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Court of Appeal of New Zealand |
Last Updated: 25 December 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
30 and 31 October 2013 (further documents received
4 December 2013) |
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Court: |
Ellen France, Randerson and French JJ |
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Counsel: |
B L Sellars for Appellant
J M Jelas for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France
J)
Table of Contents
Para No
Introduction [1]
A violent incident at a
party [3]
The trial [10]
The first appeal [19]
The terms of the Order in
Council [20]
Our role under
s 406 [23]
The new
evidence [28]
Paul Finau,
Nathan Lumbers and Maka Feki [30]
The other five
witnesses [41]
Analysis [52]
Result [59]
Introduction
[1] Tyson Redman was found guilty by a jury of injuring with reckless disregard for the safety of others (six counts), injuring with intent to cause grievous bodily harm, wounding with intent to cause grievous bodily harm and unlawful assembly. He was sentenced by Judge Field, the trial Judge, to a term of two years six months imprisonment,[1] which he has served in full. A subsequent appeal to this Court was dismissed on 5 May 2008.[2] However, by Order in Council made on 29 October 2012, his convictions for injuring and wounding were referred to this Court under s 406(a) of the Crimes Act 1961.[3]
[2] The issue raised by the reference is whether the new evidence specified in the Order in Council leads us to conclude that a miscarriage of justice may have occurred. We consider that issue after setting out the factual background, describing the course of the trial, the first appeal and the detail of the reference, and discussing the applicable principles.
A violent incident at a party
[3] The events surrounding the offending took place over 17 and 18 September 2005. Tyson Redman was then aged 17. He was part of a group of young men who had met up through school who called themselves JDKs (the Junior Dominion/Dom Kings).[4]
[4] A party was held on 17 September to celebrate the 21st birthday of Crystal Norman. Crystal Norman was living at home in Mount Roskill. The party took place in the garage at that property. There were in fact two garages, one that belonged to the Normans and next door to it, a garage and carport that belonged to their neighbours, the Wichman family. Crystal Norman’s family and friends attended the party and they included a couple of young men who had been involved with the JDKs and so knew Tyson Redman. The Wichman family, but for Pliskin Wichman, were invited to the party. Pliskin was a friend of Tyson’s.
[5] The charges were the result of two key incidents involving the JDK group that took place on 17 and 18 September. We describe each in turn after we explain a preliminary event that triggered the group’s involvement.
[6] Prior to the two incidents involving the JDK group, the episode was set in train by an altercation between Pliskin Wichman, then aged 17, and one of the adult males who was ultimately a victim of the offending, Steven Tarapata. The Crown witnesses gave evidence of Pliskin arriving at the birthday party some time during the day with another friend. It appears the friend was Nuivao Taka, another member of the group. Pliskin was intoxicated and provoked a fight with Steven Tarapata. This resulted in Pliskin being knocked to the ground by Mr Tarapata. It appears that Pliskin then went home and whilst there cut himself during a collision with a window. Exactly what happened next is a little unclear but, essentially, Pliskin and/or his friend told others in the JDK group that Steven Tarapata had “sliced” or “bottled” him. The group were at that stage drinking at the home of two brothers, Jonathan and Semisi Ma’u.
[7] News of Pliskin’s attack led to the first key incident. This involved a group of the young men leaving the Ma’u household having armed themselves with various weapons like a baseball bat and bits of wood and heading out to the Norman house. When they got there, after some yelling and swearing, Janine Tatana, Pliskin’s mother, told them to leave and they did so. Tyson Redman was part of this group and his involvement in this incident led to the charge of unlawful assembly which is not now in issue.
[8] The group continued to be unhappy about what they understood had occurred to Pliskin. Eventually, again armed, they returned to the scene of the party. They attacked a number of the partygoers including Steven Tarapata. Bottles were thrown and various objects swung around. The group left the scene when the light in the garage was knocked out. The police were called. Six of the partygoers, including Mr Tarapata were injured. This gave rise to the wounding and injuring charges. Tyson Redman was charged as a party to this offending under s 66(2) of the Crimes Act, that is, having a common intention with others in the group to pursue an unlawful purpose.
