Kuru v R [2023] NZCA 150 (5 May 2023)

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA182/2022
[2023] NZCA 150

	BETWEEN	DAMIEN SHANE KURU Appellant
	AND	THE KING Respondent

Hearing:	26 October 2022; (further submissions 22 February 2023)
Court:	Collins, Muir and Cull JJ
Counsel:	C W J Stevenson and J H C Waugh for Appellant S K Barr and H S Cunningham for Respondent
Judgment:	5 May 2023 at 9.30 am

The appeal against conviction is dismissed.
____________________________________________________________________

Collins and Muir JJ [1]–[81]
Cull J (dissenting) [82]–[123]

COLLINS AND MUIR JJ

(Given by Collins J)

[1] On 21 August 2018 Mr Ratana was shot dead at his partner’s home at 144 Pūriri Street, Whanganui. Mr Ratana, who was a member of the Mongrel Mob, was shot after a number of Black Power members went to his partner’s home with firearms and other weapons to intimidate Mr Ratana and persuade him to leave the neighbourhood. Black Power considered the area where Mr Ratana was staying as their territory.

[2] Mr Damien Kuru (Mr Kuru), who was the president of the local chapter of the Black Power, was not part of the group who went to Pūriri Street. He initially remained at 60 Matipo Street, located approximately 300 metres from where Mr Ratana was shot. That address was Mr Kuru’s home and the Black Power headquarters. Before the shooting Mr Kuru walked a short distance along Matipo Street towards the local school. At about the time of the shooting Mr Kuru was seen on Tiki Street, which links Pūriri and Matipo Streets. At that stage he was about 100 metres from where Mr Ratana was shot.

[3] Seven Black Power members were charged with having murdered Mr Ratana and with participating in an organised criminal group. Before trial, Mr Rogerson, one of the defendants, pleaded guilty to being a party to murder. Three other defendants (Messrs Box, Fantham-Baker and Anthony Kuru) pleaded guilty to manslaughter. Mr Newton, one of the seven originally charged with Mr Ratana’s murder, had the charge against him dismissed pursuant to s 147 of the Criminal Procedure Act 2011. Mr Box and Mr Anthony Kuru also pleaded guilty to participating in an organised criminal group. Mr Friesen was also involved, but was granted immunity from prosecution and gave evidence for the Crown at the trial.

[4] Mr Kuru and Mr Runga, the Sergeant-at-Arms and a senior member of the local Black Power chapter, proceeded to trial and were found guilty of having been parties to the manslaughter of Mr Ratana. The charges against them of having participated in an organised criminal group were dismissed pursuant to s 147 of the Criminal Procedure Act.

[5] Mr Kuru was sentenced by Ellis J on 24 February 2022 to five years and two months’ imprisonment.^[1] He appeals only his conviction.

[8] The relevant parts of the definition of miscarriage of justice set out in the Criminal Procedure Act state:^[3]

miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

[9] The conflict between Mr Ratana and Black Power commenced when Mr Ratana started living with Ms Herewini, whose home was within an area commonly regarded as Black Power territory in the Whanganui suburb of Castlecliff, sometimes referred to by locals as the “Cliff”.

[10] The clashes between Black Power and Mr Ratana included Black Power members carrying out “drive-bys” of Ms Herewini’s home while shouting out Black Power slogans. On 14 August 2018 there was an encounter between Mr Ratana and members of Black Power, when a crowbar was thrown at Mr Ratana’s car. Mr Ratana responded by producing a firearm, thereby causing the Black Power members to back down. Ms Herewini explained at the trial that she and Mr Ratana decided to move from Castlecliff after this incident. Unfortunately, however, the events of 21 August 2018 prevented those plans from taking effect.

[11] On the morning of 21 August 2018, members of Black Power began preparing to intimidate Mr Ratana. At about 8.50 am, Mr Runga went to visit Mr Friesen who, at the time, was a member of Black Power. Mr Friesen was staying at 73 Matipo Street. Mr Runga told him there was going to be a “rumble” at “that house on Pūriri”. Mr Runga showed Mr Friesen a sawn-off double-barrel shotgun that was on the floor of the Nissan Primera he was driving and told him to meet the others at Matipo Street, meaning outside Mr Kuru’s house. Mr Friesen was subsequently granted immunity from prosecution and gave evidence for the Crown at the trial.

[12] Mr Runga and Mr Fantham-Baker, whose house was also on Matipo Street, then drove to Mr Runga’s address in Rimu Street, Castlecliff. Present at Mr Runga’s house were Mr Newton and Mr Box. Mr Rogerson and Mr Anthony Kuru arrived at Mr Runga’s address shortly thereafter. The group gathered together more weapons and took some bandanas to disguise themselves.

[13] At about 9.20 am the Black Power group left Mr Runga’s home in the Nissan Primera and a Holden Commodore. Those in the Nissan Primera initially drove to 144 Pūriri Street where the vehicle stopped. One member of the gang got out of the car and started directing abuse towards the occupants of Ms Herewini’s house. The attempt to intimidate Mr Ratana was disrupted, however, when a bus stopped close to 144 Pūriri Street. The Black Power group then drove to Matipo Street and parked adjacent to Mr Kuru’s house.

[14] A group of Black Power members, including Messrs Box, Fantham-Baker and Anthony Kuru, then walked from 60 Matipo Street (Mr Kuru’s home) to 144 Pūriri Street (Ms Herewini’s home). They were armed with poles, batons, and a hammer. In the meantime, Mr Rogerson drove in the Holden Commodore and parked in Pūriri Street near Ms Herewini’s home. Mr Runga drove the Nissan Primera and also parked close to Ms Herewini’s home. They were followed by Mr Friesen who was in a Hyundai Coupé. Mr Runga still had possession of the sawn-off double-barrel shotgun, while Mr Rogerson had a full-length shotgun. Both shotguns were loaded with cartridges containing conventional lead shotgun pellets.

