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Uhrle v R [2015] NZCA 412 (4 September 2015)

Last Updated: 11 September 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
BETWEEN
 Appellant
AND
 Respondent
BETWEEN
 Appellant
AND
 Respondent
BETWEEN
 Appellant
AND
 Respondent
Hearing:
2 July 2015
Court:
Winkelmann, Lang and Wylie JJ
Counsel:
A G Speed for Appellant Uhrle P J Kaye for Appellant Tongia L O Smith for Appellant Fesuluai J T Edgar and J M Scott for Appellant Vailagilala W P Cathcart for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeals against conviction are dismissed.
  2. The appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Introduction [1]
Background [3]
Trial
The Crown case [19]
The defence case [30]
The summing up [38]
First ground of appeal for all appellants: did the Judge misdirect
the jury as to the law relevant to party liability under s 66(2)
of the Crimes Act 1961? [41]
Argument on appeal [44]
Summing up in this case [47]
Analysis [56]
Second ground of appeal for all appellants: were the Judge’s
directions as to party liability under s 66(2) inadequate in relation
to manslaughter? [68]
Additional grounds of appeal for Ms Uhrle

(a) Did the Judge’s directions on party liability adequately link

the legal issues to the case for and against Ms Uhrle? [72]

(b) Was the indictment misleading? [78]
(c) Was the Judge’s direction to the jury inadequate in relation to

Ms Uhrle’s defence of withdrawal from the common purpose? [82]

(d) Should the Judge have given a direction to the jury that they

had to be unanimous as to the factual basis for their verdict

against Ms Uhrle? [91]

(e) Did the Judge err in failing to direct the jury under s 122 of the

Evidence Act 2006 in relation to the remarks of counsel for

Mr Vailagilala? [93]
Analysis [96]
Additional ground of appeal for Mr Fesuluai [103]
Additional grounds of appeal for Mr Vailagilala

(a) Conduct of counsel for Ms Uhrle [106]
(b) Admission of knife exhibits [112]
(c) Did the Judge err in relation to the intoxication direction

generally, and in relation to the appellant Mr Vailagilala in

particular? [118]
Sentence appeals [123]
Grounds of appeal [130]
Analysis [133]
Result [140]

Introduction

[1] The appellants were found guilty following a jury trial of the murder of Mr John Li’a. On 30 April 2013, Cooper J sentenced them each to life imprisonment.[1] He imposed a minimum period of imprisonment of 13 years on Ms Uhrle, 15 years on Mr Fesuluai, and 13 years, 6 months on each of Mr Tongia and Mr Vailagilala. Each now appeals conviction and sentence. All advance their sentence appeal on the grounds the sentence imposed on them was manifestly excessive. There is also a degree of commonality in relation to the conviction appeals. All argue that the Judge misdirected the jury as to the law in relation to liability as a party under the provisions of the Crimes Act 1961.
[2] Additional grounds of appeal against conviction advanced by the appellants are as follows:

Background

[3] The victim, Mr Li’a, died as a result of multiple sharp-force injuries that caused him to rapidly bleed to death: injuries that were inflicted on him in the early morning of 14 October 2011. Although the pathologist observed eight stabbing or incision wounds, his evidence was that three of these were fatal.
[4] The events leading up to Mr Li’a’s death were chaotic. They began with a birthday gathering for Ms Uhrle at her house on 13 October 2011. Ms Uhrle lived there with her partner, Mr Fesuluai, and her young son. Although it was Ms Uhrle’s party it seems much of the celebrating was done by a group of younger people who came together at the house. There was a lot of coming and going that night, but the evidence was that at various times during the night of the 13th Ms Uhrle’s daughter, Ms Lillian Siulepa, was present, as was her partner Mr Tongia (although he arrived very late in the evening). Present also was Ms Uhrle’s niece, Ms Brenda Mikaele, and her partner Mr Vailagilala. Ms Mikaele’s friend, Ms Millie Li’a, was also there and at some point Ms Uhrle and Ms Li’a collected Ms Li’a’s brother Mr John Li’a, the victim, and brought him back to the gathering.
[5] A great deal of alcohol was consumed by at least some of the younger people present at the party. Ms Uhrle was apparently upset by the young people’s drunken behaviour and associated noisiness which was keeping her younger child awake. She tried to hide the alcohol. Various confrontations developed and in the course of these she struck Mr Vailagilala in the face and also struck Ms Li’a, again in the face.
[6] After the latter incident Ms Li’a and the victim, together with Ms Mikaele and Mr Vailagilala, left the party and went to a nearby group of shops. They were acting “drunk”. Mr Vailagilala smashed some shop windows and Mr Li’a climbed into one of the shops.
[7] Apparently wanting to patch things up, Ms Uhrle drove from her house and found Mr Li’a and his sister. She invited them back to her address where she then apologised for assaulting Ms Li’a. However Mr Li’a became upset and this caused a further argument to break out. Once again Mr Li’a and his sister decided to leave, but this time as he left Mr Li’a pulled out a neighbour’s letterbox from the ground and used that to smash the rear windscreen of Ms Uhrle’s car. He then threw the letterbox at Ms Uhrle’s front door, shattering one of its glass panes.
[8] Meanwhile Ms Mikaele and Mr Vailagilala returned separately to the house. Shortly after Mr Li’a had smashed in the front door, Ms Mikaele smashed in the back door with a piece of wood. She then left, but Mr Vailagilala went into the house to find their phones and jackets.
[9] While all of this smashing and crashing was happening, Ms Uhrle’s daughter Ms Siulepa was in the bathroom being sick. Ms Siulepa’s partner Mr Tongia was with her looking after her.
[10] A short time later Ms Uhrle left her house in her car, accompanied by her daughter, in pursuit of Mr Li’a and his sister. She found them nearby and a physical fight broke out between Ms Uhrle and Mr Li’a. There are different accounts of what happened in that altercation, but it is likely that blows were exchanged, and Mr Li’a certainly hit Ms Uhrle. Ms Uhrle’s daughter intervened and told Ms Uhrle to leave. Ms Uhrle got back into her car and drove home, leaving her daughter behind with Mr Li’a and his sister. As she left she made threats to Ms Li’a, saying that she was going to get her.
[11] On Ms Uhrle’s return home she told her partner Mr Fesuluai that Mr Li’a had hit her. She collected the three male appellants, Mr Vailagilala, Mr Fesuluai and Mr Tongia. It seems likely that two if not three of these men armed themselves with a number of weapons, as the evidence of the pathologist at trial was that at least four weapons were used in the attack on Mr Li’a.
[12] Ms Uhrle drove the men directly back to where the victim and his sister were. The round trip took her only a few minutes, so it is clear the events occurred in a very narrow time frame. The three men and Ms Uhrle got out of the vehicle. Ms Uhrle proceeded to threaten Ms Li’a. Mr Vailagilala also approached Ms Li’a asking where her brother was, but on catching sight of Mr Li’a ran towards him and tackled him to the ground. All three male offenders then began to assault Mr Li’a.
[13] There were several witnesses to this attack who gave evidence at trial. Ms Siuelpa and Ms Li’a gave evidence. So too did Mr T who lived near where the attack was taking place.[2] He said that he was alarmed by the severity of what he saw, so he armed himself with a machete which he kept in his kitchen, and came out yelling at the three men to stop.
[14] He said he saw Ms Uhrle watching the attack on Mr Li’a. Such was the severity of the beating that he said to her “don’t you feel sorry for him? He might die”. He gave evidence that she replied with words to the effect “that’s what happens”. Ms Uhrle described the exchange in her police interview and said that her response was “he smashed my window”.
[15] At this stage there was a brief break in the attack on Mr Li’a as one of the offenders paused to apologise to Mr T. Mr T thought it was one of the younger men, which excludes Mr Fesuluai. As Mr Vailagilala denied speaking to Mr T it seems likely it was Mr Tongia. This enabled Mr Li’a to stagger to his feet and try to escape.
[16] It was at this point that Ms Uhrle got in to her car and drove off. It was suggested for Ms Uhrle that she had been frightened of the machete and that she drove off to continue her search for her daughter and her niece.
[17] Meanwhile the assault continued on Mr Li’a. He had managed to stagger to the driveway of a nearby property. The three attackers followed him and continued the attack. They dragged him back onto the road where the fight had initially started. Mr T’s description suggests that the physical assault on Mr Li’a became more intense at this stage. He described seeing the “older guy”, Mr Fesuluai, “rag doll” Mr Li’a, that is pick him up, turn him upside down and smash him into the ground. He thought that Mr Li’a’s eyes were fixed open by that time. He also saw Mr Li’a being repeatedly punched and kicked. Another witness saw all three men punching Mr Li’a in the head and kicking his body, stomach, chest, arms and head. No eyewitness describes seeing the use of weapons.
[18] The attack stopped when Mr T, armed with his machete, and two of his friends, confronted the attackers. Mr T said that as the two younger men left they put in a couple of “cheapies”, meaning kicks to the head. Mr T then approached Mr Li’a, who was lying motionless on the ground. He was unable to find a pulse. One of Mr T’s friends called for an ambulance. Ambulance and police officers performed CPR, but soon after confirmed Mr Li’a was dead.