[9] Others in the group were charged with various offences including injuring and wounding. A number of the group pleaded guilty prior to trial.
The trial
[10] The trial began on 23 July 2007 and verdicts were delivered on 17 August 2007. Tyson Redman stood trial along with Arthur Aunese, Mark Fameitau (Liku), Jonathan Ma’u (Manu) and Semisi Ma’u (Misi).[5] Winston Uepi (Mafua) pleaded guilty part-way through the trial.
[11] The Crown evidence came from a number of the partygoers, including Steven Tarapata, Crystal Norman and other family members and friends of these two who were at the party, and from the police officers who had interviewed the defendants. There was an agreed statement of facts relating to the injuries received by the victims. The video interviews of a number of the defendants were played to the jury and the jury also had a written statement made to the police from Tyson Redman.
[12] There was little clarity in the evidence at trial about the timing of the various events. At best, the end of the violent incident could be pinpointed by the timing of the police involvement. The first police officer on the scene received information at 2.20 am that led him to travel to the Norman house. There was also a lack of clarity about the numbers involved in either the group’s first visit to the Norman house or their visit on the second occasion. For example, in relation to the second visit, one witness described “16 plus”. Another witness said there were about 10, another 15 or 20 while another estimated that between 30 and 50 people were present on that occasion. Many of the partygoers who gave evidence had been drinking and some had been smoking cannabis, all of which added to the general confusion about events. Crystal Norman, for example, in her evidence accepted that she had been given an ounce bag of “skunk” (strong cannabis) as a birthday present and had smoked some of that. There was also a fair amount of confusion as to what had happened at the time of the fight because of lighting difficulties and as a result of the general melee.
[13] The Crown evidence essentially confirmed that the events could be broken down into the event which set in train the whole episode, that is, Pliskin’s provocation of Steven Tarapata resulting in Pliskin being knocked out and then the two key incidents, namely, the JDK group making their first retaliatory visit but leaving before violence occurred and the group’s return with violence ensuing.
[14] Two Crown witnesses placed the appellant at the scene at the time of the party; they were Crystal Norman and Krystal Trethowen. Crystal Norman said she noticed the appellant with a baseball bat. He was a friend of her brother’s. She had been to school with his sisters. By the time of the fight she had smoked cannabis and drunk alcohol. Krystal Trethowen said that she recognised the appellant as one who had thrown bottles.[6] She was aged 15 at the time and accepted she had been drinking and smoking cannabis and that by the time the violence took place people at the party were “truly wasted”. She explained she had met Tyson before as she had gone drinking on one occasion at Tyson’s house. Ms Trethowen said she thought Tyson was on the other side of the garage, not close to her. Defence counsel crossexamined these two witnesses on the basis they might have been mistaken.
[15] Valen Norman, Crystal’s brother and Krystal Trethowen’s former boyfriend, identified Tyson Redman as present during the group’s first visit to the Norman house. He said he saw “the same people” come back about two or three hours later. However, he qualified that by saying he was “not very sure” about Tyson or about Jonathan Ma’u; he said he could not really remember. He knew Tyson Redman through primary school and used to play league on a regular basis with Tyson and with Jonathan Ma’u. Valen Norman at depositions accepted it was possible that Tyson might not have been present on the second occasion.
[16] Tyson Redman had provided a written statement to the police and this was before the jury. In that statement he accepted he was present on the first visit to the Norman house but not on the second. He said he had gone back to the Ma’u house after that first visit and had then been dropped off home. It was put to him that Valen Norman said he had seen Tyson Redman during the assault. Tyson responded: “Yeah he’s just saying that cos he knows me. I saw him too.”