[15] When the Black Power members who walked to 144 Pūriri Street arrived at that address, Anthony Kuru yelled out to Mr Ratana “you’ve got a week to get out of the Cliff or you’re dead”.

[16] The men on foot moved up the driveway and began to strike Mr Ratana’s car with their weapons.

[17] At about 9.35 am Mr Ratana came out of Ms Herewini’s home. He was carrying a sawn-off loaded shotgun and he was wearing Mongrel Mob regalia. Most of the Black Power members took cover. One member of the Black Power group fired a shotgun that was loaded with a single lead slug. The slug hit Mr Ratana in the neck and instantly killed him. The weapon that fired the slug has never been recovered. Mr Rogerson then fired two shots from his shotgun at the house, spraying it with pellets. Those shots were intended to provide cover to the members of the Black Power group who were on foot and needed to get away from the scene.

[18] Members of the Black Power group quickly dispersed. Messrs Box, Fantham‑Baker, and Anthony Kuru quickly walked back to the vicinity of Mr Kuru’s address where Mr Runga was waiting in the Nissan Primera. All three got into that vehicle and left the area. Mr Newton left on foot while Mr Friesen drove away in the Hyundai and Mr Rogerson drove away from the scene in the Holden Commodore.

[19] The Crown case was presented on the basis that, as president of the local chapter of Black Power, Mr Kuru must have known about the gang’s intention to intimidate Mr Ratana into leaving the area and that he would also have approved of the plan. The Crown accepted, however, there was no evidence of Mr Kuru having played a direct role in either the formation of the plan to intimidate Mr Ratana or its execution.

[20] A significant portion of the Crown’s case against Mr Kuru hinged upon the evidence of Detective Inspector Scott concerning gangs in New Zealand. We will explain the key parts of that evidence at [27] to [29].

[21] As we have noted at [2] Mr Kuru was seen on Tiki Street at about the time of the shooting. The jury were shown photographs taken by a member of the public, showing four men walking from Tiki Street into Matipo Street shortly after the shots were fired. Mr Kuru was seen walking towards his property ahead of the men who came from Tiki Street. Another photograph shows Mr Kuru standing behind the fence of his property just before the Nissan Primera left the area. The civilians who saw those events agree there was no interaction between Mr Kuru and the four Black Power members who walked from Tiki Street and headed towards the Nissan Primera parked in Matipo Street.

[23] Ms Smith is the principal of the school situated on Matipo Street, the entrance to which is about 150 metres from Mr Kuru’s house. She was called as a witness by the Crown and explained Mr Kuru was scheduled to attend a meeting with a teacher at the school at 10.00 am on the morning of 21 August 2018. It was submitted on behalf of Mr Kuru that meeting explained why he was on Matipo Street at about 9.35 am and that he was diverted into Tiki Street by the sound of loud voices coming from Pūriri Street just before the shots were fired at Ms Herewini’s house. The Crown argued, however, that Mr Kuru could easily have kept the 10.00 am appointment if he had left his house well after 9.35 am. The Crown argued that Mr Kuru was close to Pūriri Street because he was anticipating the attack on Ms Herewini’s house and was keeping an eye on proceedings, albeit from a distance.

[24] The jury also heard evidence that Mr Kuru was told about the shooting by police during the course of the afternoon of 21 August and that he immediately got his family to a safe location and barricaded his house.

[25] Mr Friesen said in his evidence that the day after the shooting Mr Kuru called a meeting of Black Power members. He said Mr Kuru was very angry during the course of that meeting and wanted to know what had happened to Mr Ratana and who was responsible for the shooting. The defence submitted this was compelling evidence that Mr Kuru played no role in the attack on Mr Ratana. The Crown argued, however, that Mr Kuru’s conduct during the meeting on 22 August 2018 was a ruse designed to provide evidence to support his position. In any event, said the Crown, Mr Kuru was photographed walking away from the general vicinity of the shooting on 21 August and must have known what had happened on Pūriri Street. Mr Friesen also said in his evidence that Black Power members knew there was a serious possibility the Mongrel Mob would retaliate for the attack on Mr Ratana.

[26] Mr Kuru did not give evidence. He told the police, however, that he had nothing to do with Mr Ratana’s death and that he was on his way to meet a teacher at his son’s school when he heard the shots that were fired at Ms Herewini’s house.

[27] Detective Inspector Scott who, at the time of giving his evidence was a manager in the National Criminal Investigation Crime Group at Police National Headquarters, had spent most of his professional career in the Criminal Investigation Branch in the Gisborne area. He prepared “[his] statement as a [d]etective with numerous years’ experience investigating gang related activity.”

[29] Prior to trial, Ellis J ruled aspects of the paragraphs we have set out above could not be adduced by the Crown. The Judge said that:^[5]

... to the extent [Detective Inspector] Scott wishes to opine on the matters in paragraphs 42 and 43 [of his brief], they need to be reframed in a more contingent way, and by reference to his experience (“in my experience it is unlikely that ...”).

In my experience a (serious) organised gang crime against another gang would likely occur with the sanction of the president. This is due to the obvious risks and consequences that the particular gang would be exposed to which would likely include intense scrutiny by the [p]olice and serious retaliation by the opposing gang.

[30] Mr Keegan, counsel for Mr Kuru at trial, did not cross-examine Detective Inspector Scott. A brief of evidence had been obtained by the defence team from Dr Jarrod Gilbert, an expert on gang culture in New Zealand, but Dr Gilbert was not called as a witness at the trial.