Trial

The Crown case

[19] All four accused were charged with one count of murder without any distinction being drawn between those charged as principals or parties. The Crown’s case was that one of the male accused was the principal offender, but it accepted it could not prove which accused struck the fatal blows. The Crown opened and closed its case on the basis that all accused were liable as parties under either s 66(1) of the Crimes Act (in broad terms, that they intentionally assisted in or incited the charged offence) or under s 66(2) (intention in common with one or more of the other accused to prosecute an unlawful purpose, with knowledge that the crime charged was a probable consequence). Section 66 provides in material part:

66 Parties to offences

(1) Every one is a party to and guilty of an offence who—

(a) actually commits the offence; or

(b) does or omits an act for the purpose of aiding any person to commit the offence; or

(c) abets any person in the commission of the offence; or

(d) incites, counsels, or procures any person to commit the offence.

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

[20] The Crown’s case was that the four set out on the trip to exact revenge for the damage that Mr Li’a had done to Ms Uhrle’s house and car. It said at least two of the men were carrying weapons. At least two, because it was implausible that one assailant had used four different instruments or weapons in the course of the attack. The Crown acknowledged that not all of the weapons were necessarily knives. The pathologist’s evidence was that an object with a sharp surface other than a knife could have caused three of the injuries.
[21] Although the Crown maintained a case against the male accused under s 66(2), it said that its case against them on party liability was brought primarily on the basis of s 66(1). It said that although the jury might not be satisfied who delivered the fatal stab wounds to Mr Li’a, they could be satisfied that whoever did was assisted by the other men disabling the victim in some way, whether by tackling him to the ground, kicking him in the head, or stabbing him with other weapons. In relation to each offender it said as follows:
[22] In relation to s 66(2) liability the Crown said that the common purpose was to locate and attack Mr Li’a with weapons, causing him serious injury. Although each of the three male accused might have had different reasons for entering the common purpose, each wanted to chase Mr Li’a down and cause him serious injury. As to their reasons for joining the common purpose, Mr Fesuluai was Ms Uhrle’s partner and Mr Li’a had smashed their property and hit Ms Uhrle. Ms Mikaele had given evidence that Mr Vailagilala was jealous of Mr Li’a’s relationship with her. The Crown said even if the jury was not satisfied that Mr Tongia had formed part of the agreement, Mr Vailagilala and Mr Fesuluai, together with Ms Uhrle, were in agreement as to the common purpose.
[23] Although the Crown referred to the possibility of the jury finding that one or more of the accused intended to kill Mr Li’a, the Crown said its case focused upon the recklessness limb of murderous intent.
[24] The Crown argued that the requisite knowledge and mens rea for either basis of liability (s 66(1) or (2)) could be inferred from the accused’s knowledge that weapons were taken on the trip to locate Mr Li’a and the overall circumstances of that trip. The Crown said that each accused must have been aware of the weapons because so many weapons were employed in the attack, and because the men obviously gathered them up very quickly: Ms Uhrle’s round trip from her initial attack on the victim until her return with the men took just a matter of minutes. The Crown argued that it was not credible that all four weapons could or would have been concealed on the car trip.
[25] The Crown’s case against Ms Uhrle was different to its case against the men. There was no suggestion that she was one of the attackers. It was acknowledged that her liability was as a party. The Crown’s central allegation was that she rounded up the male accused, knowing that they were armed with weapons, drove them to where she knew the victim would be, and then watched as they set upon the victim. These were the acts of encouragement and assistance relied upon for liability under s 66(1). The Crown said that she also incited or instigated the attack, had knowledge of the men’s intentions to attack Mr Li’a with the weapons and that the three male accused were reckless as to whether death ensued.
[26] The Crown’s case against Ms Uhrle under s 66(2) mirrored that against the men.
[27] The Crown could call in aid against Ms Uhrle a number of her own statements. There was the evidence of what she said to Mr T on the night. In her police statements she admitted threatening Ms Li’a and she also said that when she collected the men Mr Vailagilala had said that he was going to kill Mr Li’a but she had told him to “keep quiet”. The Crown said that she must have known the men were armed. Given the time frames involved in her return trip to Mr Li’a, the Crown said you could infer the men gathered the weapons up in front of Ms Uhrle. They also carried them in the car with her.
[28] Police interviews from Ms Uhrle, Mr Vailagilala and Mr Tongia were played during the course of the Crown’s case.[3] In their statements to the police the two men admitted assaulting Mr Li’a. Neither admitted having a weapon or using one. In their statements all three accused denied that they knew anyone was carrying a weapon. The only reference to a weapon was by Mr Tongia, who said he saw one of the men using a knife during the attack.
[29] Ms Uhrle gave varying accounts over the course of four statements. She initially denied driving the men to the scene. Eventually she admitted that she did so, but said that she wanted to find her daughter and niece, not attack Mr Li’a. She did not know that the men planned to attack him, or that they had weapons.

The defence case

[30] Of the accused, only Mr Vailagilala elected to give and call evidence. His evidence was that he had drunk a lot that night and did not know why he got into the car with the others, although he agreed he heard Ms Uhrle tell her partner that Mr Li’a had hit her, and that he knew Mr Fesuluai and Ms Uhrle were angry at Mr Li’a. He said that when they got to the scene Ms Uhrle ordered them out of the car. He denied that he was the first to hit Mr Li’a. He said that Mr Fesuluai was hitting Mr Li’a, and then Mr Li’a broke away and ran past him. Mr Vailagilala grabbed Mr Li’a by the jacket just to talk to him, but Mr Li’a fell down. He admitted later kicking him, but said that he did that because he was drunk. He said he had drunk about seven drinks before Mr Li’a and his sister arrived at Ms Uhrle’s and that he continued to drink throughout the evening.
[31] By the time of the closing addresses many of the facts were no longer in dispute. It was clear that Ms Uhrle had made the two car trips to find Mr Li’a in the early hours of the morning, and that on the second trip she had taken the three other accused along. It was also clear that it was during that attack that the fatal injuries were inflicted.
[32] The case for each accused was that they did not have a weapon and did not know that anyone was carrying a weapon. There was no common purpose to attack Mr Li’a with weapons. They took issue with the Crown’s case as to why the trip was taken. For instance, Ms Uhrle said she drove the other accused back to where Mr Li’a was to find her daughter and niece. Different motives were suggested by each of the accused for the trip, none of which included an attack on Mr Li’a.
[33] All accused relied on the fact that none of the eye witnesses had seen weapons used on Mr Li’a in support of their case that they did not know of the presence of the weapons.
[34] All of the male accused minimised the extent of their involvement in the violence.
[35] Ms Uhrle’s counsel also, if only briefly, raised the defence of withdrawal. The focus of Ms Uhrle’s defence was that there was no common purpose, and that she did not know the men were carrying weapons.
[36] Mr Tongia’s counsel raised the defences of withdrawal and self-defence. As to the latter, he argued that Mr Tongia had entered the fight not to avenge what had happened at the house, but rather because he saw his girlfriend being pushed over as she tried to stop the fight.
[37] In closing, counsel for Mr Vailagilala characterised Mr Vailagilala as an outsider at the party, who was only there at the end because he was trying to find his and his girlfriend’s jackets and phones. He was only 19 years old and didn’t want to be hit by Ms Uhrle again, so he got into the car when he was told to. He was drunk and so didn’t really know what was going on and played little part in the violence.

The summing up

[38] The Judge gave both oral and written directions to the jury. The oral summing up included directions as to the law on murder and manslaughter, party liability under s 66(1) and (2), the relevance of intoxication to the issues the jury had to consider, and the defences of withdrawal (at that stage raised by both Ms Uhrle and Mr Tongia) and self-defence (relied upon by Mr Tongia).[4] The Judge also summarised the Crown and defence cases.
[39] The written handout to the jury was broken into two parts. The first contained a guide for the jury as to the law in relation to murder, manslaughter, intoxication and party liability. The second part of the handout was in the form of a question trail.
[40] The Judge took the jury through the first part of the written handout in the course of summing up but did not take them through the question trail. When the jury retired, counsel expressed concern about this, so the Judge brought the jury back. The Judge said to the jury that counsel had raised with him that he had not taken them through the question trail. He said he had not intended to do so and continued:[5]

I can do that if you want me to, but they are set out in an order which is designed to step you through various decisions that you need to make in a logical sequence. So you can, I think you know enough about the case by now to do that. And you are not obliged to do that either. It is just a suggestion.