[17] The Crown placed some reliance on the exchange which followed:
Q. Krystal has also put you at the main assault and throwing bottles.
A. Yeah I saw her and was talking to her. Ask my mates.
Q. Liku put you at the main assault as well.[7]
[18] Tyson Redman did not give evidence but his mother, Carol Redman, was called to provide an alibi. She said she was watching television in their home at about 10.30 pm. She heard a car and then Tyson came into the house. He was very drunk and soon fell asleep on the bed where he remained. She was cross-examined about inconsistencies as to her recollection of the timing of Tyson’s return home apparent on a comparison between her statement to the police and her evidence.
The first appeal
[19] On the first appeal, the appellant raised a number of issues which are not relevant now. One of the grounds of appeal was based on the inherent reliability of the evidence from Ms Norman and Ms Trethowen. This was rejected by this Court on the basis these matters had been raised in crossexamination and referred to in the summing-up and so were fully before the jury.[8]
The terms of the Order in Council
[20] The Order in Council records the background to the reference. The Order in Council notes that the appellant applied to the Governor-General for the exercise of the royal prerogative of mercy on 25 February 2009. That application was brought on the basis the appellant was not present at the attack and his convictions were unsafe in light of the evidence from eight potential witnesses who had provided affidavits sworn between December 2008 and February 2009.
[21] The Order in Council records Tyson Redman’s submission that “he and his family instructed both trial and appeal counsel to consider the evidence of [the eight] potential witnesses” and also that on appeal he and his family had “instructed appeal counsel to raise [the failure to call the witnesses at trial] as a ground of appeal”, but this was not done.[9] The Order in Council notes that trial counsel’s advice to the Ministry of Justice was that apart from Tyson Redman’s parents, the only potential witness he recalled discussing with Tyson and his family was Paul Finau (also known as Piks and Bola) although he “was aware of, and considered, other potential witnesses”.[10] The Order in Council also states that trial counsel’s assessment was that Mrs Redman could provide reliable alibi evidence and that “exposing Mr FINAU and others involved in the incident to cross-examination could undermine that evidence”.[11] This assessment, in discussion with Tyson and his parents, resulted in the decision to rely on Mrs Redman’s evidence.
[22] The Order in Council records that the reason for the reference to this Court is that the information in the eight affidavits indicates:[12]
that evidence is now available that –
(a) was not given at the [appellant’s] trial or raised on appeal; and
(b) could lead the Court of Appeal to conclude that a miscarriage of justice may have occurred.
Our role under s 406
[23] Section 406 of the Crimes Act states that the Act does not affect the prerogative of mercy. The section goes on to provide for the Governor-General in Council to refer convictions to this Court. Section 406(a) states that the question so referred “shall then be heard and determined by the Court to which it is referred as in the case of an appeal by that person against conviction ...”. As this Court said in R v Haig, the words of s 406 “bring into play s 385(1) and (2) of the Crimes Act” dealing with the determination of appeals in ordinary cases.[13] The matter is to be treated as an ordinary appeal. The approach to fresh evidence arguments is accordingly as set out in the authorities dealing with s 385 of the Crimes Act.
[24] The approach to fresh evidence under s 385 is well settled. The principles were discussed most recently by the Privy Council in Lundy v R.[14] In that case, their Lordships referred to the established tests of credibility and freshness and to the need to consider the effect of the new evidence on the safety of the conviction. As to the latter, we also have to consider whether the fresh evidence, if considered alongside evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty. Their Lordships observed that the nature of the “overriding” test is that the new evidence should be admitted if the interests of justice require it.[15]
[25] As William Young P observed in Haig, the “freshness and credibility criteria are generally less rigorously applied in cases which come to the Court via s 406(a)”.[16] In R v Ellis, the Court noted that as the reference under s 406(a) is treated as an appeal brought under the Crimes Act, the practice of the Court in respect of fresh evidence is therefore applicable:[17]
subject to the reservation recognised in R v Morgan, and more recently in Collie v R, where in delivering the judgment of the Court Eichelbaum CJ said:
The Court should be given information of the considerations which have caused the Governor-General in Council to make the reference. If as would invariably be the case the appellant wished to rely on the material placed before the Governor-General, an application for leave to adduce fresh evidence is required. The normal rule that fresh evidence will not be received unless it is shown that such evidence is new or fresh in the sense that it was not available at the trial is not always applied with rigidity if there is reason to think that to do so might lead to injustice, or the appearance of injustice. In this respect each case has to be decided on the merits.