[31] In its closing address, the Crown relied extensively on Detective Inspector Scott’s evidence. Mr Wilkinson-Smith, senior counsel for the Crown, commenced his closing address by saying:

... I want to start with the evidence from the gang expert, Detective Inspector Craig Scott, because this is a gang shooting and it’s that gang context that I suggest this whole event needs to be looked at and considered in. That’s the lens, if you like, that we should look through to understand what has gone on here and put briefly, Detective Inspector Scott provides us with that lens.

Here we have, from Detective Inspector Scott, the undisputed reality of what gangs are actually like in New Zealand and particularly the Black Power and Mongrel Mob. You’ll remember he told us he’s an expert because he’s worked in the field of policing with gangs in the last 30 years and has become a national expert but really he told us the core of his experience comes from his work as a policeman, I think, in Gisborne, and particularly working with the Mongrel Mob and Black Power there and getting to know that world. So just to remind you I’m going to go through and look at the evidence that puts this into the gang context and tell you about what Detective Inspector Craig Scott said about the gang context. ...

... he spoke about how attending gang meetings and obeying the orders of senior members of the gang, how essential that was. And then of course he talked about the particular roles of the senior members, the role of the president ...

... The next I think is particularly important for Mr ... Kuru one of the defendants, because his view was that, sorry, Detective Inspector Scott’s view of the role of the president was that he has the final authority over all chapter business and its members. So final authority over all chapters’ business and it’s going to be obvious what I’m going to suggest to you as judges of facts that you’ll find it obvious that [Mr] Ratana, a Mongrel Mob gang member, the rival of the Black Power living on Black Power turf, on their turf, would have been absolutely at the top of their agenda.

[32] In her summing up, Ellis J gave the jury the standard directions about the purpose of expert evidence and how it could be considered by the jury. The Judge then said the following in relation to Detective Inspector Scott’s evidence:

[46] You might want to think about what I’ve just said particularly in relation to the gang expert, Detective Scott. His evidence is quite an important plank of the Crown case against Mr Kuru in particular. But when deciding what use you can make or weight you can place on it, you need to think about what Mr Keegan said about that too. Detective Scott was giving generalised evidence based on his evidence as a police officer of working with—and as Mr Keegan would put it, against—gangs in New Zealand. He did not say anything specific about Black Power Wanganui, and he did not say anything specific about Mr Kuru or, indeed, Mr Runga. His evidence was not based on or specifically related to the facts of this case. You are the ones who know about those. So, despite Detective Scott’s general expertise, you need to think about what weight his evidence can carry, the extent to which his generalised evidence can help you draw any specific conclusions about Mr Kuru’s role in the events relevant to this case.

[33] Before the trial Mr Kuru applied to have the charges against him dismissed pursuant to s 147 of the Criminal Procedure Act. It was argued on behalf of Mr Kuru there was not sufficient evidence to enable a properly directed jury to reasonably convict him.

[34] That application was dismissed by Thomas J.^[6] At the time, the defence were intending to call evidence from Dr Gilbert, who said in his brief of evidence that caution should be exercised when considering the evidence of Detective Inspector Scott’s reliance on traditional views of gangs. Dr Gilbert said gang skirmishes occur with little planning and quickly escalate out of control. Dr Gilbert said that a president of a gang will not inevitably be able to exercise authority over a rebellious and difficult gang member. As we have noted, however, Dr Gilbert was not called as a witness at the trial.

[35] In dismissing the s 147 application Thomas J reasoned that any conflict or challenge to the evidence of the various eyewitnesses and the expert witnesses would be for the jury to resolve.^[7]

[36] At the conclusion of the Crown case Ellis J dismissed another application brought by Mr Kuru pursuant to s 147 of the Criminal Procedure Act. The Judge has now provided the reasons for her decision.^[8]

[37] In summary, Ellis J was satisfied that there was sufficient evidence for the jury to reasonably convict Mr Kuru. The Judge said that if “[v]iewed holistically”, the evidence relied upon by the Crown was “capable of supporting the inference that Mr Kuru knew about the plan [concerning Mr Ratana] and sanctioned it.”^[9]

[38] Ellis J summarised in the following way the evidence relied upon by the Crown when opposing the s 147 application:^[10]

[39] When discussing the defence arguments in support of the s 147 application, Ellis J noted:^[11]

... there were other, innocent, reasons for Mr Kuru to be on Tiki Street at the time of the attack. There was evidence that he had been walking to an appointment at 10 o’clock that morning at his son’s school ... and had been diverted up Tiki Street when he heard noise coming from Puriri Street.

... the evidence of Mr Friesen that, after the shooting, Mr Kuru called a meeting where he was angry and demanded to know who was responsible. ...

[41] There is some overlap between the test to dismiss a charge under s 147 of the Criminal Procedure Act and the ground of appeal in s 232(2)(a) of the Criminal Procedure Act, which permits an appeal to be allowed if the verdict was unreasonable having regard to the evidence.

[42] In Owen v R, the Supreme Court said the following about the ground of appeal in s 385(1)(a) of the Crimes Act 1961 which was, in all material respects, the same as s 232(2)(a) of the Criminal Procedure Act:^[13]

A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.

[44] After receiving Ellis J’s reasons for dismissing the s 147 application, counsel for Mr Kuru and the Crown filed further submissions in this Court.

[45] Mr Stevenson submitted there is a crucial difference between the analysis required under s 147 and the test for allowing an appeal under s 232 of the Criminal Procedure Act. He explained the test under s 147 is whether a properly directed jury “could” not reasonably convict a defendant. According to Mr Stevenson, the assessment under s 232 is not whether the jury could have convicted the appellant, but whether or not they ought to have done so. Mr Stevenson said this was “an altogether different test.”

