Jury v R [2024] NZCA 320 (16 July 2024)

Last Updated: 22 July 2024

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

CA342/2021 [2024] NZCA 320

	BETWEEN	RAYMOND IVEAGH JURY Appellant
	AND	THE KING Respondent

Hearing:	16 April 2024
Court:	Cooke, Collins and Osborne JJ
Counsel:	C W J Stevenson and S J Parry for Appellant Z R Johnston and Z R Hamill for Respondent
Judgment:	16 July 2024 at 10.30 am

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is allowed. The minimum period of imprisonment of 17 years is set aside and a minimum period of imprisonment of 14 years is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

• [1] Mr Jury appeals his conviction for having murdered Mr Rikihana on 30 January 2019. He also appeals the minimum period of imprisonment (MPI) of 17 years which he must serve before he is eligible to apply for parole.
• [2] At the hearing of the appeal, three grounds were advanced against conviction:

(a) The High Court erred when it allowed the Crown to adduce hearsay statements from the late Rex Maney in which he said that Mr Jury was responsible for the murder of Mr Rikihana.

(b) Mr Jury’s trial counsel erred when he did not call Jason Maney as a witness. Jason Maney had previously told an investigator that when he was dying, Rex Maney told him that he, Rex Maney, was responsible for Mr Rikihana’s death.

(c) The trial Judge should have cautioned the jury about the use that they could make of Rex Maney’s hearsay statement.

• [3] Following the appeal, a fourth ground of appeal against conviction was pursued. The ground alleged Mr Jury’s trial counsel erred by not adducing evidence of Rex Maney’s 2009 conviction for perverting the course of justice.
• [4] The appeal against sentence is based on the contention that the High Court erred when it concluded Mr Rikihana’s murder engaged s 104 of the Sentencing Act 2002. Three questions are raised by the appeal against sentence:

(a) Was Mr Rikihana’s murder “committed with a high level of brutality, cruelty, depravity, or callousness”?^[1]

(b) Was Mr Rikihana “particularly vulnerable because of his ... age, health, or because of any other factor”?^[2]

(c) If s 104 of the Sentencing Act applied, was it manifestly unjust to impose an MPI of 17 years?^[3]

• [5] Pursuant to s 232 of the Criminal Procedure Act 2011, we must allow the appeal against conviction if we are satisfied that a miscarriage of justice has occurred.^[4] A miscarriage of justice includes an error that has affected the trial in circumstances where there is real risk that the outcome of the trial was affected.^[5]

The murder of Mr Rikihana

• [6] At the time of his death, Mr Rikihana was 69 years old. He was a slight man who was 168 cm tall but weighed just 49 kg. Mr Rikihana, Mr Jury and Rex Maney were all long-term members of the Mongrel Mob.
• [7] Mr Rikihana lived at a semi-rural address on the outskirts of Rotorua in Te Ngae Road with his niece, Ms Eketone, and her 7-year-old son. Ms Eketone’s evidence was central to the Crown’s case.
• [8] Ms Eketone’s evidence, supplemented by CCTV footage of the movements of Mr Jury’s car on the night in question, may be distilled to the following points:

(a) Mr Rikihana slept in a “bach” at the rear of the home.

(b) Mr Rikihana and Mr Jury had known each other for about 40 years.

(c) Just after midnight on 30 January 2019, Mr Jury arrived at Ms Eketone’s home and went to Mr Rikihana’s bach. (As we shall explain later, unbeknown to Ms Eketone at the time, this was the second occasion that evening that Mr Jury had driven to Ms Eketone’s home. He had previously driven to the property a little after 11.00 pm and left the property after about 8 minutes. No-one at Ms Eketone’s property saw Mr Jury during this first visit.)

(d) When he arrived on the second occasion, Mr Jury went to Mr Rikihana’s bach and then the two men went into the kitchen and had a meal. Ms Eketone left the kitchen and later heard an argument break out between Mr Jury and Mr Rikihana. Their dispute was about money that Mr Jury claimed was owed to him by Mr Rikihana.

(e) According to Ms Eketone, the argument escalated. She heard the men fighting outside in an area in front of the bach.

(f) Ms Eketone grabbed her son from his bed and they hid together in the house.

(g) Ms Eketone heard Mr Jury moving to his vehicle that was parked in the driveway at the front of the property. Although she did not see the assault on Mr Rikihana, Ms Eketone heard it and in particular heard Mr Rikihana pleading for the attacker to stop.

(h) Mr Jury entered the property, apparently in an effort to find Ms Eketone. When he failed to do so he drove away with Mr Rikihana lying in the back seat. (CCTV footage showed Mr Jury left the property at 1.32 am and drove to the vicinity of Te Ngae Road which was where Rex Maney lived with his partner.)

(i) After Mr Jury left the property, Ms Eketone packed a bag ready to flee the house should Mr Jury return. He did so at about 2.54 am. When she heard Mr Jury’s vehicle coming up the long driveway to her home, Ms Eketone and her son ran across farmland and hid at a neighbour’s property.

