Kiri v R [2021] NZCA 155 (3 May 2021)

Last Updated: 11 May 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA633/2020 [2021] NZCA 155

	BETWEEN	RAWIRI TAKUIRA KIRI Appellant
	AND	THE QUEEN Respondent

Hearing:	16 March 2021
Court:	French, Ellis and Muir JJ
Counsel:	A J McKenzie for Appellant B F Fenton for Respondent
Judgment:	3 May 2021 at 9 am

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

• [1] Following a District Court jury trial, Mr Rawiri Kiri was found guilty of being a secondary party under s 66(2) of the Crimes Act 1961 to an offence of injuring with intent to cause grievous bodily harm.^[1]
• [2] The presiding Judge, Judge Garland, sentenced Mr Kiri to a term of imprisonment of three years and seven months.^[2]
• [3] Mr Kiri now appeals both his conviction and sentence.

Background

The key factual allegations of the Crown case

• [4] The complainant’s partner had sold a member of the Kiri family a cell phone that turned out to be faulty.
• [5] On 7 October 2019, Rawiri Kiri and his brother Lee Kiri travelled along with other members of the Kiri family to the complainant’s address. They were both wearing gang patches and colours. On arrival at the address, Rawiri Kiri got out first carrying a baseball bat. As they walked up the driveway, he handed Lee the baseball bat.
• [6] Lee Kiri entered the house and demanded to know the whereabouts of the girls who had “ripped [him] off”. The complainant approached and said the girls were not there. He gave Lee $15 and a small bag of cannabis indicating that was what had been received for the phone. Lee swung the bat at the complainant. The first swing missed and hit the doorframe. The second swing missed again.
• [7] The complainant then picked up a hammer and chased Lee outside. Rawiri who had remained outside the whole time advanced towards them. Lee swung the baseball bat at the complainant’s head. The complainant raised his hand to protect himself. The bat struck his elbow, fracturing it.
• [8] The brothers then returned to the vehicle and left. They were stopped soon afterwards by police. When the vehicle was searched, police found a baseball bat and a firearm.

The history of the charges

• [9] The brothers were initially jointly charged with aggravated robbery and unlawful possession of a firearm.
• [10] Both men entered pleas of not guilty to all charges.
• [11] In May 2020, there was a sentencing indication based on a proposed plea deal whereby Lee would only be charged with injuring with intent to cause grievous bodily harm and Rawiri would be charged with presenting a prohibited firearm.^[3]
• [12] On 15 May 2020, Lee accepted the sentencing indication and pleaded guilty to injuring with intent to cause grievous bodily harm. He was sentenced to a prison term of two years and ten months.
• [13] Rawiri however rejected the sentencing indication.
• [14] In June 2020, the prosecution amended the aggravated robbery charge against Rawiri to a charge of being a party under s 66 of the Crimes Act to Lee’s offence of injuring with intent to cause grievous bodily harm.
• [15] The trial of Rawiri Kiri commenced on 18 August 2020.
• [16] The jury acquitted Mr Kiri of the firearms charge but found him guilty of injuring with intent to cause grievous bodily harm.

Appeal against conviction for injuring with intent to cause grievous bodily harm

The argument

• [17] Mr Kiri was tried on the basis that he was a party under s 66(2) of the Crimes Act to his brother’s offending. In the leading authority of Ahsin v R, the Supreme Court described the effect of s 66(2) in the following terms:^[4]

[89] Under s 66(2), proof is first required that the defendant formed a common intention with one or more others to prosecute an unlawful purpose and to assist the other(s) in doing that. Each participant in such a common purpose will become liable as a party if one of the others commits an offence while prosecuting the common purpose, whether or not that offence was an intended outcome, as long as that offence was known by the participant to be a probable consequence of the prosecution of that purpose.

...

[102] To summarise, in order to establish party liability under s 66(2), the Crown must prove beyond reasonable doubt that:

(a) the offence to which the defendant is alleged to be a party was committed by a principal offender; and

(b) there was a shared understanding or agreement to carry out something that was unlawful; and

(c) the person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal; and

(d) the offence was committed by the principal in the course of pursuing the common purpose; and

(e) the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.