[46] We do not accept Mr Stevenson’s analysis. The test under s 232 is whether the jury’s verdict was unreasonable having regard to the evidence. Inquiring into what the jury ought to have done risks this Court substituting its view of the guilt or innocence of the defendant for that of the jury. Such an approach would be contrary to what the Supreme Court said in Owen v R:^[15]

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

[47] The following are the principal reasons why we conclude the jury’s verdict was not unreasonable. The jury could reasonably have inferred:

[48] We have had the opportunity to consider the dissenting judgment of Cull J. We make the following observations about her reasons for concluding the jury’s verdict was unreasonable:

For the reasons we have explained, we are satisfied, after having regard to all the evidence, that the jury’s verdict was not unreasonable.

Second ground of appeal: Was Detective Inspector Scott’s evidence admissible?

[49] The second ground of appeal may be conveniently distilled to the following three contentions:

[50] As we have noted at [31] and [32], the Crown relied extensively on the evidence of Detective Inspector Scott concerning:

[51] When Ellis J ruled before trial that Detective Inspector Scott’s modified evidence was admissible, she explained:^[16]

[52] The proposed evidence from Detective Inspector Scott, as modified in the way we have set out at [29], therefore satisfied the criteria for the admissibility of expert evidence set out in s 25(1) of the Evidence Act 2006 and was therefore able to be adduced by the Crown.

[53] Mr Stevenson, senior counsel for Mr Kuru in this Court, did not go so far as to argue police officers should never give expert evidence for the Crown on gang issues. Rather, Mr Stevenson said Courts should be cautious about allowing police officers to give expert evidence and that Ellis J failed to exercise the requisite level of caution in this case.

[54] In Thacker v R, this Court held Detective Inspector Scott could give expert evidence in a trial of three defendants who were facing a number of charges of rape.^[17] The Crown adduced evidence from the Detective Inspector concerning the characteristics and customs of the Tribesmen gang to support its contention that the alleged rapes were conducted on the instructions of a patched member of the Tribesmen gang and complied with by the defendants as a prerequisite to their admission to the Tribesmen gang. Mr Stevenson did not challenge the appropriateness of this Court’s decision in Thacker. Mr Stevenson acknowledged that in that case Detective Inspector Scott’s evidence provided contextual information to help the jury interpret the direct evidence concerning the instruction to the defendants to rape the complainant. Mr Stevenson said that situation was different from the case before us because Detective Inspector Scott’s evidence in Thacker informed the jury why the defendants might rape someone just because another person told them to do so. Understanding the dynamics of gang culture and admission to a gang helped explain that aspect of the Crown case in Thacker.

[55] In the United Kingdom, questions about the appropriateness of police officers providing expert evidence in criminal trials has been settled. For example, in R v Oakley, Lord Widgery CJ stated on behalf of the Court of Appeal of England and Wales:^[18]

... we would like to make it quite clear straight away that there is no question of a police officer being prevented from giving evidence as an expert if the subject in which he is giving evidence as an expert is a subject in which he has expert knowledge, and if it is restricted and directed to the issues in the case.

[56] Similarly, in Myers v R,^[19] the Privy Council said, when determining an appeal from Bermuda, that police officers may give evidence about gangs provided they satisfy the usual qualifications required of an expert and adhere to the rules that govern the giving of expert evidence.^[20] The Privy Council recognised that it can be difficult for a police officer to be an expert when they are effectively combining the duties of an investigator with that of an expert:^[21]

It is particularly important that such a witness should fully understand that once he is tendered as an expert he is not simply a part of the prosecution team, but has a separate duty to the court to give independent evidence, whichever side it may favour.

[57] In questioning the appropriateness of Detective Inspector Scott giving evidence in this case, Mr Stevenson drew support from a dissenting judgment of the United States 10th Circuit Court of Appeals in which the appellant argued a trial court erred when it allowed a police officer to give expert testimony about gangs.^[22] As was noted however in the dissenting judgment, in appropriate circumstances law enforcement officers can give evidence about gang associations in federal trials in the United States.^[23]

[58] We agree with the approach taken by this Court in Thacker and by the Privy Council in Myers. Police officers may be qualified as experts and be permitted to give expert evidence provided the usual rules concerning the qualification of experts and the way they give their evidence is strictly adhered to.

[59] In the present case, Detective Inspector Scott qualified himself as an expert in relation to gang structures and culture in New Zealand. He has extensive experience in this area of police investigation. The evidence which Detective Inspector Scott gave was relevant to an issue in the trial and, as Ellis J determined, his evidence was likely to be substantially helpful to the jury who were unlikely to have been familiar with gang structures and culture in New Zealand.

[60] We therefore conclude that Detective Inspector Scott was not disqualified from giving expert evidence in the trial simply because he was a police officer.

Detective Inspector Scott’s ability to give evidence about the Whanganui Black Power

[61] The second point urged upon us by Mr Stevenson was that Detective Inspector Scott was not qualified to give evidence about the Whanganui chapter of the Black Power. Mr Stevenson submitted that the culture and power structures of gangs varies from region to region in New Zealand. He referred to Dr Gilbert’s brief of evidence prepared for the trial to support this proposition.

[62] The difficulties with this part of Mr Stevenson’s argument can be succinctly stated. First, Detective Inspector Scott’s evidence was not challenged at trial. He explained his expertise. No issue was taken with his ability to be able to comment on the structures and culture of the Black Power, Whanganui. Had there been a challenge to that evidence, perhaps supported by the proposed evidence from Dr Gilbert, then we would be better positioned to assess whether or not Detective Inspector Scott trespassed beyond his area of competence when commenting on the command and control structures of the Black Power in Whanganui.