• [9] When cross-examined by Mr Nabney, Mr Jury’s trial counsel, Ms Eketone firmly rejected the proposition that Rex Maney was present at her home and that it was he who had attacked Mr Rikihana.
• [10] Mr Te Aonui, who is also a member of the Mongrel Mob, lived at 6 Reeve Road in Rotorua. He was woken at about 2.45 am by Mr Jury arriving at his property. When he opened the door to see what was happening, he saw a person lying on his driveway. When he approached the prone body, Mr Te Aonui realised it was his friend Mr Rikihana who was badly injured and unresponsive. Mr Te Aonui placed Mr Rikihana in his car and drove to Rotorua hospital. He arrived at the hospital at 3.18 am. Medical staff tried to resuscitate Mr Rikihana but to no avail. He was declared dead at 3.35 am.
• [11] After leaving Rex Maney’s address at around 3.25 am, Mr Jury drove through Rotorua to Taupo and from there to Napier. He went to Napier hospital at 7.23 am and told medical staff that he had been hit in the head with a hammer in Rotorua at about 2 am.
• [12] On 30 January 2019, Mr Te Aonui sent a text to Rex Maney saying Mr Rikihana was dead. Rex Maney then sent a text to Mr Jury saying Mr Rikihana had died.
• [13] On 31 January 2019, Mr Jury’s car was located on a rural road near Napier. It had been destroyed by fire.
• [14] Mr Iorangi also witnessed some of the events that occurred at Te Ngae Road. He went there in the early hours of the morning to drop off a lawnmower. When he got part way down the driveway he saw a man without a shirt, standing next to a vehicle and that someone else was lying in the back seat of that vehicle with their feet sticking out of the passenger door. On seeing this Mr Iorangi quickly drove away.
• [15] Rex Maney died from cancer on 10 July 2019. He spoke to the police on two occasions prior to his death. When he was first spoken to by police on 8 February 2019, he denied knowing anything about the death of Mr Rikihana.
• [16] One week later, police executed a search warrant at Rex Maney’s address. They found a letter that appeared to have been written on 30 January 2019 by Rex Maney to his son, “Styles” Maney, who was in prison at the time. In that letter, Rex Maney said that Mr Jury had shown up at Rex Maney’s home with Mr Rikihana tied down in the back of his car. He said Mr Rikihana had hit Mr Jury in the face with a hammer and that Mr Jury was giving Mr Rikihana “heaps of kickings” while at Rex Maney’s house. Mr Jury left with Mr Rikihana tied down in the back of his vehicle.
• [17] The police also found 7.5 grams of crystalline powder and a quantity of ammunition during the search of Rex Maney’s address. No charges were laid in connection with those items.
• [18] Police interviewed Rex Maney again on 18 February 2019. On this occasion, he signed a statement in which he said Mr Jury had come to his home twice on the night of 29 January 2019/in the early hours of 30 January 2019 and that on the second occasion Mr Jury had Mr Rikihana in the back of his car. According to Rex Maney, Mr Jury asked for some rope, which Rex Maney gave to him. Mr Jury then returned to his car and Rex Maney told police he could hear yelling and the sound of someone being kicked.
• [19] On 31 January 2019, Dr Tse, a forensic pathologist, conducted a post-mortem on Mr Rikihana’s body. The injuries observed during the post-mortem comprised bruises and lacerations over most of his body. There were 79 identifiable injuries.

(a) The injuries to Mr Rikihana’s head included a significant laceration to the top of his head consistent with a blow being struck with a blunt instrument. This caused a haemorrhage to Mr Rikihana’s brain which by itself would have been fatal. Mr Rikihana survived for a further 35 minutes after receiving the fatal brain injuries. Mr Rikihana also had fractures to his nose and jaw. He had multiple bruises and lacerations to his face.

(b) Mr Rikihana suffered significant neck injuries including a fractured hyoid bone and bruises and abrasions consistent with something being placed around his neck and tightened.

(c) Other injuries included fractured ribs, bruises and abrasions to Mr Rikihana’s limbs, and marks around his wrists consistent with his hands having been tied together.

• [20] Environmental Science and Research (ESR) scientists found blood and a fingerprint on a light switch inside Te Ngae Road. DNA from the blood matched that of Mr Jury. The fingerprint also came from Mr Jury. Mr Jury’s blood was also found on the front of the shirt worn by Mr Rikihana when he was taken to Rotorua hospital.
• [21] ESR scientists also examined a hammer and towel located on the back lawn of Te Ngae Road. Mr Rikihana’s blood was detected on the handle of the hammer, and the towel. It was part of the Crown’s case that the towel was wrapped around Mr Rikihana’s neck and used to garrotte Mr Rikihana and that the hammer was used to inflict most of the injuries suffered by him.
• [22] Police and scientists also examined a trail of blood that was consistent with Mr Rikihana’s body having been dragged from the back yard to the driveway at the front of the property.
• [23] As we have noted when discussing Ms Eketone’s evidence, police were able to reconstruct the movements of Mr Jury’s car at relevant times through a series of CCTV cameras and an automatic number plate recognition camera. The essence of that evidence was that Mr Jury’s vehicle went down the driveway to Te Ngae Road on three occasions:

(a) at 11.01 pm on 29 January 2019 and exited the driveway at 11.09 pm;

(b) at 12.01 am on 30 January 2019 and exited at 1.33 am; and

(c) at 2.54 am on 30 January 2019 and exited at 2.59 am.

• [24] After the second visit to Te Ngae Road, the vehicle was driven in the direction of Rex Maney’s property at 1.33 am and was photographed being driven back in the opposite direction at 2.24 am. Mr Jury’s vehicle was later photographed being driven in the direction of Rex Maney’s property on a further occasion at 2.59 am and then back in the opposite direction at 3.26 am.