• [18] In this case, there was no dispute about the first element. The principal offender who had committed the offence to which Rawiri Kiri was alleged to be a party was of course Lee Kiri. Evidence of his conviction for injuring with intent to cause grievous bodily harm was adduced at Rawiri’s trial by way of an agreed statement of fact under s 9 of the Evidence Act 2006.
• [19] It was the second element — the existence of the required shared understanding or agreement to do something unlawful — that was a key issue at trial and now the focus of this appeal. What is contended on appeal is that the Judge misdirected the jury in responding to a question they asked about common purpose.
• [20] In order to explain the argument, it is necessary to outline briefly what happened at the trial.
• [21] In his opening, the prosecutor did not identify the common purpose on which the Crown was relying in any detail. The only comment he made was to tell the jury that the question for them would be whether Rawiri assisted Lee in any way when the latter hit the complainant with the baseball bat and did the jury believe there was a common purpose to do so? That suggested the alleged common purpose was to assault someone.
• [22] In closing the prosecutor told the jury the Crown had to prove that there was:

... a shared understanding or a common intention to carry out something unlawful, namely to use violence, threats of violence, and intimidation in order to resolve the phone dispute. ...

...

... They wanted to threaten and harm him, and they did exactly that.

• [23] Defence counsel, Mr McKenzie, in his closing, told the jury it was accepted there was an agreed purpose between the brothers but it was not to do anything unlawful. Their common purpose was to confront the complainant and get a refund on the phone; to persuade the complainant to pay it back. They wanted to be taken seriously but there was no master plan to beat the complainant up or cause him grievous bodily harm. Lee’s offence was not committed in the course of carrying out the common purpose. It was an unexpected turn of events due to the complainant’s production of the hammer.
• [24] In his summing up, the Judge said the key factual issue for the jury would be whether having regard to all the circumstances, they could properly draw the inference there was a shared understanding or common purpose to go to the complainant’s address with the intention of “using violence, threats of violence and intimidation”. That description of the common purpose with the three conjunctive components — violence, threats of violence and intimidation — was also contained in the written question trail provided to the jury.

• [25] During the jury’s deliberations,^[5] it sought clarification from the Judge about the issue of the common purpose. The jury question read:

We the jury require clarification in regard to charge 2, question 1 of the question trail.

It states that the defendant Rawiri Kiri had a shared understanding that they went to the home of [the complainant] with the intention of using violence, threats of violence and intimidation.

We require clarification on whether their intentions align with one aspect of these or whether it must align with all aspects, e.g violence, threats and intimidation?

• [26] After conferring with counsel, the Judge directed the jury as follows.
• [27] He told them that the shared understanding or agreement between the brothers must be to do something that is unlawful, that is, to commit a criminal offence. The Judge went on to say it would be unlawful to assault a person. He then stated the legal definition of assault and explained that by virtue of that definition, it would therefore be an assault and hence unlawful to use actual violence or to attempt to use violence or threaten to use violence. The Judge then turned to intimidation and explained the elements of the offence of intimidation under s 21 of the Summary Offences Act 1981, namely threatening to injure a person or a member of that person’s family with intent to frighten or intimidate them knowing his or her conduct is likely to cause that other person or family member to be frightened or intimidated.
• [28] Finally, the Judge told the jury:

If the [defendant] and Lee Kiri had an understanding or agreement between them to commit one or more of those crimes that would be sufficient to satisfy the issue posed in [question] 1.

However — before you could be sure that there was a shared understanding or agreement between the 2 men to do something unlawful all 12 of you would need to be agreed what that was — whether it was to commit an offence involving violence and/or to commit an offence involving a threat of violence and/or to commit an offence involving intimidation (in the terms I have explained).

If you cannot reach unanimity on what the shared understanding or agreement was between the 2 men to do something unlawful, then you could not answer [question] 1 with a “yes”.

You would have to be unanimous on just 1 aspect, or on 2, or on all 3, before you could answer [question] 1 with a “yes”.