[63] Second, as we have noted, Dr Gilbert did not give evidence at the trial. No application was made to adduce further evidence, and even if we were to allow Dr Gilbert’s brief to be adduced as fresh evidence before us, the Crown has had no opportunity to challenge Dr Gilbert’s evidence.

[64] We therefore reject the argument that Detective Inspector Scott’s evidence lacked probative value in relation to the culture and power dynamics of the Whanganui Black Power. The evidence was relevant and not inadmissible under s 7 of the Evidence Act.

[65] We accept Detective Inspector Scott’s evidence was prejudicial to Mr Kuru. It was, however, not unfairly prejudicial primarily because Ellis J provided very clear directions to the jury on what permissible use they could make of the Detective Inspector’s evidence.

[66] We therefore conclude that Detective Inspector Scott had the ability to give evidence about the Whanganui Black Power.

[67] The modified evidence of Detective Inspector Scott went close to answering the ultimate question but did not actually do so. His evidence was sufficiently generalised to lead us to conclude that the Detective Inspector did not tell the jury that Mr Kuru must have known of the plan to intimate Mr Ratana and approved of that plan before it was executed.

[68] The Crown Solicitor tested the boundaries by the way he commenced his closing address to the jury. As we have previously noted, however, Ellis J directed the jury on the proper way in which to treat Detective Inspector Scott’s evidence. She did so in a way that counterbalanced the robustness of the prosecutor’s approach.

[69] We have considered Cull J’s discussion of Detective Inspector Scott’s evidence. We understand her position to be that whilst the evidence was admissible under s 25 of the Evidence Act, the use and effect of the evidence was unfairly prejudicial because it accompanied a solely circumstantial case and became a core plank of the Crown case and that, this meant the jury’s verdict was unreasonable.

[70] We respectfully disagree. Unfair prejudice arising from the evidence has already been assessed when it was ruled admissible. In the present case, the trial Judge was clearly alive to the prejudicial effect of the evidence when she made the changes to the evidence and gave directions to the jury about how they could make legitimate use of that evidence. In our view, if the evidence was unfairly prejudicial in its use and effect then it follows that it should have been excluded under s 8 of the Evidence Act.

[71] We agree, however, with the findings of the trial Judge that the evidence was admissible despite some prejudice arising. Once it was found that there was no unfair prejudice sufficient to warrant exclusion under s 8, the evidence is available to the jury (subject to appropriate judicial directions) and they can draw permissible inferences from that evidence to support the Crown’s case. We accordingly do not agree with Cull J that the jury’s reliance on admissible evidence was unreasonable.

Third ground of appeal: Were the jury misdirected on the prerequisites to being guilty as a party to manslaughter?

[72] The third ground of appeal engages s 66(2) of the Crimes Act, which provides:

(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.

[73] In her summing up to the jury and in her oral directions, Ellis J told the jury that, amongst other things, the jury needed to be sure:

Whether Mr Kuru needed to foresee the risk of death to be a party to manslaughter

[75] In Edmonds v R, the Supreme Court found it unnecessary to deliver the final word on the level of knowledge required of a defendant before they could be convicted of being a party to manslaughter pursuant to s 66(2) of the Crimes Act.^[24] However, the Court said that it was arguably unnecessary for the defendant to foresee that death was a probable consequence.

[76] This Court revisited the issue in Burke v R.^[25] The Court considered and rejected a submission that the defendant had to foresee that death was a probable consequence. Instead, the Court said the Crown was required to establish that the defendant knew the common purpose involved “an unlawful act likely to do more than trivial harm to the deceased ... [that was] a probable consequence of the prosecution of the common purpose”.^[26]

[77] We consider the reasoning in Burke to be consistent with the offence of manslaughter. Manslaughter does not require a defendant to foresee that death is a probable consequence. Furthermore, requiring a defendant to foresee that death is a probable consequence to be a party to manslaughter would cause the distinction between manslaughter and reckless murder to become illusory.

[78] The directions given by Ellis J were in accordance with this Court’s analysis in Burke. Ellis J may have set the threshold for guilt higher than necessary by saying that Mr Kuru had to foresee an “unlawful shooting” as opposed to any unlawful act causing more than trivial harm. The Judge’s summing up on this point probably favoured Mr Kuru.

[79] We consider it well-established that “probable consequence” in this context does not require an event to be more probable than not. In Uhrle v R, this Court explained that “probable consequence” meant an event that “could well happen”.^[27] Ellis J’s directions were consistent with the language in Uhrle.

[80] It is not necessary for us to comment on Cull J’s observations concerning the third ground of appeal as we all are satisfied no miscarriage of justice arose through the Ellis J’s directions on the application of s 66(2) of the Crimes Act in this case. We accordingly reject the third ground of appeal.

[82] I am unable to agree with the majority that the jury’s verdict was reasonable. I consider there was insufficient evidence for the jury to have been satisfied to the criminal standard that Mr Kuru was guilty of manslaughter under s 66(2) of the Crimes Act. The lack of probative evidence and the expert evidence from Police Detective Inspector Scott, on whether Mr Kuru likely knew and sanctioned the common purpose, led the jury into impermissible reasoning and an unreasonable verdict resulting in an unsafe conviction.^[28]

[83] I agree, however, with the majority’s conclusion on the admissibility of Detective Inspector Scott’s evidence. It is the use and effect of that evidence which is of concern.

[84] I diverge from the majority view on the mens rea threshold for party liability for manslaughter under s 66(2) on foreseeability of the risk of the charged offence, in this case, an unlawful shooting.

[85] There are three reasons why I consider the required standard of proof beyond reasonable doubt was not met and why the jury could not have been reasonably satisfied of Mr Kuru’s guilt.