Mr Jury’s defence

• [25] Mr Jury gave evidence. He told the jury that he drove to Rotorua on the night Mr Rikihana died and first went to visit Rex Maney. He said he stayed at Rex Maney’s place for about half an hour before going to Mr Rikihana’s house to collect him and bring him back to Rex Maney’s house at Rex Maney’s request.
• [26] Mr Jury said on the first occasion he went to Te Ngae Road, he could not locate anyone so he left the property to visit Mr Te Aonui in Reeves Road. Mr Te Aonui was not at home. Mr Jury said he remained at that property socialising with members of the Mongrel Mob who lived next door.
• [27] Mr Jury said he then went back to Te Ngae Road where he saw Ms Eketone and Mr Rikihana. He said they smoked methamphetamine and marijuana and had a meal and that the three of them were sitting at the kitchen table when Rex Maney showed up. According to Mr Jury, Rex Maney was upset and asked Mr Rikihana for money. Mr Jury said that Rex Maney and Mr Rikihana started yelling at each other.
• [28] Mr Jury claimed that he told Rex Maney and Mr Rikihana to go outside to sort out their differences. They did so. Mr Jury said that when he went outside, he was struck on the head with a hammer which rendered him unconscious. In his evidence, Mr Jury said he woke up lying on the grass to the sound of Mr Rikihana and Rex Maney fighting. Mr Jury said he tried to intervene but was hit again.
• [29] Mr Jury told the jury he carried Mr Rikihana to his (Mr Jury’s) car and placed him in the back seat with the assistance of Rex Maney. He said that a white truck drove up the driveway when this was happening.
• [30] Mr Jury said that Mr Rikihana asked Mr Jury to get his gang patch and that Mr Jury went into the home and turned on a light. On finding Mr Rikihana’s patch Mr Jury returned to the car.
• [31] Mr Jury said that he drove Rex Maney and Mr Rikihana to Rex Maney’s property at Te Ngae Road. When they arrived at that property, Mr Jury went to the wash house to check his eye which had been injured by the blow he suffered at the outset of the dispute. When he returned, Mr Rikihana and Rex Maney were again arguing. Mr Jury lifted Mr Rikihana out of the car and put him on the back steps of Rex Maney’s house.
• [32] Mr Jury told Rex Maney to get out of his car. Mr Jury then left the premises to clear his head. He noticed that he had lost his “travel pack” which contained drugs so went back to Te Ngae Road to look for it. He was unable to find his “travel pack” and thereafter drove south to Napier.

First ground of appeal against conviction: the admission of Rex Maney’s hearsay statements

• [33] As we have noted at [15], Rex Maney died from cancer five and a half months after Mr Rikihana was murdered. He spent some of the time before his death living in the bach at Te Ngae Road. He and Ms Eketone were friends. She had known him for close to 40 years.
• [34] When interviewed by police on 8 February 2019, Rex Maney said:

(a) He knew Mr Jury. They had both been members of the Mongrel Mob for about 40 years.

(b) He had not seen Mr Jury for several weeks. He did not know how often Mr Jury would visit him as he said he had become forgetful after a car crash about five years earlier.

(c) He knew Mr Rikihana but did not know anything about his death and didn’t want to know anything about it.

• [35] The letter which the police found when searching Rex Maney’s property was found on the kitchen table. It was dated 30 January 2019 and addressed to “Styles” Maney. The letter stated:

(a) Mr Jury turned up at Rex Maney’s address with Mr Rikihana tied down in the back seat of Mr Jury’s vehicle;

(b) Mr Jury said to Rex Maney that Mr Rikihana had hit Mr Jury in the face with a hammer;

(c) Mr Jury asked Rex Maney what he should do with Mr Rikihana;

(d) Rex Maney said he told Mr Jury he had enough problems and did not want anything to do with what was going on;

(e) Rex Maney said he could hear Mr Rikihana yelling and Mr Jury giving him more kicks; and

(f) Mr Jury left with Mr Rikihana tied down in the back of his car to go to Mr Te Aonui’s place.

• [36] In his second interview with the police on 18 February 2019, Rex Maney said:

(a) Mr Jury first arrived at Rex Maney’s house earlier in the evening and stayed for about half an hour. Mr Jury told him Mr Rikihana had attacked Mr Jury with a hammer and that he was going to go back and get him.

(b) Mr Jury arrived back at Rex Maney’s place with Mr Rikihana and asked for some rope. Rex Maney told Mr Jury he could find some rope in the wash house.

(c) Rex Maney could hear someone yelling from Mr Jury’s car and he concluded that it must have been Mr Rikihana.

(d) Mr Jury did not tell Rex Maney why he was taking Mr Rikihana to Mr Te Aonui’s place.

• [37] The Crown’s application to adduce the statements of Rex Maney as hearsay evidence was granted by Powell J on 9 April 2020.^[6] The appellant submits that hearsay evidence was wrongfully admitted.
• [38] The starting point when considering the admissibility of a hearsay statement is s 17 of the Evidence Act 2006. That section provides that hearsay statements are not admissible unless provided otherwise in the Evidence Act.
• [39] Section 18(1) of the Evidence Act states:

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) either—

(i) the maker of the statement is unavailable as a witness; or

(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

• [40] The sole issue before Powell J was whether the circumstances relating to the statement provided reasonable assurance that Rex Maney’s letter to his son and his second statement to the police were reliable.^[7]
• [41] Powell J recorded his concerns about:

(a) the inconsistencies between Rex Maney’s three statements;^[8]

(b) the fact that even though he knew his interview statements could be used in court and that it was an offence to provide false or misleading evidence, Rex Maney had produced two fundamentally inconsistent accounts;^[9] and

(c) the lack of explanation for Rex Maney writing to his son in the middle of the night, but not posting the letter.

• [42] Notwithstanding these concerns, Powell J was satisfied that “many of the key matters detailed by [Rex] Maney in both the letter and the [second] interview [were] substantially corroborated in the formal statements of other witnesses.”^[10]
• [43] In this Court, Mr Stevenson, senior counsel for Mr Jury, submitted it is now clear there could be no reasonable assurance that Rex Maney’s letter and interviews with the police were reliable. The arguments in support of this submission can be distilled in the following way.

Inconsistent statements

• [44] Mr Stevenson submitted that the inconsistencies between Rex Maney’s letter and his statements were more pronounced than Powell J appreciated:

(a) In his letter, Rex Maney said Mr Jury took Mr Rikihana to the home of Mr Te Aonui. In his second police interview however Rex Maney denied that Mr Jury told him where he was taking Mr Rikihana.

(b) In his second police interview, Rex Maney said he finished writing his letter after Mr Jury left. However, later in that same interview, he said he went back to bed when Mr Jury left his property.