None of the appellants took issue with this particular approach.

First ground of appeal for all appellants: did the Judge misdirect the jury as to the law relevant to party liability under s 66(2) of the Crimes Act 1961?

[41] The appellants all argue the Judge misdirected the jury as to the law in relation to liability as a party, and rely upon the recent Supreme Court decision in Ahsin v R.[6] That case has some similarities to the present, in that the victim was killed in the context of a group attack. However, in Ahsin both appellants took no part in the attack: one of them had driven the car to the scene and both were present throughout the attack. The Crown case against the two accused in Ahsin was that they had either aided or encouraged the principal offender in an assault with murderous intent, or had participated with him in an unlawful common purpose: a planned assault on any members of a rival gang they came across, in which killing with murderous intent was known to be a probable consequence.[7]
[42] The Supreme Court clarified the directions required in relation to s 66(2) as well as other aspects of party liability under s 66 of the Crimes Act. The majority set out the elements the Crown must prove beyond reasonable doubt to establish party liability under s 66(2) as follows:[8]
[43] Addressing how a jury should be instructed in cases where s 66(1) and (2) liability is argued for in tandem, the Chief Justice said:[9]

[32] In considering the evidence, the jury should have been carefully instructed in relation to the legal elements necessary for liability. It was critical that the Judge explain the path to the liability of each accused as parties. Under s 66(1), that explanation entailed the necessity of intention to assist in the assault with murderous intent. Under s 66(2), it entailed the necessity of common intention to assault or intimidate with knowledge that it was a probable consequence of the common intention that one of the other members of the group would assault with intent to kill or would mean to cause bodily injury likely to cause death, being reckless as to whether death ensued. ...

Argument on appeal

[44] The appellants argue that the Judge’s direction on s 66(2) was deficient because the knowledge limb of the direction was limited to a direction that the Crown must prove that the accused was aware that murder or manslaughter was a probable consequence of the prosecution of the common purpose. The Judge did not specifically identify that what needed to be foreseen (or intended) included both the physical and the mental essential elements of the offence. It is argued that all of the material provided to the jury suffered from this deficiency, including the Judge’s handout, and the question trail incorporated within that. The question trail was not helpful because it lumped consideration of s 66(1) and (2) together.
[45] The appellants say the Judge should have directed the jury that in order to prove murder against an accused under s 66(2), the Crown had to prove beyond reasonable doubt that the accused knew a probable consequence of the common purpose was that one of the co-accused would fatally injure Mr Li’a either with intent to kill, or with intent to cause bodily injury and being reckless as to whether death ensued.
[46] The appellants also contend that the directions did not make sufficiently clear when it was that the appellants had to foresee that murder was a probable consequence of the prosecution of the plan. For example in the case of Mr Tongia, the jury might have (incorrectly) concluded that it was enough if he foresaw that risk after he saw Mr Li’a had been stabbed. The appellants argue that the Judge should have directed the jury the accused had to know that murder was a probable consequence of prosecution of the common purpose at the time of or before the fatal blow was struck.

Summing up in this case

[47] The Judge’s instructions to the jury in relation to party liability were preceded by a conventional direction as to the essential elements the Crown had to prove to establish murder and manslaughter. This direction was accurately repeated, although in short form, in the handout to the jury. The Judge first took the jury through the part of the handout dealing with murder and manslaughter.[10] He explained the concept of murderous intent, identifying both limbs relied upon by the Crown but going into greater depth in respect of s 167(b) of the Crimes Act, reckless intent, which was also the focus of the Crown’s case.[11] He explained this aspect of intent as follows:[12]

... The overall issue is whether it is proved beyond reasonable doubt that they actually appreciated that death was a likely consequence of their acts and, by nevertheless acting the way they did, they showed that they were willing to run that risk, that they didn’t care whether or not the assault would result in Mr Li’a’s death. ... one could summarise it by saying that it involves deliberately taking the risk of killing.

[48] At this point the Judge explained manslaughter in simple terms as the appropriate verdict if the jury were satisfied that there was a culpable homicide, but were not satisfied that murderous intent had been proven.[13]
[49] The Judge gave very full directions in connection with party liability under s 66(1). Again he linked this part of his oral summing up to the handout provided to the jury. The handout provided to the jury set out s 66(1) and stated:

To establish liability of an accused as a party to murder under this provision the Crown must prove beyond A reasonable doubt that:

(a) The accused knew that one or more of the other accused intended to assault Mr Li'a so as to cause him bodily injury that they knew was likely to cause death and were reckless as to whether or not death would occur as a result.

(b) The accused intended to help the principal offender or offenders in the assault, or to encourage the others to commit the assault.

(c) The accused actually carried out some act to help or encourage the principal offender(s).

(d) The accused's action in fact assisted or encouraged the offender(s) in the assault.

...

In each case it will be necessary for you to be satisfied beyond reasonable doubt that the accused person knew that a weapon was in the possession of one or more of the accused.

[50] The Judge emphasised that before the jury could find any of the accused guilty as a party to murder they would have to be satisfied that the accused knew about the presence of weapons.[14] He explained that this was because the evidence was that Mr Li’a had bled to death from wounds inflicted with weapons.
[51] The Judge also directed the jury as to what the Crown would have to prove for a verdict of manslaughter on the basis of party liability under s 66(1), reading out the portion of the memorandum to the jury which directed them to the following four elements:[15]
[52] It is not disputed by the appellants that the oral and written directions to the jury reflected all of the key aspects of party liability under s 66(1).
[53] The Judge then moved on in his oral summing up to s 66(2) and dealt with it as follows:

[62] I come on now to s 66(2), on which the Crown also relies. [The Crown prosecutor] relied on the subsection in relation to all four accused, although he put it to you at one stage that it was particularly relevant to the position of Ms Uhrle. The subsection refers to two or more persons having a common intention. Consequently, there need to be at least two of the co-accused who formed that intention. The common intention is to prosecute any unlawful purpose, that is to say, prosecute simply means to carry out any unlawful purpose, and to assist each other "therein". In other words, to carry out that unlawful purpose.

[63] Now where this provision is relied on it is for the prosecution to define what the unlawful purpose is, and in this case, the Crown says that all four of the accused formed a common intention to cause serious violence to Mr Li'a.

[64] In order to establish liability under this subsection, the Crown would need to prove that two or more of the co-accused had formed the common intention to cause serious violence to Mr Li' a, which would, of course, be an unlawful purpose. Secondly, it would be necessary for the Crown to prove beyond a reasonable doubt that the murder was known by the accused to be a probable consequence of the prosecution of that common purpose. Equally, to establish liability for manslaughter under this provision, the Crown would need to show that manslaughter was known by those who had the common intention to be a probable consequence of implementation of the common purpose.

[65] Whether the Crown has met the requisite standard is a matter for you to consider on the basis of all the evidence. In each case, you would need to be sure that the commission of murder, or manslaughter, was known to be the probable consequence of the prosecution of the common purpose in the sense that there was a substantial risk of those crimes being committed.

[66] In this case, I should also note that Mr Tantrum has referred to the common purpose as including the use of a number of weapons on Mr Li’a. So you would have to be satisfied that the common purpose involved the use of weapons. Consequently, under this provision you would have to be sure that those of the accused who you were sure had the common purpose knew that weapons were to be taken to the scene for the purposes of the attack.

[54] Section 66(2) was also addressed in the written handout to the jury as follows:

Section 66(2) of the Crimes Act provides:

Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

To establish the liability of an accused as a party to murder under this provision the Crown must prove beyond a reasonable doubt that two or more of the accused had formed a common intention to cause serious violence to Mr Li’a and that murder was known by those accused to be a probable consequence of the prosecution of that common purpose.

To establish liability for manslaughter under this provision the Crown would need to show that the commission of manslaughter was known to be a probable consequence of the prosecution of the common purpose in the sense that there was a real or substantial risk of manslaughter being committed.

[55] As noted, at the end of the handout given to the jury was a question trail, although the Judge did not take the jury through this section. The question trail was set out as follows:

7. Questions for Decision

(a) Has the Crown proved beyond a reasonable doubt that:

(i) Mr Fesuluai; or

(ii) Mr Tongia; or

(iii) Mr Vailagilala

intentionally assaulted Mr Li'a? Consider the position of each accused individually.