[86] First, it was accepted that there was no direct evidence that Mr Kuru knew of or participated in the common purpose or plan. The need for knowledge of the plan was emphasised by the Judge in addressing the common understanding required for party liability for manslaughter. The Judge pointed to the four co-offenders, who had accepted they knew about the plan and the weapons:

[85] ... Those other four have accepted that they had an understanding between themselves that they would go to 144 Puriri Street on 21 August 2018 with a shared intention of damaging Mr Ratana’s property and threatening him, and that one or more of them would be armed with guns.

[87] But there was no direct evidence involving Mr Kuru in that plan. The Judge confirmed that there is no direct evidence that Mr Kuru knew about any of the detail of the plan:

[168] There is of course no direct evidence that Mr Kuru knew about any of this. And ... there is no direct evidence of when he is supposed to have gained this knowledge or authorised a plan, how he conveyed his approval or who he conveyed it to. So your answer will, again, depend on whether you can be sure that he did, as a matter of inference.

[88] In the absence of any direct evidence, text or electronic messaging, previous planning meetings, or other evidence tying Mr Kuru into the plan, the Crown case rested on circumstantial evidence and principally the expert evidence on gangs from Detective Inspector Scott.

[89] Second, the strands of circumstantial evidence, when taken together, lacked probative value to the required standard in my view. Each strand does not have to be proved to the highest standard, but the overall strength of the combined strands together must satisfy the criminal standard.^[29]

[90] In her summing-up, the Judge summarised the five strands of circumstantial “evidence” upon which the Crown relied and upon which the jury could draw inferences:

[169] ... firstly, the accepted evidence that Mr Kuru was the president of Wanganui Black Power at this time;

secondly, the expert evidence of Detective Scott about what being president means in terms of gang activity of this kind;

thirdly, the evidence about what happened at Puriri Street, which the Crown characterises as a planned and coordinated attack against a rival gang, and also the consequences such an attack would likely have for Black Power Wanganui;

fourthly, the evidence that the Crown says shows the “launch” of the Puriri Street mission near Mr Kuru’s home on Matipo Street and the return of some of the men there afterwards; and

fifthly, where Mr Kuru accepts that he was on Tiki Street and then outside his home at around the relevant times.

[91] Critically, when addressing those factual strands (without Detective Inspector Scott’s evidence) the Judge warned the jury that they might think that those established facts alone, even when woven together, would not be enough to make them sure that Mr Kuru knew about the plan beforehand or that he ordered the attack.

[92] It is salutary, in my view, that the Judge was concerned that the “established facts alone” would not be enough to establish that Mr Kuru knew or sanctioned the plan. Even the plan itself was organic. At sentencing, the Judge confirmed her view that the “plan” was hastily formulated on the morning of the shooting:^[30]

... I would not pitch the degree of premeditation involved in this “plan” as high as the Crown did at trial or in submissions. My own view of the matter is that it was hastily formulated on the morning of the shooting. That is consistent with the evidence at trial ... The fact that everything took place in broad daylight on a busy suburban street also does not suggest much of a plan.

[93] I respectfully agree with the Judge’s assessment. The four “factual” circumstantial strands (1, 3-5) of evidence on their own at best create suspicion or a possibility or even a probability that Mr Kuru knew and/or approved the attack. But as juries are regularly directed, suspicion and/or probability is not enough. If the evidence at trial revealed the plan was hastily formulated on the morning of the shooting, there was little or no foundation for the jury to be sure “that Mr Kuru knew about the plan and about all of it” as the Judge directed.^[31] Even “woven” as “strands of a rope”, the “established facts alone” are not enough, as the Judge warned, for a jury to be reasonably satisfied or sure, to the requisite standard, of Mr Kuru’s guilt.^[32]

[94] I depart therefore from the reasons of the majority at [47] as to why they concluded the jury’s verdict was reasonable. The knowledge imputed to Mr Kuru of the activities of the local chapter of Black Power and the previous incident with Mr Ratana may well have likely been known to Mr Kuru but there is no evidence that Mr Kuru was involved in that incident, or that he co-ordinated the previous attack on Mr Ratana; his presence in Tiki Street could not have “knowingly encouraged” the others as there is no evidence he was seen by them; and the others did not assemble outside his house but nearby. The jury would have had to engage in speculative reasoning, with respect, that Mr Kuru “would have been likely to have seen” (emphasis added) the assembly in Matipo Street and “realise that they were planning on heading towards Mr Ratana’s house”; that he “would have also anticipated [they] were carrying weapons” (emphasis added), that “he anticipated trouble” and “was keeping a supervisory eye on the members of his chapter”, as the language itself suggests.

[95] In summary, Mr Kuru was not present at the scene of the shooting; the defendants did not collect outside his house (at 60 Matipo Street) but outside a nearby defendant’s house at 55 Matipo Street; the plan was hastily formulated on the morning of the attack; there was no evidence that he communicated with the other defendants before the event; no evidence that there were arrangements put in place with Mr Kuru’s knowledge of the attack; no evidence that he knew or saw any weapons being taken; and nor was he with the other defendants, who admitted they had a common intention, before they departed for Pūriri Street. The evidence falls well short of proving that Mr Kuru knew of the plan, foresaw that an unlawful shooting was a probable consequence, and sanctioned the plan.

[96] That leads to my third reason for the unreasonable verdict and that is the effect of the expert evidence of Detective Inspector Scott.

[97] The fifth strand of the evidence against Mr Kuru described in the Judge’s summing up, was the expert evidence of Detective Inspector Scott, that “as President [Mr Kuru] would be likely to have known about and would need to have authorised an attack of this kind.”