(c) The letter suggested Mr Jury went to Rex Maney’s place on just one occasion. In his second interview, Rex Maney said Mr Jury visited his property twice on the night in question.

(d) Rex Maney said in his letter that when Mr Jury arrived at his home Mr Rikihana was tied down in the back of Mr Jury’s car. In his second police interview however Rex Maney said Mr Jury asked for a rope, which, in the words of Mr Stevenson, was to be used “presumably to tie up Mr Rikihana”.

Letter and second interview were inherently implausible

• [45] Mr Stevenson submitted it was highly implausible:

(a) that Rex Maney would be writing to his son in the early hours of the morning;

(b) that Rex Maney would resume writing the letter after Mr Jury had left with Mr Rikihana in a seriously injured state;

(c) that such a letter would be written, and then added to at later times, using different coloured pens;

(d) that Rex Maney would include information about a serious crime in a letter to a prisoner knowing the letter would be scrutinised by a Corrections Officer;

(e) that the letter remained in Rex Maney’s home for two weeks without being posted;

(f) that the contents of the letter and interview were accurate given the claims that Mr Jury showed up with Mr Rikihana in a serious state only to drive off and drop him at Mr Te Aonui’s property; and

(g) that Mr Jury was hit in the head by Mr Rikihana only for him to drive to Rex Maney’s place and then drive back to Mr Rikihana’s house, assault him and then go back to Rex Maney’s place and ask for rope.

Inconsistencies with CCTV camera evidence

• [46] It was submitted there were three possible times that Mr Jury could have gone to Rex Maney’s home:

(a) prior to 10:58 pm;

(b) between 1.33 am and 2.24 am; and

(c) between 2.59 am and 3.26 am.

• [47] Mr Stevenson said the third opportunity can be confidently excluded given Mr Rikihana was dropped at the hospital at 3.18 am and that therefore Mr Jury must have been struck in the head by Mr Rikihana before 10.58 pm. Mr Stevenson submitted “[t]he account in [Rex] Maney’s police statement simply cannot be reconciled with the CCTV evidence advanced by the Crown.” This point was not considered by Powell J.

Inconsistencies with Ms Eketone’s evidence

• [48] Mr Stevenson submitted Rex Maney’s second statement to the police conflicted with aspects of Ms Eketone’s evidence. It was said:

(a) Ms Eketone could only remember a single visit by Mr Jury to her property; and

(b) Ms Eketone’s account of Mr Jury’s visit was not consistent with him having earlier being struck in the head with a hammer by Mr Rikihana.

Inducement

• [49] Mr Stevenson argued that Rex Maney obtained a subtle inducement to implicate Mr Jury after the police found ammunition and a crystalline substance in his house. It was submitted “this crucial dynamic underlying the ‘circumstances’ in which [Rex] Maney gave his [second] police interview was not raised with or considered by Powell J”.

Rex Maney’s conviction for perverting the course of justice

• [50] Rex Maney was convicted in 2009 for perverting the course of justice. Mr Stevenson submitted that the fact a hearsay statement was made by “[a] suspect, who has been convicted for intentionally perverting the course of justice must, of necessity, seriously impact reliability.”

Jason Maney

• [51] On 16 June 2020, Jason Maney, Rex Maney’s whāngai son, made a statement to Mr Tinsley, a private investigator. That statement was made after Powell J had delivered his ruling allowing the Crown to adduce Rex Maney’s hearsay statements. In his statement, Jason Maney said:

(a) Rex Maney told him he was responsible for Mr Rikihana’s death; and

(b) Rex Maney had a propensity for dishonesty.

• [52] Mr Stevenson submitted Jason Maney’s statement reinforced the unreliability of Rex Maney’s hearsay statements.

Consistencies with Mr Jury’s evidence

• [53] Mr Stevenson noted that Powell J’s assessment of the hearsay statements as being sufficiently reliable was based primarily on its consistency with other evidence. Mr Stevenson submitted that those identified consistencies however were consistent with Mr Jury’s evidence and with “[Rex] Maney fabricating an exculpatory story based on details known to him from his involvement in the events in question”.

Crown’s submissions

• [54] In their detailed submissions, Ms Hamill and Ms Johnston submitted:

The central issue for the Court on this ground of appeal is whether the admission of [Rex] Maney’s Police statements and letter caused a miscarriage of justice (and not simply whether Powell J’s reasoning was correct). ... [Rex] Maney’s statements about what he saw and heard that night were sufficiently reliable to be admitted under s 18. The inability to cross-examine him did not result in any unfair prejudice, as the key factors concerning his reliability were well-ventilated at trial, both in closing submission and through cross-examination of other witnesses (such as the Police who searched his address).

Analysis

• [55] The assessment as to whether or not the circumstances relating to the hearsay statements provide reasonable assurance that the statements are reliable is not to be conflated with the role of the jury or the fact-finder in assessing at trial the credibility and reliability of the hearsay evidence.^[11]
• [56] The same observations are recorded in Mahoney on Evidence: Act and Analysis:^[12]

The reference to “reasonable assurance” of reliability means that the evidence is reliable enough for the fact-finder to consider it and draw conclusions as to weight – sometimes referred to as “threshold reliability” as opposed to “ultimate reliability”. ...

• [57] We agree with Powell J that there are significant inconsistencies between Rex Maney’s first statement to the police and his letter to “Styles” Maney and his second statement to the police. Powell J also recognised there were inconsistencies between Rex Maney’s letter and his second statement to the police.^[13]
• [58] We are also satisfied that much of what Rex Maney said in his letter and in his second statement to the police were consistent with the statements of other witnesses. In particular:

(a) the evidence of Ms Eketone, which we have summarised above at [7], [8(c)–(e)] and [8(g)–(h)];

(b) the pathology evidence we have summarised at [19]; and

(c) the forensic evidence we have summarised at [20]–[22].

