu or Han before, had merely offered a place for the men to talk about the debt and did not assault or threaten them.

[5] R v Tie HC Auckland CRI-2011-004-12004, 6 August 2012 (Ruling (5) of Courtney J).

[6] R v Tie HC Auckland CRI-2011-004-12004, 14 August 2012 (Ruling (15) of Courtney J).

[7] R v Tie HC Auckland CRI-2011-004-12004, 3 August 2012 (Minute of Courtney J).

[8] R v Tie HC Auckland CRI-2011-004-12004, 9 August 2012 (Ruling (8) of Courtney J).

[9] R v Tie HC Auckland CRI-2011-004-12004, 17 August 2012 (Ruling (17) of Courtney J).

[10] The Judge did not address this argument in her ruling although Mrs Freyer says she raised it at the time in addition to an argument about lack of pre-trial disclosure.

[11] Thirty-eight previous convictions since 1994.

[12] R v Rangitaawa HC Christchurch CRI-2004-009-14066, 11 August 2005; R v Duffy HC Christchurch CRI-2009-042-2801, 15 April 2010; R v Mehana HC Auckland CRI-2007-004-23679, 11 December 2009; R v Moffatt CA193/01, 30 October 2001.

[13] The starting point actually identified by the sentencing Judge was six years, but it was reached by factors relating to both the offending and the offender personally.

[14] R v Tie, above n 1, at [17].

[15] As Mr Clews also pointed out, Mr Han’s evidence that this had been said by Mr Tie was not supported by Mr Wu.

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