If no, the proper course would be to acquit of either murder or manslaughter. It would follow that Ms Uhrle would also be acquitted.

If yes, then go to question (b)

(b) Has the Crown proved beyond a reasonable doubt that as a result of the assault on him Mr Li'a died?

If no, the proper course would be to acquit all of the accused of either murder or manslaughter.

If yes, then go to question (c).

(c) Has the Crown proved beyond a reasonable doubt that the actions of:

(i) Mr Fesuluai; or

(ii) Mr Tongia; or

(iii) Mr Vailagilala

as a principal directly resulted in Mr Li'a's death?

Consider the actions of each of the male accused. If the answer to the question in respect of any or all of the accused is yes, then go to question (f).

If the answer in respect of any of the accused is no, then go to question (d).

(d) Has the Crown proved beyond a reasonable doubt that the actions of:

(i) Mr Fesuluai; or

(ii) Mr Tongia; or

(iii) Mr Vailagilala

were such that they were parties to the assault that caused Mr Li'a's death, whether under section 66(1) or 66(2) of the Crimes Act?

If the answer in respect of any accused is no, then the proper course will be to acquit that accused.

If the answer is yes, then go to question (f).

(e) Has the Crown proved beyond a reasonable doubt that the accused Ms Uhrle was a party, whether under section 66(1) or 66(2) to the assault that caused Mr Li'a's death?

If not, the proper course will be to acquit her of murder or manslaughter.

If yes, go to question (g).

(f) Has the Crown proved beyond a reasonable doubt that none of the accused acted in self-defence?

If no, then the proper course will be to acquit the person to whom that applies of either murder or manslaughter.

If yes, go to question (h).

(g) Has the Crown proved beyond a reasonable doubt that:

(i) Ms Uhrle;

(ii) Mr Tongia

did not withdraw.

If no, the proper course would be to acquit them of murder or manslaughter.

If yes, go to question (h)

(h) Has the Crown proved beyond a reasonable doubt that the accused or any of them:

(a) intended to kill Mr Li'a; or

(b) meant to cause him any bodily injury that was known by the offender to be likely to cause death, and were reckless as to whether death ensued or not?

In the course of considering this question you will need to ask whether each accused was aware of the presence of knives or other weapons.

If the answer to this question is yes, then the proper course is to convict the accused of murder.

If the answer to this question is no, then the proper course is to convict of manslaughter.

Analysis

[56] To assess the adequacy of the s 66(2) direction, it must be read in the context of the overall summing up. The direction on s 66(2) in the Judge’s oral directions to the jury did not sit on its own, but followed immediately after directions on murder and on s 66(1) liability. In both areas the Judge spent time explaining the requirement of proof of murderous intent as an element of the offence of murder. We consider the reference in the s 66(2) direction to murder linked that direction to the earlier, fuller direction on murder and that this made it clear that the jury had to be satisfied the accused foresaw not just that there would be a killing, but that it would be done with the requisite mens rea.
[57] We note that the jury also had the assistance of the handout which repeated the information as to the elements of murder. We consider that the jury could be trusted to refer back to the definition of murder in the handout.
[58] The directions were also accompanied by an overarching direction that the jury had to be satisfied that each accused knew of the presence of weapons. The Crown had pitched its case on common purpose to the jury on the basis that the plan was to attack with weapons and cause serious injury. If the jury was satisfied that the existence of this common purpose was proved, then the Crown had a strong case that the accused did foresee that Mr Li’a would be killed in prosecution of the common purpose by someone acting with murderous intent. This is no doubt why the focus of the defence case was upon rebutting the existence of that common purpose and knowledge of the weapons, rather than directly upon the issue of murderous intent.
[59] During their retirement the jury asked two questions: one in relation to s 66(2) and the other in relation to s 66(1) and the Judge's interpretation of murder. The questions indicate the jury understood the Crown had to prove that the accused foresaw both the killing of Mr Li’a and also that the killing would be done by someone with the relevant mens rea for the offence of murder.
[60] We set out the transcript of the questions, and the answers provided by the Judge after conferring with counsel:

[200] I understand that you have expressed the wish that the second question be answered before the other one, is that correct?

MADAM FOREPERSON:

[201] Yes.

THE COURT:

[202] The second question, (and I’ll just read it out so you are reminded of the terms of it) is headed Scenario, and it says:

* A, B, C involved in an assault where a person has died.

* A & B had formed a common purpose to commit murder.

* C is unaware of this common purpose ― to commit murder

but did participate in assault.

* Does C’s participation in the assault make him guilty of the
murder under section 66(2) of the Crimes Act?

[203] And the answer to that question is ― No, not under s 66(2).

[204] Now, the second question can be answered if you want me to at this stage but I’d like you to return to your deliberations with the answer given to the s 66(2) question and then let me know if there is any further question that you still want me to answer. All right? Thank you.

JURY RETIRES 2.38 p.m.

JURY RETURNS TO COURT 3.02 p.m.

[205] Madam Foreperson, members of the jury. Thank you for advising us that you do want your first question answered and I’ll just remind you what that was:

Is there anything further you can offer in relation to paragraph 5 of your memorandum s 66(1) and in particular paragraph (a) of Your Honour’s interpretation in relation to murder.

Please see the highlighted section

And attached was the highlighted section which highlighted the paragraph with the (a) in brackets in paragraph 5A of this memorandum.

[206] I have reached, having discussed the position with counsel I am going to give you advice and in the course of it I’m going to refer to A, B and C who are in your second question. All right? Because I think that’s what you want, but if it’s not you will be able to tell me in due course.

[207] So what I’m going to say then, relates in particular to this paragraph with the (a) in brackets in 5A which you want some further information about. So what I advise you now is this.

[208] If the Crown proves beyond a reasonable doubt that the accused, who we’ll call A, knew that one or more of the others, who we’ll call B and/or C, intended to act, or were acting, with murderous intent and from that point the facts set out in paragraphs (b), (c) and (d) of this memorandum applied, then the accused could be guilty of murder under s 66(1).

[209] Now, I’ll say that again. If the Crown proves beyond a reasonable doubt that the accused A, knew that B and/or C intended to act, or were acting, with murderous intent and (b), (c) and (d) of this memorandum also applied after that point, after he’s become aware that the others are acting with murderous intent, then he can be liable for murder under s 66(1).

[61] We accept that the written material provided to the jury does not tease out each of the steps identified in Ahsin. Nor does the question trail separate out s 66(1) and (2). But as we have said, the written material was supplemented by the Judge’s oral directions to the jury and it is artificial to view it in isolation. We also agree that the Judge’s summing up taken as a whole did not follow the model on s 66(2) liability as set out in Ahsin, but then the Judge’s summing up pre-dated that decision. It nevertheless conveyed to the jury the essential elements of liability for murder under s 66(2) for an accused in this case.
[62] It is worth recording that the Judge’s directions did not have the two difficulties identified by the Court in Ahsin. In that case the Judge’s oral instructions to the jury included the statement that the offence committed must have been a probable consequence, which implied a more objective standard.[16] Although there the question trail directed the jury to consider whether each defendant knew the killing was a probable consequence, because there was no oral explanation of this requirement the Supreme Court was concerned that when the jury deliberated on this aspect they did so without any assistance as to the meaning or importance of this legal requirement.[17]
[63] The second deficiency identified in Ahsin in relation to this element was that the summing up and question trail identified only that it was necessary, in order to be liable for murder as a party under s 66(2), for a defendant to be aware that a “killing” was a probable consequence.[18] This did not specifically identify that what needed to be foreseen or intended was both the physical and mental essential facts of the offence, including murderous intent. We have found that this was identified for the jury in this case.
[64] The other aspect of this ground of appeal is the argument that the Judge did not sufficiently identify the time at which the party joining the common purpose had to have the relevant knowledge. It would not be sufficient if the fatal wound had already been inflicted when the accused realised that murder was a probable consequence.
[65] This was how the issue for the jury was characterised by the Judge. In the written handout given to the jury, the Judge directed:

... the Crown must prove beyond a reasonable doubt that two or more of the accused had formed a common intention to cause serious violence to Mr Li’a and that murder was known by those accused to be a probable consequence of the prosecution of that common purpose.