• [59] We do not agree with Mr Stevenson’s analysis that the evidence obtained from CCTV cameras was totally inconsistent with Rex Maney’s letter and second statement to the police. On the contrary, the evidence on the CCTV footage is consistent with Mr Jury having driven to Rex Maney’s home at about 1.33 am, with Mr Rikihana in the back seat of his vehicle after Mr Rikihana had hit Mr Jury with a hammer and after Mr Jury had severely beaten Mr Rikihana and tightened a towel around his neck.
• [60] The CCTV footage is also consistent with Mr Jury driving back to Rex Maney’s home, after having dropped Mr Rikihana’s body in the driveway of Mr Te Aonui’s property.
• [61] Nor do we accept that Rex Maney’s letter and his second statement to the police conflicted with Ms Eketone’s evidence. As we have explained, she was not aware of Mr Jury’s first visit to her home late on the night of 29 January 2019. She was certainly very aware of his second visit between 12.01 am and 1.33 am and of his third visit just before 3 am, which caused her and her son to flee to a neighbouring property.
• [62] We also reject the contention that the police induced Rex Maney into implicating Mr Jury. There was no evidence of any explicit inducement. On the contrary, Detective Senior Sergeant van Kempen explained in an affidavit that the police simply elected not to investigate the ammunition/possible drug offending in the context of what was a serious homicide inquiry. The Detective Senior Sergeant explained this decision was driven by resource issues and public interest considerations. That evidence has not been challenged.
• [63] Nor is there any basis for accepting that there may have been subtle implicit inducements of the kind referred to by the Supreme Court in W v R.^[14] As mentioned, the decision not to charge Rex Maney in relation to the ammunition/possible drug offending has been fully explained by the police whose evidence has not been seriously challenged. Absent any credible evidence of inducement, this aspect of the appeal fails to gain traction.
• [64] We do agree with Mr Stevenson when he argued that Rex Maney’s conviction for perverting the course of justice was a factor that weighed against the reliability of his statement. Powell J made reference to Rex Maney’s history of criminal convictions but was satisfied they did not impact upon the reliability of the statements in issue.^[15] While we are inclined to place more weight on Rex Maney’s criminal convictions as a factor that weighs against the reliability of his statements, we are not satisfied that by itself, this concern tips the scales against admitting Rex Maney’s statements. We have reached this conclusion because of the general consistencies between Rex Maney’s letter and second police statement and the balance of the evidence which we have summarised and which we will return to at [99].
• [65] As we will explain when discussing the second ground of appeal against conviction, there are real issues about Jason Maney’s statement to Mr Tinsley, the private investigator. Jason Maney was not called to give evidence at trial because had he done so, he may well have implicated Mr Jury in the murder of Mr Rikihana and said that he was pressured in prison to make the statement he made to Mr Tinsley. Thus, Jason Maney’s statement to the investigator has to be balanced against his subsequent comments which significantly undermine the reliability of his statement to Mr Tinsley.
• [66] On our assessment, whilst aspects of Rex Maney’s statements were inconsistent, those inconsistencies were not sufficient to render the statements inadmissible.
• [67] When we assess all of the circumstances relating to the statements made by Rex Maney, and in particular the evidence of other witnesses, the forensic evidence and the evidence from the pathologist, we are satisfied that the circumstances provide reasonable assurance that the statements were reliable. That is to say, the threshold for admissibility under s 18 of the Evidence Act was satisfied and it was for the jury to decide what aspects of Rex Maney’s statements they accepted and what aspects they found unreliable and/or lacked credibility.
• [68] We are also satisfied no miscarriage of justice arose through the admission of Rex Maney’s statements because of the comprehensive way Mr Nabney explained the inconsistencies between the statements in his closing address:

(a) Mr Nabney said to the jury that they might think if the letter was truly intended for “Styles” Maney, it would have been posted by Rex Maney, “rather than conveniently sitting on his table for the police to then read”.

(b) Mr Nabney pointed out that in his letter, Rex Maney said Mr Jury turned up with Mr Rikihana in his car but when he spoke to the police he said Mr Jury went back to get Mr Rikihana.

(c) Mr Nabney pointed out the inconsistency in Rex Maney saying that Mr Jury showed up with Mr Rikihana tied down in the back of the car but also asked Rex Maney for rope.

(d) It was also submitted to the jury that in his letter, Rex Maney said Mr Jury left to take Mr Rikihana to Mr Te Aonui’s place, but in his second statement to the police he acknowledged Mr Jury did not tell him where he was taking Mr Rikihana.

(e) Mr Nabney said to the jury that Rex Maney’s statements were “self-serving” and intended to “throw the scent off” himself.

Second ground of appeal against conviction: the decision not to call Jason Maney as a defence witness

• [69] Jason Maney was interviewed at Waikeria Prison on 16 June 2020 by Mr Tinsley. The interview was recorded and a 53-page transcript of the interview was later prepared by Mr Tinsley’s office.
• [70] During the interview, Jason Maney explained to Mr Tinsley that he was given compassionate leave from prison in March 2019 to visit Rex Maney when he was dying from cancer. Jason Maney is recorded as having told Mr Tinsley that Rex Maney confessed to being responsible for the murder of Mr Rikihana.
• [71] The transcript of the interview records Jason Maney saying:

... I recall [Rex Maney] you know very clearly talking about how you know he was the one that you know that done it, done this crime you know and I was a little bit shocked in what he was telling me because you know the way how, how he was explaining to me it was like he was boasting you know. Boasting about it and I was like oh okay you know to try and tell me he told me that – well I don’t know if its true – all I know is what he’s telling me – but he told me that he was the one that killed [Mr Rikihana] and he said that something around like he wanted to skin him or something or he did skin him something around that. Cause I was in jail at the time when all this was happening but this is what [Rex Maney] was saying you know and I remember him saying to me you know it was better, he was better off in the grave, you know than alive and all you know all that sort of talk. Yeah. But I do recall very clearly him telling me that it was him that killed [Mr Rikihana], yeah.