[98] Detective Inspector Scott was called by the Crown as an expert to give evidence about gangs in New Zealand. His evidence was grouped under headings such as “Patching and the Patch”, “Gang structures”, “the Prospect” and “Violence”. The defence took objection to the part of Detective Inspector Scott’s evidence which described the role of the President of a gang. His initial brief (at [28] above) included the following paragraphs:^[33]

39. The President is the figurehead of the gang or chapter, and is the chairman at meetings.

42. An organised gang crime against another gang would only occur with the sanction of the president.

43. The president’s authorisation would be required due to the obvious risks and consequences that the particular gang would be exposed to...

[99] In a pre-trial ruling, after canvassing the authorities of Thacker v R^[34] and R v Holtham,^[35] the Judge found that Detective Inspector Scott’s evidence “at paragraphs 41-43 (at 42, in particular) goes too far” in that it:^[36]

...would effectively suggest to the jury that [he] was expressing the expert view that:

[100] Ellis J directed that paragraphs 42 and 43 needed to be re-framed by reference to Detective Inspector Scott’s experience, such as “in my experience it is unlikely that ...”.^[37] I consider that, given the appellate authority, the Judge was not in error in admitting the Detective Inspector’s evidence on this basis.

The President is the figurehead of the gang or chapter, and is the chairman at meetings. In some gangs the President can also be known as the ‘Prez or Captain’. He is a senior member who has developed into the recognised leader usually through a combination of personal strength, leadership skills and personality. He has the final authority over all chapter business and its members. In my experience a (serious) organised gang crime against another gang would likely occur with the sanction of the president. This is due to the obvious risks and consequences that the particular gang would be exposed to which would likely include intense scrutiny by the Police and serious retaliation by the opposing gang.

[102] Despite the amendment and the Judge’s caution that the Detective Inspector could go no further than speaking in general terms about his experience and knowledge of a President’s role, the Detective Inspector’s evidence was the key piece of evidence to fill the gap in the Crown’s case against Mr Kuru. The Detective Inspector’s evidence on gangs and gang leaders in general became the focus of the Crown’s case.

[103] In his closing address, Mr Wilkinson-Smith for the Crown commenced by inviting the jury to look at the sequence of events through the lens of Detective Inspector Scott on gangs:

[104] The phrases used by the prosecutor to describe Mr Kuru’s role in this plan —something at the front of his mind, being on a war footing, his decision being likened to a declaration of war with high stakes — were not only colourful but in the absence of any evidence that Mr Kuru knew about the plan, invited the jury to engage in war-like speculation about his role:

It’s something the President would have at the front of his mind and the decision to move against the opposing gang is one that has extremely high consequences for the whole gang. It’s like a declaration of war, members of the jury, and the chain of violence that would trigger not to mention the risk to their own gang members and what it might mean for them. And that, in the Crown submission to you, is exactly what the stakes were here. [Mr] Kuru as President of this chapter with Mr Ratana living in their midst is effectively on a war footing.

[105] This had to be addressed by the Judge in her direction. In dealing with the Crown and the defence addresses, the Judge reminded the jury that “Detective Scott’s evidence was that as president [Mr Kuru] would be likely to have known about and would need to have authorised an attack of this kind.” The Judge then summarised the prosecution’s contention of what kind of attack this was:

[172] ... [He] described it as a premeditated, organised, co-ordinated attack on a rival gang, the Mongrel Mob, the arch enemy of Black Power. He said that from a Black Power perspective Mr Ratana had committed some cardinal sins—sins that the president would know about and would want to stomp on: living in Castlecliff, going around with a gun, wearing a patch and humiliating his members. If you accept that analysis then it is perhaps easier to draw that inference inherent in Detective Scott’s evidence—the proposition that Mr Kuru must have been involved.

[106] In my view, the evidence given by Detective Inspector Scott and the way in which the Crown used it led the jury into impermissible deductive reasoning, namely: Presidents of gangs know about and sanction rival gang attacks; this was a rival gang attack by Black Power on the Mongrel Mob; Mr Kuru is a gang President; and therefore, he must have known and sanctioned this rival gang attack.

[107] With the combined circumstantial strands not being enough to convict Mr Kuru of manslaughter as a party, Detective Inspector Scott’s expert evidence that the President would likely have known and sanctioned a rival gang attack assumed critical importance. It provided a basis for the proposition that Mr Kuru must have been involved in the shooting, which the jury were invited to accept.

[108] This is not to say that evidence from police or Corrections officers on the use of language and gang hierarchy should not be admissible to provide substantial help to the jury. However, here the use of the Detective’s evidence as the key plank of the Crown’s case, amounted to a proposition that Mr Kuru must have been involved, based on likelihood. This contrasts markedly from cases such as Poutai v R,^[38] where evidence of gang membership and status within the gang was “plainly relevant”^[39] and supported the other direct and circumstantial evidence.

[109] In Poutai, Mr Poutai was convicted of inciting, counselling or procuring an assault on a prison inmate, in a co-ordinated attack under s 66(1) of the Crimes Act. The Crown’s case was that while he did not physically participate in the beating, (being in his cell at the relevant time) he orchestrated it. The evidence of Mr Poutai’s senior gang membership was admitted to explain why the principal attackers (junior gang members) were accustomed or prepared to act in accordance with Mr Poutai’s directions. Thus, the evidence was material to the motives of others participating in the beating and Mr Poutai’s modus operandi for exacting retribution.

[110] However, in Poutai this Court noted that the Crown’s case was both circumstantial and direct.^[40] An eyewitness called by the Crown, saw and heard Mr Poutai throughout the attack period. Further, evidence was given that meetings were held on the morning of and the day prior to the beating, where Mr Poutai organised the other prisoners to act at his direction. He was heard to inquire whether the attackers had caused the victim harm, observing that the victim deserved to die. The gang evidence, led from two prison officers, painted a picture of the offending in conjunction with, and as explanatory of, the other direct evidence.