[66] We are satisfied that these directions did sufficiently identify that knowledge of the risk had to exist prior to the infliction of the fatal blow or blows, and that this was also clear from the way in which the case was put to the jury by the Crown. To speak of a probable consequence is to speak of something that could well happen in the future.
[67] To conclude on this point, the Judge’s directions to the jury, when taken in the context of the overall summing up, clearly and repeatedly signposted that before finding liability for murder under s 66(2) the jury needed to be satisfied not just of the actus reus of s 66(2) liability (the joining of the common purpose), but also of the mental element (that murder was known to be a probable consequence of the prosecution of the common purpose), and that these elements all had to be present together prior to the infliction of the fatal blow or blows.

Second ground of appeal for all appellants: were the Judge’s directions as to party liability under s 66(2) inadequate in relation to manslaughter?

[68] The appellants contend that the Judge failed to adequately identify a pathway for the jury to convict for manslaughter under s 66(2) in circumstances where they were not satisfied the defendant knew that murder was a probable consequence of carrying out the common purpose. It is said that the Judge failed to explain that it would be open to the jury to conclude that the person who actually stabbed Mr Li’a had murderous intent, but still find another accused guilty of manslaughter because it was not proved that accused foresaw murder as a probable consequence of joining in an attack on Mr Li’a.
[69] The Judge gave conventional directions to the jury that manslaughter is culpable homicide without proof of murderous intent.[19] This was followed by the directions under s 66(1) to which we have already referred.[20]
[70] He then came on to consider s 66(2). In the directions we have set out above, the Judge identified for the jury that there was a pathway to liability for manslaughter under s 66(2).[21] The jury were instructed to consider this issue if they found murder not proved against that accused on the basis of s 66(2) liability.[22]
[71] The direction was to the effect that liability for manslaughter was made out if the Crown proves that manslaughter was known by the accused to be a probable consequence of the carrying out of the common purpose. As with the murder directions this direction did not stand on its own. It followed on from the directions as to the elements of manslaughter given earlier — culpable killing without murderous intent — and from the detailed assistance given in relation to liability under s 66(1) for manslaughter. The jury also had the assistance of the handout which set out the elements of murder and manslaughter and again, which the jury could be trusted to refer back to. For these reasons, we consider that this ground must also fail.

Additional grounds of appeal for Ms Uhrle

(a) Did the Judge’s directions on party liability adequately link the legal issues to the case for and against Ms Uhrle?

[72] Counsel for Ms Uhrle argues that while the Judge personalised his directions in relation to Ms Uhrle under s 66(1) he did not do so when he came to address her potential liability under s 66(2). For instance, he did not say or nominate who it was that Ms Uhrle was meant to have formed the common intention with. This is said to be a significant failure because there was an argument that Mr Tongia was not party to any common purpose. If Mr Tongia was in fact the principal offender, then an argument could be made that Ms Uhrle had not formed a common intention with him, and could not be guilty under s 66(2) if his acts were not done in pursuance of the common purpose. She says that the same type of argument would apply to the other two co-accused.
[73] We are satisfied that the Judge did link his s 66(2) directions to the issues the jury had to decide, identifying the circumstances in which the common purpose was said by the Crown to have been formed, who was party to it and what was done to carry it out. The summary of the cases for Crown and defence clearly identified the issues in dispute: was there a common purpose, what was it and who was party to it?
[74] As to the composition of the common purpose the Judge summarised the Crown case as follows:[23]

Mr Tantrum submitted that even if Mr Tongia had not been part of the agreement you should conclude that Mr Fesuluai and Mr Vailagilala would have been, together with Ms Uhrle. The fact that weapons had been carried to the scene supported an inference that there was a common purpose as the Crown alleged and they had not left the house to go and have a discussion or a chat with Mr Li’a or simply throw a few punches at him. Once again, in this context, Mr Tantrum emphasised the fact that all four had gone to the scene of the attack together and he invited you to infer that they knew about the presence of weapons.

[75] In discussing the defence case, the Judge drew out that Ms Uhrle denied that she knew of the presence of weapons. He also emphasised her case that there was a lack of common purpose amongst the group and that Ms Uhrle claimed not to have gone out to attack Mr Li’a but rather to find her daughter and niece.
[76] Ms Uhrle's contention that the Judge should have directed the jury about possible permutations in case the person who dealt the fatal blow was not part of the common purpose assumes that the jury could be satisfied who delivered the fatal blows, even though the Crown conceded it could not prove who did inflict those blows. It also involves the rather far-fetched proposition that the jury could be satisfied that there was such a common purpose involving Ms Uhrle and one or two other accused, but that a person who was not a party to the common purpose just happened to deliver the fatal blows. Or, to put it another way, if the Crown satisfied the jury that there was a meeting of minds between any combination of the four to attack Mr Li’a with weapons and cause serious injury, it is difficult to see how anyone amongst the four who did attack Mr Li’a with a weapon or weapons causing his death was not a party to that purpose.
[77] We are therefore satisfied that the Judge’s instructions to the jury did adequately link the s 66(2) directions to the facts relating to Ms Uhrle, and to the Crown and defence cases in connection with Ms Uhrle.

(b) Was the indictment misleading?

[78] It is argued for Ms Uhrle that the indictment was misleading and occasioned prejudice because it charged the four accused with murder and on a plain reading suggested that each accused was charged as a principal. The Crown case was not that Ms Uhrle was a principal as she played no physical part in the fatal attack on the victim, and in fact had departed the scene before those injuries were inflicted. Where, as here, the Crown was able to specify the mode of Ms Uhrle’s participation, it is submitted that the indictment should make clear that the charge is brought on the basis of party liability only.
[79] We are satisfied that there was nothing misleading about the way the Crown framed the indictment. The charge against Ms Uhrle was murder and the Crown made plain throughout the course of the trial the basis on which it put its case. Ms Uhrle was clearly adequately informed of all she needed to prepare and conduct her defence, and the jury were not misled, and could not have been confused, by the form of the indictment.
[80] It is not a requirement that an indictment stipulate whether a defendant is charged as a principal or as a party. Section 343 of the Crimes Act, the relevant statutory provision at the time of trial, provides that:[24]

Every one who is a party to any crime may be convicted either upon a count charging him with having committed that crime, where the nature of the crime charged will admit of such course, or upon a count alleging how he became a party to it.

[81] This was not a case in which the Crown ran alternative, factually-inconsistent cases against Ms Uhrle, and where the Crown might have been required to include particulars as to the basis of the charge. The charge against Ms Uhrle arose out of a single transaction and although the Crown argued for different pathways to liability for each accused under s 66, the Crown relied on the same acts as having caused Mr Li’a’s death. For these reasons the indictment was not misleading.

(c) Was the Judge’s direction to the jury inadequate in relation to Ms Uhrle’s defence of withdrawal from the common purpose?

[82] It is argued for Ms Uhrle that she had a credible defence of withdrawal from the common purpose, which was not adequately put to the jury. On appeal, counsel for Ms Uhrle acknowledges that withdrawal was only touched upon very briefly in opening and closing by trial counsel, as Ms Uhrle’s primary defence was that she did not know any of the other accused had weapons and she was not party to any common purpose. Nevertheless, it is argued that the defence was raised, there was a proper evidentiary basis for it, and the Judge was required to properly direct upon it but he did not.
[83] The evidence of withdrawal came chiefly from the witness Mr T. Mr T’s evidence was that when Ms Uhrle saw the machete, straight away she looked shocked and turned around to take off. He said it was at that time John Li’a staggered to his feet and ran off down to the driveway. In her statement Ms Uhrle says she left to go and find Ms Mikaele, and because Mr Fesuluai told her to go. It was suggested by her counsel that she left because she was frightened of the machete and was also looking for her daughter. There was evidence to suggest that she left to pursue Ms Li’a. In any event, it is argued that the evidence of her departure was relevant to both the s 66(1) and (2) bases for liability because it was evidence of Ms Uhrle withdrawing her support for the attack (s 66(1)) and withdrawing from the common purpose (s 66(2)).
[84] As was said by the Supreme Court in Ahsin, the common law defence of withdrawal must be put to a jury in relation to both s 66(1) and (2) where there is evidence that indicates the reasonable possibility of the availability of defence.[25] The Court said there are two requirements of the common law defence withdrawal:[26]

First, there must be conduct, words or actions, that demonstrates clearly to others withdrawal from the offending. Secondly, the withdrawing party must take reasonable and sufficient steps to undo the effect of his or her previous participation or to prevent the crime. Some actions will be relevant to both the first and second requirements of the defence. For example, clear communication to the other participant(s) of withdrawal from offending may both demonstrate withdrawal and be a step towards prevention of the offence, on the basis that it may dissuade the principal from continuing on the criminal activity alone. Likewise, a clear and communicated countermand revoking earlier instruction, encouragement or advice, will often clearly convey that the party is withdrawing his or her participation and, at the same time, be a step directed undoing the effect of a prior command or support.