• [29] On appeal, Mr McKenzie submitted that the Judge’s response to the jury question was a misdirection which would likely have impacted on the outcome, thus giving rise to the risk of a miscarriage.
• [30] In support of that central contention, Mr McKenzie argued that the direction enabled the jury to convict merely on one (most likely the least serious of the three) common intention which was contrary to the basis on which the parties had run their respective cases. The trial had been run on the basis that the alleged common purpose had three components and that the jury needed to be satisfied of all three.
• [31] According to Mr McKenzie, it was wrong for the Judge at such a late stage to in effect “[don] the garb of a prosecutor” and materially amend the Crown case. Mr McKenzie pointed out that the jury’s question suggested it was unable to agree on all three elements of the alleged common purpose and so had the Judge not re-framed the prosecution case in the way he did, the outcome of the trial would likely have been different.

Analysis

• [32] In our view, the Judge’s response to the jury question was correct as a matter of law.^[6] That is to say, s 66(2) of the Crimes Act does not require there to be only one unlawful purpose.^[7] There can be more than one. What matters is whether the multiple purposes are all unlawful. A purpose to use violence is self-evidently an unlawful purpose. So too is a purpose to threaten violence, and a purpose to intimidate as defined in s 21 of the Summary Offences Act. Each of those purposes would in their own right constitute an unlawful purpose within the meaning of s 66(2).
• [33] The key issue is however the point of the trial at which the direction was given. The prosecution had undoubtedly overstated its burden by making the three purposes conjunctive. But was it too late to correct that after the parties had closed their respective cases?
• [34] In our view, the answer to that question and thus the outcome of this appeal depends on the extent to which Mr Kiri was unfairly prejudiced by the late amendment. When pressed by us to identify the prejudice, Mr McKenzie submitted Mr Kiri was prejudiced in several respects. He had lost the real chance of securing an acquittal. Further, he might have pleaded guilty if aware the alleged common purpose did not include violence and thus obtained a lesser sentence. Also, he made his election not to call evidence after the prosecution had closed its case on the basis that the common purpose had three conjunctive aspects.
• [35] We accept that Mr Kiri’s chances of securing an acquittal were probably reduced once the correct legal position was established but do not accept that in itself amounts to unfair prejudice as to create the risk of a miscarriage of justice or an unfair trial.
• [36] Nor do we accept that he was denied the opportunity to make an informed decision about pleading guilty. The authorities are clear that while the prosecution must specify the alleged common purpose, it is given considerable latitude to adjust the formulation of the alleged common purpose during the course of the trial.^[8] The prosecution could have specified the formulation the Judge eventually directed — in response to the jury’s question — in its closing address. It is very unlikely Mr Kiri would have attracted a significant discount if entering a guilty plea at that time.
• [37] Further and in any event, the defence was not that the brothers may only have intended to merely intimidate — that is, threaten to injure so as to frighten the complainant. Rather, the defence was that there was no unlawful common purpose whatsoever. Mr McKenzie expressly submitted to the jury that the brothers had no common intention to do anything unlawful. In those circumstances, we would have expected Mr Kiri to provide a waiver of privilege and some affidavit evidence on appeal as to the nature of the evidence Mr Kiri would have given or called had the Crown closed on a disjunctive common purpose. None was provided.
• [38] We would also have expected Mr McKenzie to have raised this alleged prejudice when the Judge consulted counsel about the jury’s question. It is clear from reading the transcript of the exchange that Mr McKenzie’s main concern was based on a different — in our view mistaken — interpretation of the jury’s question. He appears to have thought the jury was asking whether the brothers had to agree on the same purpose, not whether they the jury had to be unanimous in respect of all three. Plainly, in order for a purpose to be a common purpose, it was necessary for the brothers to share the same purpose. The jury could not have been under any misapprehension on that point.
• [39] The Judge’s direction on common purpose was the only ground of appeal.^[9] It follows that the appeal against conviction is dismissed.