[111] In the absence of sufficient evidence against Mr Kuru, the risk of unfair prejudice associated with Detective Inspector Scott’s evidence is significant. The authors of Phipson on Evidence describe “reasoning prejudice”, a process by which the jury may give evidence more probative weight than is warranted. An element of such reasoning prejudice is described as “moral” or “bad person” prejudice:^[41]

Put simply, the jury may be tempted to convict because someone like the accused should not be out on the street.

[112] The same risk was recognised by the Supreme Court in Mahomed v R, albeit in relation to specific propensity evidence:^[42]

... As noted, the cogency of [propensity] evidence usually turns on ideas about coincidence and probabilities but the associated principles of probability theory are likely to be unfamiliar to most jurors. There may also be a risk that the jury may seek to reason directly from a conclusion that the defendant is of bad character to a finding of guilt. This risk will be enhanced if the true and legitimate relevance of the evidence is either not obvious or not explained to the jury.

[113] Where, as in the present case, the evidence of gang membership is the paramount plank of the Crown’s case in the absence of evidence to the criminal standard, the risks of impermissible reasoning and “bad person” prejudice are significantly higher. The jury had to be sure that “Mr Kuru knew about the plan and about all of it” including “the plan to take guns along.” Not only was there an absence of evidence to that effect, but the Privy Council warning in Pora v R is applicable: there are dangers inherent in an expert expressing an opinion “as an unalterable truth” where “the opinion is on a matter which is central to the decision to be taken by a jury.”^[43]

[114] Standing back and applying the principles articulated by the Supreme Court in Owen v R,^[44] set out at [43] above, there is no question of weight to be given to any particular piece of evidence and nor is there an assessment of the credibility of witnesses engaged here.

[115] Having regard to all the evidence, I consider the jury could not have reasonably been satisfied to the required standard that Mr Kuru was guilty. For these reasons, I find the jury verdict was unreasonable and the conviction is unsafe.

Third ground of appeal: Were the jury misdirected on the prerequisites to being guilty as a party to manslaughter?

[116] Finally, I diverge from the majority’s support for the lower threshold test for party liability under s 66(2) for manslaughter, enunciated in Burke v R.^[45] Although I agree that the Judge did not misdirect the jury on foreseeability, I disagree with the majority view that the trial Judge here “may have set the threshold for guilt higher than necessary by saying that Mr Kuru had to foresee an ‘unlawful shooting’ as opposed to any unlawful act causing more than trivial harm.”

[117] In favouring the lower threshold direction in Burke, the majority here have referred to Edmonds v R,^[46] stating that the Supreme Court found it unnecessary to deliver the final word on the level of knowledge required before a defendant could be convicted of being a party to manslaughter under s 66(2) of the Crimes Act. There are two responses to that I wish to make.

[118] First, the trial Judge in Edmonds had directed the jury that the appellant could be found guilty of manslaughter only if the jury were satisfied that he appreciated that the killing of somebody was a probable consequence of the prosecution of the common purpose. The Court noted that this was arguably unnecessary but left it to another day to resolve the issue and addressed the appeal on the assumption that the trial Judge was correct. However, the Court noted at [47]:

The approach of New Zealand Courts to common purpose liability must be firmly based on the wording of s 66(2). That section recognises only one relevant level of risk, which is the probability of the offence in issue being committed. If the level of risk recognised by the secondary party is at that standard, it cannot matter that the actual level of risk was greater than was recognised.

[119] The facts of Edmonds cannot be overlooked. The appellant had armed himself with a firearm and knew that one of his associates had a baseball bat. In that context, it did not matter that he did not necessarily know that his co-offender was armed with a knife and the Supreme Court rejected his argument that the trial Judge should have directed the jury that it could only find him guilty if he had known that the principal offender was armed with a knife. The Court held that s 66(2) requires one level of risk, which is the probability of the offence in issue being committed. It cannot matter that the actual level of risk was greater than was recognised.

[120] Although accepting that there was no standalone legal requirement that a party’s knowledge must extend to whether the group were armed and if so, with what weapons, the Supreme Court in Edmonds accepted there were circumstances in which a knowledge of the weapon-direction may be required as part of the Judge’s discussion of the evidence in particular in relation to:^[47]

[121] Second, four years later the Supreme Court in Ahsin v R revisited the broad question of the elements for party liability and the level of knowledge required of the common purpose under s 66(2).^[48] The Court held that the Crown must prove beyond reasonable doubt that:^[49]

[122] In Ahsin, the trial Judge was criticised for failing to refer to and explain the need for knowledge that the offence was a probable consequence. On the basis of the Supreme Court authorities, I consider that Ellis J was correct in her direction that Mr Kuru had to foresee an “unlawful shooting”. The lower threshold, as the majority found in Burke, that foreseeability is confined to any unlawful act causing more than trivial harm, sets too low a threshold for criminal liability as a party for unlawful killing.

Solicitors:
Crowley Waugh, Whanganui for Appellant
Crown Law Office, Wellington for Respondent

[166] ... first to be sure that Mr Kuru knew about the plan and about all of it – the plan to go to Puriri Street, the plan to threaten Mr Ratana, the plan to damage his property and the plan to take guns along. You will need to be sure that he participated or helped prosecute the plan by doing that – by authorising it or sanctioning it or ordering it.

^[41] Hodge M Malek (ed) Phipson on Evidence (20th ed, Sweet & Maxwell, London, 2022) at 601–602. See also 562–563.

Court of Appeal of New Zealand

Kuru v R [2023] NZCA 150 (5 May 2023)