[85] It is for the Judge to decide whether the evidentiary basis for both requirements of the defence has been laid.[27]
[86] In this case the Judge did direct the jury on the legal requirements for the defence of withdrawal and linked that to the defence case for both Ms Uhrle and Mr Tongia.[28] He gave conventional directions in relation to what is required for the defence of withdrawal. The relevant part of the direction was as follows:[29]

Mr Bradford pointed out that you might think the evidence suggests Ms Uhrle left at a very early stage. Mr Brown submitted to you that you might conclude on the facts that Mr Tongia had also withdrawn before the attack reached its most serious phase.

...

The Crown does have to satisfy you beyond a reasonable doubt that an accused person did not withdraw. However, to be effective, a withdrawal must be accompanied by notice of withdrawal, whether by words or actions, it must be communicated to the principal offender or offenders or the others involved in the attack and it may only be effected by taking reasonable steps to undo the effect of what the person has done up to that point. You would need to be satisfied of all those matters before deciding that an accused whom you thought would otherwise be liable as a party had withdrawn in that way.

[87] The Judge further expanded upon his directions when he outlined Ms Uhrle’s case. On the topic of withdrawal he said:

[121] It was soon after the attack had commenced that she had left the scene and followed Millie around the corner into Richardson Road. At that point, Mr Bradford submitted that even if you were to conclude that there had ever been an agreement on an unlawful common purpose, as the Crown alleged, she [withdrew] from it at that stage.

[88] The question trail also directed the jury to consider whether the Crown had proved beyond a reasonable doubt that Ms Uhrle did not withdraw.
[89] We consider that taken together this material provides full and careful directions on the legal issues concerning withdrawal, and these issues are adequately linked to Ms Uhrle’s case. However we observe that in our view the evidence at trial did not meet the threshold of raising the reasonably possibility of the defence. First, there was no credible narrative that Ms Uhrle was withdrawing. Whatever the true reason for her departure from the scene, there was no evidence to suggest that she was withdrawing from the common purpose, or that she sufficiently communicated that withdrawal to the others. Secondly, even if Ms Uhrle had been able to cross that evidentiary threshold, there was no evidence that she had taken reasonable and sufficient steps to undo her involvement, support and assistance to that point.
[90] Ms Uhrle had taken various steps by way of encouragement or assistance or, in terms of s 66(2), in prosecution of the common purpose: she had communicated an intention to chase down Mr Li’a and had sought the men’s assistance in this; she had driven them to find Mr Li’a (and we note that she was the one who knew where he could be found) and she stood and watched while the men attacked Mr Li’a. Her action in simply getting into a car and driving off could not in any sense be a sufficient act to communicate any withdrawal to the others, nor could it constitute sufficient and reasonable steps to undo the effects of the earlier acts of assistance, encouragement and prosecution of the common purpose. In light of this, the Judge would have been fully justified in deciding not to leave that defence with the jury. There is nothing in this ground of appeal.

(d) Should the Judge have given a direction to the jury that they had to be unanimous as to the factual basis for their verdict against Ms Uhrle?

[91] Counsel for Ms Uhrle says that this question arises because of the timing of Ms Uhrle’s departure from the scene. On the evidence of Mr T, she left at just the point in time when Mr Li’a managed to stand up and stagger away from his attackers. Counsel says that Ms Uhrle had therefore ceased her involvement prior to the second much more serious and it is suggested, possibly the fatal, assault on the deceased. The jury therefore needed to be satisfied that the fatal wounds had been inflicted upon the deceased before her withdrawal.
[92] However, in light of the view we have taken in connection with Ms Uhrle’s withdrawal defence, we do not need to address this argument.

(e) Did the Judge err in failing to direct the jury under s 122 of the Evidence Act 2006 in relation to the remarks of counsel for Mr Vailagilala?

[93] Counsel for Mr Vailagilala described Ms Uhrle punching Mr Vailagilala in the face, and placed that in its cultural context as a humiliating event that occurred before Mr Vailagilala’s trip to the shops where he broke the shop windows. Counsel then continued in relation to Ms Uhrle:

... She set an appalling example. She expected, it seems, to be able to punch them and then everyone just to carry on. The minute someone did something she didn’t like all hell broke loose. That night she acted like a violent, controlling woman ready to give anyone the biff and expected them just to take it. She went to beat up John and he fought back. She came back and she was enraged and everything that happened from then on was driven by Cecilia Uhrle’s uncontrolled rage and her need for revenge.

[94] Counsel for Ms Uhrle says these comments created unfairness for Ms Uhrle because no notice had been served of an intention to run a “cut-throat defence”, and such an attack was not anticipated. Mr Vailagilala’s defence was that he was not party to any common purpose and that he only threw a punch or two and had nothing to do with the further fight. In those circumstances, it is said that it is difficult to see how his defence was enhanced in any way by suggesting that Ms Uhrle desired serious injury to Mr Li’a. As the attack by counsel for Mr Vailagilala came after the address for Ms Uhrle, counsel for Ms Uhrle had no right of reply.
[95] Counsel for Ms Uhrle argues that in these circumstances it was incumbent upon the trial Judge to make an appropriate comment to the jury in terms of s 122 of the Evidence Act. He should have reminded them that the submissions of counsel could only be used to the extent that they advanced Mr Vailagilala’s defence.

Analysis

[96] It is clear that section 122 of the Evidence Act had no application to remarks made by counsel, as it is a section that deals with directions required in respect of certain categories of evidence. There is also no requirement that counsel give notice of remarks to be made to a jury that are adverse to another accused. Nor do we consider that what occurred in this case required particular direction. Indeed, it is difficult to see what direction could have been given that would do anything other than highlight the issue.
[97] Counsel for Ms Uhrle referred to the case of R v Pearce as authority for the proposition that where an accused proposes to attack the character of another accused, notice should be given.[30] However that case is not authority for the rather general proposition formulated by counsel. The Court in Pearce said that where a defendant proposes to offer evidence that challenges the veracity of a co-defendant or is propensity evidence about a co-defendant, timely written notice must be given, as required by ss 39 and 42 of the Evidence Act.[31]
[98] We also doubt that these criticisms of Ms Uhrle came as a surprise. In one of her statements to the police Ms Uhrle described how Mr Vailagilala had said he would kill Mr Li’a, and she had told him to “keep quiet”. Although this was not admissible against Mr Vailagilala, these co-accused were clearly not running mutually-supportive defences.
[99] Further, there was a proper evidential basis for the submission. The jury had heard evidence of Ms Uhrle striking people during the course of the night: Mr Vailagilala, Ms Li’a and the victim.
[100] Having read through counsel for Mr Vailagilala’s closing address, we also do not agree that the criticisms of Ms Uhrle’s conduct were unrelated to the defence case. Mr Vailagilala’s counsel's strategy was to undermine the Crown’s case that he was party to a common purpose, and to do so by suggesting that he had got into the car and arrived at the scene of the attack out of fear of Ms Uhrle, not because he was party to any common purpose with her. Ms Uhrle’s aggressive conduct throughout the evening and in particular her assault on Mr Vailagilala provided the necessary foundation for this aspect of this defence. It also provided the context for the various acts of vandalism committed by Mr Vailagilala, which could well reduce the seriousness with which the jury viewed those acts.
[101] Counsel for Ms Uhrle interrupted the closing address for Mr Vailagilala to object to the criticisms of Ms Uhrle and how her conduct was characterised. The Judge dismissed the objection for reasons with which we agree. He said:[32]

[5] In a case where the Crown has sought to rely to a large extent on the pattern of events as they have evolved for the purposes of showing potential intent, it is in my view, not improper for one accused to make the kind of points that Mrs Scott is making in the course of advancing a proper defence for her client and I am certainly not in a position to prevent Mrs Scott proceeding in this way.

[102] For these reasons we consider that this ground of appeal must fail.