[26] It is accepted that the evidence does not meet the test for freshness. The Order in Council records the acknowledgement that the information in the affidavits may not be regarded as fresh.
[27] We turn to consider the credibility of the new evidence.
The new evidence
[28] We begin our consideration of this topic by setting out the evidence from the eight new witnesses. As indicated in the Order in Council, all eight swore an affidavit after they were visited by a private investigator. All eight were crossexamined extensively before us.[18] The witnesses can be divided into two broad groups. We place the evidence of Paul Finau, Nathan Lumbers and Maka Feki (Muks) in one group because the effect of their evidence is that Tyson Redman was dropped home by car prior to the group’s second visit to the Norman house. The other witnesses simply state that Tyson was not present on the second occasion.
[29] We describe the evidence of Paul Finau, Nathan Lumbers and Maka Feki first.
Paul Finau, Nathan Lumbers and Maka Feki
[30] Paul Finau is the only one of the eight new witnesses not to have been charged in relation to the offending. He was aged 17 at the time and was a friend of Tyson’s.
[31] Paul Finau was interviewed by the police after the incident in November 2005. However, the police have been unable to find the video of the interview or the transcript of it. Paul Finau was interviewed again just prior to trial and a statement was prepared, apparently in the context of considering the alibi notice from Tyson Redman’s counsel. In that July 2007 statement, Paul Finau says only that he was at the Ma’u household after the first incident for around 10 minutes before he left to take Tyson home. He said that at this time “Tyson was okay, he wasn’t drunk or anything”. He said he dropped Tyson off and drove back home. In evidence before us Paul Finau said that Tyson had been drinking but was not very drunk. That can be contrasted with Tyson’s statement to the police that he went home because he was too drunk and with Mrs Redman’s evidence that Tyson was “very, very” drunk.
[32] In cross-examination before us, Paul Finau initially refused to accept that the group meant trouble when they first approached the Norman house. He also denied that the group had weapons with them on this first occasion or that there was any yelling or shouting at that point. Plainly, these recollections cannot be accurate.
[33] Paul Finau was also asked about Tyson’s recollection recorded in his police statement that he was dropped off home at about 8.30 pm and about Mrs Redman’s evidence of Tyson returning home around 10.30 pm. Paul Finau accepted he might have dropped Tyson off as late as 10.30 pm but he could not remember any details about the timing other than that it was before midnight.
[34] Nathan Lumbers was aged 17 at the time of the offending. He pleaded guilty prior to trial.
[35] In his affidavit, Nathan Lumbers says that Tyson was not in the group of about 10 who went to the Norman house the second time. He said that after the fight and shortly after going back to the Ma’u house he went home. Home at that point was in the garage at the Redman house. He said he went into the garage where Tyson was asleep, woke him up and told him what had happened. That account differs from that of Tyson in his statement and from the evidence of Mrs Redman. Neither Tyson nor his mother describe Tyson sleeping in the garage; rather, they say he was sleeping in his bedroom in the house. Tyson says another man, Asipele Filipe (Pele), was sleeping in the garage with Nathan Lumbers but Nathan Lumbers had no recollection of that. Tyson said he did not learn about the fight until he went down to see Nathan Lumbers and Asipele Filipe in the garage. In cross-examination before us, Nathan Lumbers said he did not remember seeing Pliskin’s mother, Janine Tatana, or Pliskin’s sisters (Sian and Roxeanne) at the Norman house although plainly both Janine Tatana and Sian were present. Nathan Lumbers accepted that by the time of the second incident he had been drinking for a fairly lengthy period.