• [72] When Mr Tinsley questioned Jason Maney further the following points emerged from the interview:

(a) Rex Maney told Jason Maney that he killed Mr Rikihana at his (Rex Maney’s) home.

(b) Rex Maney was coherent and knew what he was saying when he confessed to having killed Mr Rikihana.

(c) Rex Maney was physically strong at the time of Mr Rikihana’s death, the effects of his cancer “didn’t kick in ... until a little bit later”.

(d) Jason Maney couldn’t understand why Rex Maney had killed his close friend and thought that Rex Maney “might have even [been] a psychopath”. Jason Maney said he had seen psychopathic traits in Rex Maney, mainly “manipulating, lying, violence, no emotion”.

(e) Jason Maney met Mr Jury at Springhill Prison. Mr Jury said that he was potentially facing a life sentence for something that Rex Maney had done. Mr Jury did not say he was involved in the death of Mr Rikihana.

(f) Jason Maney told Mr Tinsley he would give evidence at Mr Jury’s trial if doing so would “bring out the truth”.

(g) Jason Maney told Mr Tinsley that he had previously been sentenced to two and a half years’ imprisonment for perverting the course of justice.

(h) Jason Maney would not have been surprised if Mr Rikihana had been murdered over issues connected to Rex Maney dealing in methamphetamine. Rex Maney was a heavy user of methamphetamine.

(i) Jason Maney also told Mr Tinsley that Rex Maney had claimed to have cut the throat of his partner but that she survived and that he may have been responsible for the disappearance of William Takato, who lived close to Rex Maney.

• [73] Mr Jury’s trial commenced in the High Court at Rotorua on 3 August 2020. By that time, Jason Maney had been released from prison. Mr Tinsley endeavoured to locate him. On 4 August 2020, Mr Tinsley managed to speak to Jason Maney on a cell phone. Jason Maney said to Mr Tinsley that while he had been happy to help out with the statement, he did not think it was in his best interests to go to court.
• [74] On 6 August 2020, Mr Nabney obtained a warrant to compel Jason Maney to be brought to court. On 7 August 2020, Mr Nabney opened the case for the defence. Mr Jury gave evidence, followed by his daughter. Mr Nabney was satisfied with the way Mr Jury and his daughter gave their evidence.
• [75] Jason Maney was taken to the High Court on 10 August 2020. He was spoken to by Mr Nabney and Mr Tinsley. Mr Nabney’s file note of that meeting reads as follows:

Jason Maney in interview room at court – accompanied by Glenn Tinsley – Maney gets worse as the meeting goes on – initially confirms that what he said was correct, then says that Jury was also involved, then goes on about him molesting his daughters. He said he had been pressured into making the statement, but did not say it was Jury. Talked about wanting to get on with his life and this would interfere. Not willing to assist. I asked that he remain at court while I took instructions.

• [76] Mr Tinsley’s unchallenged evidence was similar to the file note made by Mr Nabney. Mr Tinsley said in his affidavit:

6. [Mr Nabney] and I met with Jason [Maney] at the Rotorua court on the morning of Monday 10 August 2020. He was with police when we first met him. Jason [Maney] was very unhappy to be there, and said he did not want to give evidence. He said that if he was forced to give evidence, whatever he said would not help [Mr Jury].

7. Jason [Maney] acknowledged what he had previously told me, he said it was what Rex [Maney] had said but he did not know if it was the truth.

8. He said he could stand up and say he had been asked to lie and he would do that.

9. He also said words to the effect that “[Mr Jury] may not have done this, but he’s done a lot of other bad shit”. This statement appeared to be part of his justification for not repeating in court what he had previously told me.

• [77] Mr Nabney and Mr Tinsley then met with Mr Jury to discuss whether or not Jason Maney should be called as a witness. Mr Nabney’s file note of that discussion states:

... Tell him about the meeting with Maney – my view was that calling him would seriously jeopardise his defence – his evidence went well as did his daughter’s. Discussed hostile witness – I told him that we could do that potentially, depending on what he said in the witness box – but the real risk was that he would say he was pressured in prison and that he had left out [Mr Jury’s] involvement due to that – he agrees not to call [Jason] Maney – too risky.

• [78] In his affidavit filed in support of his appeal, Mr Jury disputes that he agreed to not call Jason Maney as a witness. Mr Jury states:

8. When Jason [Maney] was eventually brought to court, my lawyer Mr Nabney spoke with him. Mr Nabney then told me that Jason [Maney] was reluctant to give evidence, and that he would make life difficult for me if he gave evidence. I told him I didn’t care, and that we had to call Jason [Maney]. I said if we have to we should treat him as hostile and get in the statement he made to the private investigator.

9. Jason Maney was not called as a defence witness. That was against my wishes.

• [79] Mr Nabney advised the Court on 10 August 2020 that he had made the decision not to call Jason Maney. Closing addresses were then made by the Crown and defence followed by the Judge’s summing up. Mr Jury was found guilty on 11 August 2020.
• [80] The essence of the second ground of appeal is that Mr Nabney ignored Mr Jury’s express instructions to call Jason Maney as a witness. Mr Stevenson submitted:

The decision as to whether or not to call Mr Jason Maney to give evidence was central to Mr Jury’s ability to advance a defence based on his account of events. It was a fundamental trial decision of the type recognised by this Court as generally giving rise to a miscarriage of justice where specific instructions are not followed by trial counsel.^[16]

• [81] We have had the advantage of observing Mr Jury and Mr Nabney give their evidence and their responses when questioned by experienced counsel.
• [82] We are satisfied Mr Nabney was correct when he told us that he is:

31. ... acutely aware that ultimately how a defence is run is up to the Defendant and had, despite my advice, Mr Jury instructed me to call Jason Maney then I would have done so.