Additional ground of appeal for Mr Fesuluai

[103] Mr Fesuluai also complains about the Judge’s failure to give a s 122 direction, but he raises the point in connection with the evidence given by Mr Vailagilala. Mr Fesuluai argues the circumstances outlined in s 122(2)(c) were present: evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant.
[104] In the course of describing the attack on Mr Li’a, Mr Vailagilala said he saw Mr Fesuluai bend over and punch Mr Li’a. Counsel for Mr Fesuluai says that this evidence was extremely damaging to Mr Fesuluai and his partner Ms Uhrle, because it linked with Mr Tongia’s statement to the police that he saw Mr Fesuluai leaning over the body and stabbing Mr Li’a. It also linked with the evidence of the expert witness called for Mr Vailagilala, Mr Hampson, who gave evidence as to the significance of the blood patterns on both Mr Fesuluai’s and Mr Vailagilala’s clothing. Mr Hampson’s (very qualified) opinion was that the pattern of blood staining on Mr Fesuluai’s shoes and clothing supported the conclusion that he was kneeling on his left knee with his left arm pointing toward the blood source.
[105] This was not evidence that required a s 122 direction as it was not prejudicial to Mr Fesuluai. As the Judge directed the jury, Mr Tongia’s statement was not admissible against Mr Fesuluai and in any case, the small coincidence of description between Mr Vailagilala’s description and that of Mr Tongia (bending/leaning over) cannot properly be characterised as corroborating the latter. We note that on crossexamination Mr Vailagilala denied seeing Mr Fesuluai crouch over Mr Li’a on the ground. We also do not see the evidence as corroborating the expert’s evidence to any material degree. There is no merit in this ground of appeal.

Additional grounds of appeal for Mr Vailagilala

(a) Conduct of counsel for Ms Uhrle

[106] Mr Vailagilala argues that the conduct of counsel for Ms Uhrle caused unfair prejudice to Mr Vailagilala because counsel for Ms Uhrle:
[107] As to the first ground, during cross-examination counsel for Ms Uhrle asked: “and can you ever recall a time when the people in the village fined your family $500 because of your behaviour, you and your brothers’ behaviour?”
[108] The question was immediately objected to and was not answered. Nevertheless, counsel argues that the question placed adverse and irrelevant material about Mr Vailagilala’s character before the jury, which would have tended to undermine Mr Vailagilala’s own evidence that he had no previous convictions. Counsel notes that there was no application to ask that question, although leave was required pursuant to s 42 of the Evidence Act.
[109] We do not see anything in this point. The question, having been objected to, was not answered by the witness. The question contained no detail as to the supposed conduct, and even then, the conduct that is referred to sounds trivial. We consider there was no risk of prejudice to Mr Vailagilala arising from the question being asked.
[110] The second point raised in relation to the conduct of Ms Uhrle's counsel is the fact that the closing address for Mr Vailagilala was interrupted by an objection from counsel for Ms Uhrle. This is of course the flip side of the ground of appeal raised by counsel for Ms Uhrle. It is argued for Mr Vailagilala that since a closing address is the only opportunity for defence counsel to outline their client’s case to the jury, the interruption was unfair, and could have unjustifiably suggested to the jury that something in Mr Vailagilala’s closing was not correct. This was particularly so when the Judge made no comment to the jury about the reasons for the interruption.
[111] Again we see nothing in this point. In the ebb and flow of a trial, there is nothing unusual about objections being taken and then proceedings resuming as if nothing has occurred. It is also the case that closing addresses can be interrupted by a lunch or tea break. A brief pause of the nature that occurred in this case would have had no impact on the jury’s ability to follow the defence case as it was presented for Mr Vailagilala.

(b) Admission of knife exhibits

[112] The Crown produced four knives at the trial, three of which were found at Ms Uhrle’s address, and one of which was found in the hedge beside an alleyway. All four appellants were found at Ms Uhrle’s address shortly after the incident.
[113] The Crown pathologist gave evidence about the injuries to the deceased, including the knife wounds suffered by the deceased. This included the evidence that probably four weapons were used to inflict the various wounds. The pathologist was asked whether any of the Crown knife exhibits could have caused each of the wounds to the deceased, and the pathologist answered by specifying which of the deceased’s wounds could have been caused by each knife exhibit. His evidence was that he would have expected any knife used to be “heavily soiled”. The evidence of a forensic scientist was that no blood was detected on any of the four Crown knife exhibits, and nor was any DNA.
[114] The pathologist accepted in cross-examination that this evidence was theoretical and also accepted that the knives did not have blood on them. This meant that the knives had either not been used, or had been washed.
[115] It is argued for Mr Vailagilala that the graphic way in which the pathologist outlined which wound could have been caused by each knife was unfairly prejudicial due to the absence of scientific or other evidence that any of the exhibits were the actual weapon or weapons used in the stabbing. It is argued that the exhibits should not have been admitted, or alternatively if they were, there should have been an accompanying direction to the jury to minimise the risk of illegitimate prejudice to Mr Vailagilala. This was particularly so when one of the key issues in dispute was whether Mr Vailagilala was aware of the presence of a weapon. Putting forward the knives in evidence in this fashion gave an impression that these were the knives that had been used in the assault and the jury could have drawn inferences about Mr Vailagilala's knowledge of the presence of a weapon from where those knives were found or the size of the knives.
[116] We consider that the Crown was entitled to produce these knives in evidence. They were knives found in and near to the address of Ms Uhrle, where the accused were also located. One knife was found shoved into a hedge, and the other three were found inside the house. The knives were therefore properly admitted as relevant to the issue of the weapon or weapons used to inflict the fatal injuries, and counsel accepts that no objection was taken to their admissibility at the time. It is also true that the pathologist was crossexamined to great effect in relation to the knives. He accepted propositions that his evidence about whether those knives could have caused the injuries was theoretical only, and that because any knife that had been used would be heavily soiled, the knives in question had either not been used or had been cleaned thoroughly.
[117] The Judge did not direct in relation to this issue, but he was not asked by counsel to give a direction and there was no particular direction required of him. Counsel had the opportunity to, and did address the jury, about the knives produced by the Crown. In closing, Counsel for Mr Vailagilala said:

You know, I'm not sure what the point was of showing you, or talking about, all these knives. The fact that they have produced and shown you so many knives is extraordinary, given that none of them seem to have been used in the attack on John Li'a.

What the jury made of the evidence in relation to the knives was ultimately an issue for them.

(c) Did the Judge err in relation to the intoxication direction generally, and in relation to the appellant Mr Vailagilala in particular?

[118] It is argued for Mr Vailagilala that the intoxication direction given by the Judge was inadequate as it did not provide sufficient assistance to the jury as to how his intoxication was relevant to issues such as recklessness and knowledge. This deficiency was further compounded in Mr Vailagilala’s case by the Judge’s direction that because Mr Vailagilala had accepted in crossexamination that he was “drunk but still aware of what was going on”, the jury “might well conclude that intoxication is not much of an issue”.[33] It is argued that comment effectively suggested to the jury that the issue of intoxication could be set aside for Mr Vailagilala.
[119] We consider that the Judge’s general direction to the jury on the effects of intoxication was adequate. He said of the consumption of alcohol:[34]

... it may be relevant to the state of mind of the accused, in particular as to his intentions, and that is particularly so in a case such as the present when the Crown invites you to infer intent from people’s actions. Alcohol can cloud judgment, and something that would be obvious to someone who was sober might not be seen in the same way by the same person when drunk.

I have just spent some time summarising the various mental elements that the Crown must prove in relation to murder and manslaughter, as a principal and a party. I take as one example the intent to cause bodily injury known to be likely to cause death, one of the elements of murder. The Crown invites you to infer that the accused had that intent. In assessing whether that is an appropriate inference to draw you must have allowed for what you consider was the extent of the accused’s intoxication. If you decided that an accused was so intoxicated that you are left with a reasonable doubt about whether that person in fact formed the necessary intent the Crown would not have proved its case and the result would have to be a verdict of not guilty.

You take the same approach in relation to any of the necessary mental elements that I have told you about that the Crown must prove in relation to the offending.

[120] The Judge included a short form of this direction in the handout he provided to the jury. We do not consider the Judge had to go through each mental element and make explicit the impact of intoxication on each of those elements. The point was made adequately clear in the direction that he did give.
[121] As to the Judge’s comment in relation to Mr Vailagilala, this was a fair account of the evidence. It was preceded by the direction that the jury must consider all of the relevant evidence on the matter, and was followed by a reminder to the jury that the issue remained a matter for them. This of course was a reiteration of the standard direction, given earlier in the summing up, that the jury are the deciders of fact, and that if the Judge expressed any view of the evidence which was different to their view, then they should put his view to one side and apply their own view. The repetition however reinforced the direction in connection with the issue of intoxication.
[122] For these reasons we consider the Judge’s directions to the jury in relation to intoxication generally were adequate, and that he did not mischaracterise or take away from the jury the defence of intoxication as it related to Mr Vailagilala.

Sentence appeals

[123] When sentencing the appellants the Judge described the attack on Mr Li’a as a very savage attack, committed at close quarters, involving the use of at least four weapons and in addition to the fatal wounds, punches and kicks were administered to Mr Li’a both as he was standing and after he had fallen to the ground.[35] The Judge said:

[12] He was essentially overwhelmed by the combination of greater numbers and weapons and I do not consider that it is realistic to distinguish among any of you three male offenders as to your involvement in the circumstances which led to his death.