[36] In Nathan Lumbers’ interview with the police as part of the police investigation, he identified Tyson as present at the Ma’u household drinking but does not record him as being part of the group on either visit to the Norman house. He does acknowledge that there were “others” in the group but he cannot remember them. He does not name Tyson in the front row of those on the second occasion whom he said comprised himself, Semisi Ma’u, Pliskin Wichman, Nuivao Taka and Maka Feki. He said the rest of the group were standing behind. Nathan Lumbers makes no mention of going home to the Redman’s and waking up Tyson although he is not asked about Tyson. He said that after the incident, he went back to the Ma’u house and was only there a few minutes before he and another man, Marcel,[19] drove a couple of the girls home. He said they then went back to the Ma’u house.
[37] Maka Feki pleaded guilty prior to trial and was dealt with in the Youth Court. He makes two main points in his affidavit of relevance to the appeal. First, he says that at “some time” during the course of the evening, he recalled Paul Finau giving Tyson a lift home. Secondly, he says that some time before midnight he went to Tyson’s house to try to get Tyson to come back to the Ma’u house. He sent a text message to Tyson to tell him they were outside but said there was no reply. He said he went back to the party and did not see Tyson again that night.
[38] His cross-examination revealed various inconsistencies. Initially, he did not remember he had been part of the group on the first occasion but when asked about the inconsistency in this respect with his initial statement to the police and that of others, he first said that the earlier statement was “probably right” but that he could not remember. Eventually, he said that he could not be sure. He said there were no weapons on the first visit which cannot be correct.
[39] Maka Feki said he could not be too sure as to what time it was when Paul Finau gave Tyson a lift home but he knew it was before the second incident. In his statement to the police, Maka Feki said that Siali (Charles Toa) had dropped Tyson home.[20] Maka Feki was also confused in his evidence about the timing of the trip to Tyson’s house on the occasion when he had sent Tyson the text message. His explanation for some of the confusion appeared to be that whenever he had been asked about this case, it had always been “about Tyson”. In addition, Maka Feki had been drinking a combination of beer and spirits for close to 14–16 hours and in fact crashed Charles Toa’s car at 6 am that morning.
[40] A synopsis of his interview with the police is before the Court. That synopsis records that Maka Feki said that Tyson was at the Norman house on the first occasion but was otherwise at home.
The other five witnesses
[41] Jonathan Ma’u was aged 17 at the time of the offending. He was the only one of the new witnesses who stood trial with Tyson Redman, Winston Uepi having pleaded guilty shortly after the trial commenced. In his affidavit, Jonathan Ma’u says that “at some stage” Tyson left and he was not with the group on the second incident. In cross-examination before us Jonathan Ma’u had difficulty in recalling the detail of the two incidents involving the group and as to who went where and when. He did not recall Janine Tatana encouraging the group to fight on the second occasion even though she pleaded guilty to a charge of counselling a riot.
[42] Jonathan Ma’u was asked by the police in his initial interview whether Tyson was present. He said he was probably there on the first occasion the group went to the Norman house but not on the second.
[43] Pliskin Wichman pleaded guilty prior to trial. In his affidavit he says that Tyson was not present on the second occasion. In cross-examination he was most reluctant to acknowledge his role in the events leading up to the attack. The Crown case was that he embellished his story as to what the victim, Steven Tarapata, had done to him. He accepted that was so in his interview with the police, and Judge Field accepted Pliskin had “relay[ed] ... falsely” what had occurred to the others.[21] He was also inconsistent over various details, for example, he did not recall his mother encouraging the group to fight on the second occasion.
[44] In his interview with the police, Pliskin eventually named various people who were at the Norman house on the second occasion but he did not include Tyson Redman in that group.
[45] Winston Uepi was aged 17 at the time of the offending. In his affidavit he says that he does not recall seeing Tyson at the Ma’u house although he did not get there until after 10 pm. He says he does know that Tyson was not at the party when the fight took place.
[46] In cross-examination, he accepted that Tyson could have been at the Ma’u house outside as Winston Uepi was inside. The first visit to the Norman house does not really feature in his account although at one point, in answer to a question from the bench, he accepted a group did go away and come back. He did not recall Pliskin’s mother encouraging the group on the second occasion.