Appeal against sentence

• [40] As mentioned, the Judge sentenced Mr Kiri to a term of imprisonment of three years and seven months.
• [41] In arriving at that sentence, the Judge adopted the following methodology.
• [42] First, he identified the aggravating features of the offending as being pre‑meditation, use of a weapon, attack to the head and home invasion.^[10] These features meant, in his view, that the offending fell within band two of this Court’s guideline decision of R v Taueki.^[11] Band two has a range of starting points of between five and ten years’ imprisonment. Adjusting for the lower maximum sentence under s 189(1) of the Crimes Act gave a range of starting points between three and a half and seven years.^[12] The Judge then considered a number of comparator cases,^[13] and concluded that a starting point of three and a half years’ imprisonment was appropriate to reflect the seriousness of Mr Kiri’s offending.
• [43] Three and a half years’ imprisonment was the same starting point adopted by the Judge who sentenced Mr Kiri’s brother.^[14] That raised the issue as to whether there should be a lower starting point as had been advocated by Mr McKenzie. However in the Judge’s view the brothers were equally culpable.^[15]
• [44] Having reached a starting point of three and a half years’ imprisonment, the Judge then addressed factors personal to Mr Rawiri Kiri. That resulted in an increase to the starting point by three months on account of Mr Kiri’s history of violent offending and the fact that he was subject to post-detention conditions of sentence at the time of this offence.^[16] The Judge then applied a discount of two months for time spent on electronically monitored bail,^[17] resulting in an end sentence of three years and seven months’ imprisonment.
• [45] On appeal, Mr McKenzie takes issue with the Judge’s starting point. He contends the Judge was wrong to consider Mr Kiri equally culpable with his brother. In Mr McKenzie’s submission, Mr Kiri likely only had intention to intimidate, whereas the brother’s intention was to cause grievous bodily harm which was a more serious intention.
• [46] We do not accept that submission.
• [47] In our view, the Judge was entitled to regard the brothers as equally culpable. Even if the jury found the common purpose was solely to intimidate that meant the jury was satisfied the purpose was to threaten the complainant or whomever they encountered at the address with injury. Further, the jury must have been satisfied that Rawari Kiri knew that the use of actual violence causing really serious harm was a probable consequence of that shared intention. Both men donned gang garb. Rawiri was the first to get out of the car. And he was the one carrying the baseball bat. He handed it to Lee and was present when the injury was inflicted. He was, as Ms Fenton submitted for the Crown, integrally involved in the offending.
• [48] We are further satisfied that the starting point was consistent with the case law the Judge referred to and within range. No issue is taken with the Judge’s approach to personal aggravating and mitigating factors.
• [49] We conclude the end sentence was not manifestly excessive.
• [50] The appeal against sentence is accordingly dismissed.

Outcome

• [51] The appeal against conviction is dismissed.
• [52] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 189(1).

^[2] R v Kiri [2020] NZDC 21748 [Sentencing notes].

^[3] There was a suggestion in some of the witness statements that a person had been seen carrying a firearm.

^[4] Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 per McGrath, Glazebrook and Tipping JJ.

^[5] The Court’s trial log records the question having been asked an hour and 30 minutes after the jury had retired to consider its verdict.

^[6] According to the Crown, the direction was contrary to Ahsin v R, above n 4, at [170]–[180] and hence incorrect in requiring the jury to be unanimous on the same common purpose but it was an error that favoured the defence. The appellant says the Judge was correct to require unaminity. It is not necessary for us to resolve that argument.

^[7] As the Supreme Court stated in Ahsin v R, above n 4, at [102(b)], s 66(2) requires “there was a shared understanding or agreement to carry out something that was unlawful”. That does not preclude there being many separate agreements to carry out different unlawful things, each sufficient to support liability under s 66(2).

^[8] Ahsin v R, above n 4, at [242] per William Young J; and Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445 at [49].

^[9] A second ground of appeal relating to a Crown witness being declared hostile was abandoned.

^[10] Sentencing notes, above n 2, at [31].

^[11] At [35], citing R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[12] At [36].

^[13] Kulimoeanga v R [2016] NZCA 129; Taingahue v R [2016] NZCA 557; Mackwood v Police HC Auckland CRI-2011-404-337, 17 November 2011; Rongonui v R [2017] NZCA 206; R v Ati HC Auckland CRI-2006-092-16228, 24 April 2008; and Morgan v R [2009] NZCA 341.

^[14] R v Kiri DC Christchurch CRI-009-9126, 8 May 2020 [Sentencing indication]; and R v Kiri [2020] NZDC 14895 [Sentencing notes of Lee Kiri].

^[15] Sentencing notes, above n 2, at [61].

^[16] At [62]–[63].

^[17] At [69].