• [83] We prefer Mr Nabney’s evidence on this issue over that of Mr Jury for the following reasons:

(a) Mr Nabney is an experienced criminal lawyer who was very aware that ultimately the decision as to whether or not the defence should have called Jason Maney rested with Mr Jury.

(b) Mr Nabney’s contemporaneous file note clearly records that Mr Nabney gave Mr Jury candid advice not to call Jason Maney and that Mr Jury accepted that advice.

• [84] We acknowledge that the Court record states that Mr Nabney told the Court that he had decided not to call Jason Maney as a witness. However, that was probably an unfortunate misstatement by Mr Nabney. His contemporaneous file notes clearly show that Mr Jury followed Mr Nabney’s advice not to call Jason Maney as a defence witness.
• [85] Thus, because Mr Jury instructed Mr Nabney not to call Jason Maney as a witness, it was Mr Jury who controlled this aspect of his defence. Mr Nabney did not ignore his client’s instructions so as to cause a miscarriage of justice.

Third ground of appeal against conviction: Judge’s failure concerning directions as to reliability of Rex Maney’s statements

• [86] The third ground of appeal contends that the trial Judge erred when he failed to caution the jury about the reliability of Rex Maney’s statements, on account of those statements:

(a) being hearsay; and

(b) having been made by a person who may have had a motive to create false evidence.

• [87] Mr Stevenson submitted that the facts of this case “inarguably warranted judicial warning” to the jury about the reliability of Rex Maney’s statements because:

(a) his statements were “riddled with inconsistencies” and exhibited a high degree of self-interest and a motive to create false evidence; and

(b) defence counsel was denied the opportunity to cross-examine him.

• [88] The Crown submit however that no direction was required to be given about the reliability of Rex Maney’s statements because:

(a) Where the reliability of evidence is squarely before the jury, a warning is not necessary, particularly as such a warning may convey to the jury the judge’s concerns about the reliability of the evidence in question or over-emphasise it.^[17] A warning is likely to be only necessary “where the potential unreliability of the witness is not obvious for the jury to see”.^[18]

(b) The “potential unreliability” of Rex Maney was squarely before the jury. The prospect of Rex Maney having exaggerated or even lied was emphasised to the jury by Mr Nabney. A warning from the trial Judge would have added little to the jury’s understanding of the issues they were required to focus upon.

Analysis

• [89] The provision of judicial directions to juries about evidence which may be unreliable is governed by s 122 of the Evidence Act. The relevant parts of that section state:

122 Judicial directions about evidence which may be unreliable

(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—

(a) whether to accept the evidence:

(b) the weight to be given to the evidence.

(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:

(a) hearsay evidence:

(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:

(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:

(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a Police station, or another place of detention:

(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.

(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—

(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or

(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.

(4) It is not necessary for a Judge to use a particular form of words in giving the warning.

...

(6) This section does not affect any other power of the Judge to warn or inform the jury.

• [90] It is clear from s 122(1) that a reliability direction is not mandatory and may only be considered where the Judge forms the opinion that admissible evidence may nevertheless be unreliable.
• [91] The only mandatory requirement on a trial judge is to consider giving a warning whenever one or more of the categories of evidence set out in s 122(2) is placed before a jury. In this case, s 122(2)(a) and (c) were engaged and the trial Judge was therefore required to have considered giving a warning under s 122(1).
• [92] There is no record of the trial Judge having considered giving a direction pursuant to s 122. Mr Nabney thinks he may have raised the issue with the trial Judge, but there is no record of him having done so.
• [93] Our concerns about the apparent failure of the trial Judge to have considered giving a s 122 direction are reinforced by the guidance in the Supreme Court as given in relation to s 122 directions.
• [94] In CT v R, a case that concerned historical sex offending and therefore engaged s 122(2)(e), the Supreme Court emphasised that “the whole premise of the section is that it is not always appropriate to leave it to counsel to point out the risks associated with particular types of evidence”.^[19] The Supreme Court stressed that the Judge must take responsibility for pointing out these risks where “the jury [is] left with competing contentions from counsel and without any real assistance in addressing them”.^[20]
• [95] The approach taken by the Supreme Court in CT v R departed from the position this Court had taken, in which it had consistently questioned the need to give s 122 warnings where issues of reliability were obvious and where the giving of a warning risked the Judge over-emphasising the evidence in issue.^[21] In CT v R, the Supreme Court commented:

[50] ... A general view that [s 122] warnings are generally unnecessary or inappropriate is thus inconsistent with the premise of the section and cannot constitute a good reason not to give a warning for the purposes of s 122(3)(b).

• [96] Similar observations were made by the Supreme Court in L v R, another case of historical sexual offending.^[22] In that case, the Supreme Court noted its prior observations in CT v R,^[23] and commented that because of the 20-year lapse of time between the offending and the trial, a s 122 direction should have been given.^[24] Moreover, a question from the jury indicated they were having difficulty with the concepts of reliability and credibility, which would have provided a good opportunity for the Judge to give a warning under s 122.^[25]
• [97] We are satisfied it was incumbent upon the trial Judge to consider giving a s 122 direction, and that had the Judge done so he should also have concluded that, in this case, a s 122 direction was required. Such a direction would have explained:

(a) the jury should exercise caution about accepting Rex Maney’s statements, and if they did accept them, they should exercise caution regarding the weight that they should place upon those statements;

(b) the inherent difficulty in not having Rex Maney available to be cross‑examined on his statements;

(c) the competing positions of the Crown and defence on the reliability of the statements in issue; and

(d) that it was ultimately up to the jury to decide what, if any, parts of Rex Maney’s statements they accepted or rejected.