[47] He named various participants in the second group in his interview with the police but did not name Tyson as a participant.
[48] Sian Wichman, aged 23 at the time of the offending, pleaded guilty prior to trial to a charge of unlawful assembly.
[49] In her affidavit, Sian Wichman says Tyson was not at the party when the fighting started. In cross-examination her focus was on maintaining a distinction between what she saw before and after dark. She does not recall seeing Tyson with a piece of wood during the first incident, contrary to Tyson’s own statement. In her statement to the police she said she was “pretty chronic”, was not thinking and did not watch the whole thing.
[50] Janine Tatana pleaded guilty prior to trial. She told us she did so on the advice of her lawyer.
[51] In her affidavit she says that she did not see Tyson at the party on the group’s second visit. In cross-examination she accepts there were problems with visibility because of the lighting and it was plain there was an issue about her ability to see Tyson in any event unless he had been in the front of the group with Pliskin. She said that she would not have known the identity of various people in the group, because some “just popped up”, although a number were friends of Pliskin’s.
Analysis
[52] This evidence has all of the difficulties highlighted by Ms Jelas for the Crown. As Ms Jelas notes, seven of the eight new witnesses are co-offenders all of whom have now served their sentences. Further, there are inconsistencies in the accounts of the new witnesses in some important respects, such as with both the evidence of Mrs Redman and with Tyson’s own statement regarding Tyson’s time of return to the Redman house. There are also some inconsistencies between some of the witnesses’ current evidence, what they say in their affidavits, and with their police interviews. An example of the latter brought out in cross-examination related to which members of the group were part of the various incidents. In addition, a number of the group were plainly affected by alcohol on the night and the accounts of those who said they could not see Tyson at the house on the second occasion must be questionable given problems with lighting and the general confusion of activity.
[53] It can also be said that some of the witnesses individually were simply so unsatisfactory as witnesses that their evidence, even allowing for a less rigid approach, could be dismissed as not credible.
[54] However, we are not satisfied when the matter is considered in the round that we can conclude that the evidence might not reasonably have altered the verdict. The first point we note is that the Crown case against Tyson was not particularly strong. The two witnesses who placed Tyson at the scene, Crystal Norman and Krystal Trethowen, were obviously both affected by alcohol and drugs. We accept Crystal Norman was better placed than some in that she knew Tyson. Krystal Trethowen had only met him once before. However, their ability to see must have been just as affected as that of the new witnesses. Further, Valen Norman who knew Tyson well was unsure both at depositions and at trial as to whether or not Tyson was present. While plainly the jury rejected Mrs Redman’s alibi evidence, the defence could draw some support from the fact that three other witnesses said Tyson had been dropped home earlier.
[55] We accept that trial counsel concluded that calling Paul Finau would not have assisted but perhaps the assessment may have been affected if counsel had known that both Nathan Lumbers and Maka Feki could advance broadly similar accounts.
[56] Secondly, the Crown does not suggest that the witnesses have concocted their accounts. Ms Jelas asked Maka Feki whether he had talked to Tyson Redman about helping him face his charges but he said he had not done so. That line of inquiry was not pursued with any of the other witnesses.[22] This point may not necessarily carry much weight because it must be open to the Court to conclude that there was no other explanation for the evidence than that the witnesses had colluded. However, in this case the absence of Tyson on the group’s second visit is a consistent theme in the witnesses’ police statements. Those statements take on a little more significance in this case because they were made closer to the time in a context where there has been a considerable lapse of time since the offending. (A large part of that delay is explicable by the delay in the processing of the application for the prerogative of mercy.)
[57] In terms of the police statements, when asked specifically about Tyson, Jonathan Ma’u told the police he was not there. Maka Feki said that Tyson was home that night. Sian Wichman said she did not think Tyson was there. Paul Finau (his statement is of course later in the piece as the police cannot find his first statement) says he took Tyson home although he is not sure of the timing. Nathan Lumbers, Pliskin Wichman and Winston Uepi all provide names of persons present but do not include Tyson’s name in these lists. Janine Tatana says she does not really know who was there.