[124] As to the details of the attack, he said that the assault was commenced by Mr Vailagilala when he tackled Mr Li’a to the ground, and then Mr Fesuluai and Mr Tongia joined in. He thought it likely in the circumstances that each of them used one of the weapons. However he said that ultimately it was not significant whether each of them was armed because they each knew that weapons were being used in the attack and the culpability of the three male offenders was the same.[36]
[125] Although the Crown asked the Judge to impose a minimum sentence of 17 years’ imprisonment or more on each of the accused, on the grounds of s 104(1)(e) of the Sentencing Act 2002, he declined to do so. But he was also not satisfied that a minimum period of imprisonment of only 10 years was appropriate. In reaching this view he took into account the premeditation, the fact that the crime involved the use of four weapons and that it was a murderous assault which continued through and beyond a stage where Mr Li’a would have been totally unable to defend himself. Although the Judge said Mr Li’a’s behaviour earlier in the evening (causing the property damage at Ms Uhrle and Mr Fesuluai’s address) did not justify to any extent the events that followed, it was also an aspect of the case that needed to be taken into account.[37]
[126] For that reason, he adopted a starting point of 15 years’ minimum period of imprisonment for each of the three male accused. He saw no other mitigating circumstances which should influence that outcome other than in the case of Mr Vailagilala and Mr Tongia, their youth (19 years six months, and 19 years nine months respectively). In the circumstances he allowed a reduction of 18 months on account of their age and remorse. Mr Fesuluai could point to no mitigating circumstances.[38]
[127] The Judge however placed Ms Uhrle in a different category.[39] She left the scene at a comparatively early stage and he could not be satisfied beyond reasonable doubt that she would have been present when any of the fatal injuries were inflicted on Mr Li’a. Nevertheless, the attack was underway before she left and she did nothing to stop it. She left because Mr T brandished a machete.
[128] He accepted it was likely the jury had found her guilty under s 66(2) of the Crimes Act. It followed that Ms Uhrle knew that the others were armed and that the four had gone to the scene for the purpose of doing serious violence to Mr Li’a, knowing that his murder might be a consequence. Although she did not physically take part in the assault, she took the other offenders there for that purpose.
[129] He said that a slightly lesser minimum period of imprisonment was appropriate, 13 years’ imprisonment, but he declined to allow any reduction on account of Ms Uhrle’s young child.

Grounds of appeal

[130] Mr Tongia and Mr Fesuluai argue that the starting point adopted was too high having regard to sentences imposed for comparable offending, and that it should have been in the range of 12 to 13 years. For Mr Tongia it was also argued that a lower starting point should have been used because it could not be said for certain that Mr Tongia carried a weapon or that he inflicted one of the fatal injuries.
[131] Counsel for Ms Uhrle submits that the Judge should have differentiated to a greater extent between Ms Uhrle and the other offenders. She left the scene early, and she was not one of the attackers. From that lower starting point the Judge should have allowed further reduction in light of her family circumstances, and in light of her remorse. A letter from her parish priest confirming the genuine remorse she felt was before the Judge.
[132] Counsel for Mr Vailagilala takes no issue with the starting point of 15 years but says that a greater discount from that starting point should have been allowed on account of his lack of prior convictions and the assessment that he was at low risk of reoffending. He notes that Mr Vailagilala received the same discount as Mr Tongia, despite the latter having a prior conviction for assault with intent to injure as well as a medium to high likelihood of reoffending.

Analysis

[133] Counsel for Mr Fesuluai analyses an extensive range of authorities in support of her argument that the starting point for the minimum period of imprisonment for the three male offenders was excessive. We are referred to the following cases: R v McCallum; R v Houma; R v Key; R v Sullivan; Fraser v R; R v Moala & Others; R v Haare; R v Meads; R v Sauaki; R v Wellm.[40]
[134] We do not propose to traverse the facts of each of these cases, or analyse the starting points, because we accept the Crown submission that all the authorities referred to by the appellants are distinguishable on very significant grounds. Although some of the cases referred to involve a similar level of premeditation, some multiple attackers and some multiple weapons, none of the cases involve a premeditated group attack involving the use of multiple weapons by two or more attackers. As the Judge noted, what makes the gravity of this murder stand out is that the attack involved the use of at least four weapons, and all of the accused knew and intended that weapons were to be used.
[135] The fact that the Judge was not satisfied which of the men was armed does not justify a lesser starting point for any of the men. In light of their willing participation in an attack of that nature they are all equally culpable. The starting point was not manifestly excessive in respect of the male accused.
[136] Mr Vailagilala also argued that the Judge erred in not allowing a greater discount to reflect that he was a first-time offender. However, personal circumstances must be weighed against the seriousness of the offence, and there is no requirement for a discount to be given for first time offenders.[41] In light of the serious nature of Mr Vailagilala’s offending, the Judge was correct to put this issue to one side.
[137] Turning to Ms Uhrle’s sentencing appeal, the Judge reduced the starting point by two years to reflect her lesser culpability. That was a more than adequate reduction. We consider it a generous allowance given the role Ms Uhrle played. She was the instigator of the attack on Mr Li’a. The steps she took to facilitate the attack were such that it would not have occurred without her. As to the significance of her early departure from the scene, she left the scene not because she was withdrawing, but because Mr T was brandishing a machete. Her concern was for her own personal safety, and not that of Mr Li’a's.
[138] It was also raised for Ms Uhrle that the Judge failed to take into account her personal circumstances, and the remorse that she expressed. But in offending this serious, the Judge was entitled to put these to one side. We also note that Ms Uhrle’s expressions of remorse came very late, and moreover, only in the context of the sentencing process.[42] We think the Judge was correct to attach no weight to them.
[139] It follows that each of the appeals against sentence must fail.

Result

[140] The appeals against conviction are dismissed.
[141] The appeals against sentence are dismissed.







Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Uhrle [2013] NZHC 922 [Sentencing decision].

[2] We have anonymised the name of the neighbour to protect his privacy.

[3] Mr Fesuluai declined to make a statement.

[4] R v Uhrle CRI-2012-004-4765, 7 March 2013 [Summing up of Cooper J].

[5] At [198].

[6] Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493.

[7] At [1].

[8] At [102].

[9] The Chief Justice agreed the appeals should be allowed due to inadequacies of the summing up, but wrote separately to set out her opinion on withdrawal and jury unanimity.

[10] Summing up of Cooper J, above n 4, at [44]–[49].

[11] At [34]–[39].

[12] At [38]–[39].

[13] At [40].

[14] At [51] and [54].

[15] At [52].

[16] Ahsin, above n 6, at [103].

[17] At [87].

[18] Summing up of Cooper J, above n 4, at [104].

[19] At [40].

[20] See [49]–[52] above.

[21] See [53] above.

[22] Summing up of Cooper J, above n 4, at [65].

[23] At [117].

[24] This is the relevant provision for the proceedings against these accused given they were charged prior to 1 July 2013.

[25] R v Ahsin, above n 6, at [139].

[26] At [134].

[27] At [139].

[28] Summing up of Cooper J, above n 4, at [75].

[29] At [75].

[30] R v Pearce [2014] NZCA 388, (2014) 27 CRNZ 141.

[31] At [34].

[32] R v Uhrle CRI-2012-004-4765, 6 March 2012 (Ruling No. 12 of Cooper J).

[33] Summing up of Cooper J, above n 4, at [71].

[34] At [68]–[70].

[35] Sentencing decision, above n 1, at [11].

[36] At [38].

[37] At [34].

[38] At [39]–[40].

[39] At [41].

[40] R v McCallum CRI 2008-083-2794, 12 February 2010; R v Houma [2008] NZCA 512; R v Key HC Auckland CRI 2006-092-12705, 14 May 2009; R v Sullivan HC Wellington CRI 200948586, 10 February 2010; Fraser v R [2010] NZCA 313; R v Moala HC Auckland CRI 2006-092-461, 12 December 2007; R v Haare HC Wellington CRI 20090856053, 8 April 2011; R v Meads HC Hamilton CRI 2009-019-8828, 31 March 2011; R v Sauaki HC Auckland CRI 2006-092-9497, 31 October 2007; R v Wellm [2009] NZCA 175.

[41] Pitts (aka Engram) v Department of Labour HC Christchurch CRI-2011-409-104, 16 November 2011 at [19]; R v Misitea [1987] 2 NZLR 257 (CA) at 266.

[42] See Ross v R [2014] NZCA 272 at [25].

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