[58] For the reasons given we conclude that the appeal should be allowed. The next question is what should be the consequence. With reference to s 385(2) of the Crimes Act, this Court in Haig discussed three possible options, namely, direct a judgment and verdict of acquittal; direct a new trial; or make such order as justice requires such as a stay.[23] We are not satisfied on the material available that a judgment of acquittal should be entered. As was the case in Haig, if there was a retrial it would be open to a jury to find Tyson Redman guilty. However, the defence now provided by eight witnesses, even with its difficulties but measured against a far from overwhelming Crown case, cannot be dismissed as having insufficient capacity to alter the verdict. Faced with this evidence a jury might well have a reasonable doubt. Accordingly the appeal should be allowed and the convictions, apart from that of unlawful assembly, quashed. In the ordinary course a new trial would be ordered but as the appellant has served his full sentence we do not now order a retrial. It is appropriate also to make an order staying the proceedings.
Result
[59] For these reasons, the appeal is allowed. The convictions for injuring with reckless disregard, injuring with intent to cause grievous bodily harm, and wounding with intent to cause grievous bodily harm are quashed.
[60] There is no order for a retrial. Instead, the proceedings are permanently stayed.
Solicitors:
Crown
Law Office, Wellington for Respondent
[1] R v Wichman DC Auckland CRI-2005-004-2729, 4 November 2007 [sentencing remarks].
[2] R v Ma’u [2008] NZCA 117.
[3] “Reference to the Court of Appeal of the question of the conviction of Tyson Gregory Redman for injuring with reckless disregard, injuring with intent to cause grievous bodily harm, and wounding with intent to cause grievous bodily harm” (1 November 2012) 131 New Zealand Gazette 3761 [Order in Council]. The section is now s 406(1)(a) following an amendment on 5 August 2013. We refer to s 406(a) because that was the form of the section when the Order in Council was made.
[4] A number of the group used to play in a band at church together.
[5] We refer in brackets to the nicknames of the members of the group. These were often the middle names of the group members and were the names by which they were known to each other, which featured prominently in their evidence.
[6] This reflected her evidence at depositions in which she said that she recognised Tyson Redman in the group of those throwing bottles.
[7] We understand that in Mr Fameitau’s video interview with the police, he described Tyson as “fired up” and said that all of the group including Tyson went back to the Norman house on the second occasion. Semisi Ma’u in his interview with the police did not identify Tyson as present at the party on the second occasion.
[8] Ma’u, above n 2, at [38]–[44].
[9] Order in Council, above n 3, at cl 3(3).
[10] At cl 5(2).
[11] At cl 5(2)(b).
[12] At cl 6.
[13] R v Haig [2006] NZCA 226; (2006) 22 CRNZ 814 (CA) at [50].
[14] Lundy v R [2013] UKPC 28 at [120]; and see Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25]; R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27]; and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
[15] At [119].
[16] At [53] citing R v Morgan [1963] NZLR 593 (CA) at 596; R v Dick [1973] 2 NZLR 669 (CA) at 670; Collie v R [1997] 3 NZLR 653 (CA) at 657; and R v Ellis [2000] 1 NZLR 513 (CA) at [18].
[17] At [18] (citations omitted).
[18] An earlier fixture for the appeal had to be adjourned because the Crown belatedly decided it wished to cross-examine the witnesses and there was insufficient time for all of the witnesses to be located prior to that fixture.
[19] Possibly Marcel Wichman.
[20] Charles Toa gave evidence at trial for the Crown. He confirmed that he had a conversation with Jonathan Ma’u who said “they” had taken Mr Toa’s car and then dropped it off.
[21] Sentencing remarks, above n 1, at [26].
[22] There were some questions of Pliskin Wichman about discussions with Tyson Redman but they related to the period whilst Pliskin was in custody on remand at the time of Tyson’s trial.
[23] R v Haig, above n 13, at [107]. The Court also discussed the factors militating against a new trial in that case: at [109].
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