• [98] We are therefore of the view that the failure of the trial Judge to give a s 122 direction was an error, for the purposes of s 232(4) of the Criminal Procedure Act.
• [99] We are however satisfied that there is not a real risk that the outcome of the trial was affected by the trial Judge’s error in not considering a direction pursuant to s 122 of the Evidence Act, that is to say such a warning would have made no difference to the outcome of the case.^[26] As we have said at [68] above, the issues relating to Rex Maney’s hearsay evidence were well explored before the jury. But our reasons for reaching this conclusion primarily relate to the compelling case against Mr Jury. We have previously traversed that evidence and for present purposes we will confine ourselves to the following summary which demonstrates the strength of the Crown case against Mr Jury:

(a) Ms Eketone gave compelling evidence that only Mr Jury went to her house between 12.01 and 1.33 am on 29/30 January 2019 and Mr Jury was the only person involved in the altercation with Mr Rikihana.

(b) Mr Jury’s evidence, that Rex Maney went to Ms Eketone’s place on the night in question and was responsible for the assault on Mr Rikihana, was not supported by any other evidence. There is no merit in the defence theory that Ms Eketone was lying to protect Rex Maney. As she said under cross-examination, Rex Maney was dead by the time of the trial. He no longer required protection.

(c) Ms Eketone’s evidence is also supported by CCTV footage showing the movements of Mr Jury’s vehicle as it was driven between the key sites of interest on the night Mr Rikihana was murdered. There is no CCTV footage showing Rex Maney going to Ms Eketone’s property that night.

(d) Mr Iorangi’s evidence also supports Ms Eketone’s evidence, and the Crown’s case. He saw a shirtless man standing next to a vehicle that was parked in Ms Eketone’s driveway during the early hours of 30 January 2019. Mr Jury accepted he was not wearing a shirt when he placed Mr Rikihana’s body in the back of his car. Mr Iorangi also saw the legs of a person protruding from the back of the vehicle. That was consistent with Mr Rikihana’s legs hanging out from the back seat of Mr Jury’s vehicle. Mr Iorangi only saw one man near the car that evening.

(e) Mr Te Aonui’s evidence also supports the Crown’s case. He said he was woken at about 2.45 am by Mr Jury arriving at his property and that Mr Jury dumped Mr Rikihana’s body on Mr Te Aonui’s driveway.

(f) The forensic evidence which points to Mr Rikihana having been severely assaulted at the back of Ms Eketone’s property, and then dragged in the direction of the driveway also supports her evidence, as does the discovery of Mr Jury’s blood and fingerprints on a light switch inside her house.

(g) The presence of Mr Jury’s blood on the front of the shirt worn by Mr Rikihana also points towards Mr Jury’s guilt.

(h) It is also notable that Mr Jury’s car was found completely burnt out near Napier on 31 January 2019. It is reasonable to infer that this was a deliberate act by Mr Jury to destroy forensic evidence against him.

(i) We also consider it significant that no forensic evidence linked Rex Maney to the death of Mr Rikihana.

Fourth ground of appeal against conviction: did a miscarriage of justice arise from the failure to adduce evidence of Rex Maney’s conviction for perverting the course of justice?

• [100] Counsel for the appellant have introduced evidence concerning Rex Maney’s conviction for perverting the course of justice.
• [101] As we have explained at [3], this ground of appeal was pursued following the hearing of the appeal. Mr Stevenson submitted that a miscarriage of justice arose when Mr Nabney failed to adduce evidence of Rex Maney’s 2009 conviction for perverting the course of justice.
• [102] Mr Jury and Mr Nabney have sworn further affidavits addressing this issue. Neither were required for further cross‑examination.
• [103] After the hearing of this appeal, Mr Nabney initially told Crown counsel that he did not have instructions to not put Rex Maney’s convictions in issue. On further reflection however, Mr Nabney said that after Rex Maney’s hearsay statements were ruled admissible, he took instructions from Mr Jury on whether or not to adduce evidence about Rex Maney’s 2009 conviction for perverting the course of justice. Mr Nabney said in his affidavit:
  13. My concern then was that if [Rex] Maney's convictions were placed before the jury, that would potentially open the door for the Crown to seek leave to question Mr Jury in respect to some of his convictions, particularly those relating to previous convictions for violence, especially given the Crown case was that he had beaten the deceased.
  14. The matter was briefly discussed and Mr Jury accepted my advice that it was unlikely to help the defence in any material way on the basis that it is one thing to be able to cross examine a witness about their convictions and have that impact on the jury and another to simply put them in evidence.
  15. Conversely, if the Crown were able to cross examine Mr Jury on some of his convictions then that would have greater impact.
  16. There was no extensive discussion, Mr Jury simply accepted my advice that we not raise [Rex] Maney's convictions.
• [104] Mr Jury refutes Mr Nabney’s evidence. He says:

7. Mr Nabney never spoke to me about this. It simply did not happen.

• [105] We are satisfied Mr Nabney is likely to have taken instructions on this issue. As we shall explain however, there is an issue concerning the basis of Mr Nabney’s advice.
• [106] We agree with Mr Stevenson that Mr Nabney’s reasons for recommending Rex Maney’s conviction for perverting the course of justice not be pursued was likely based on a misunderstanding of s 38 of the Evidence Act. That section provides:

38 Evidence of defendant’s veracity

(1) A defendant in a criminal proceeding may offer evidence about his or her veracity.

(2) The prosecution in a criminal proceeding may offer evidence about a defendant’s veracity only if—

(a) the defendant has, in court, given oral evidence about his or her veracity or challenged the veracity of a prosecution witness by reference to matters other than the facts in issue; and

(b) the Judge permits the prosecution to do so.

(3) In determining whether to give permission under subsection (2)(b), the Judge may take into account any of the following matters:

(a) the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence:

(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence:

(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.

• [107] “Witness” is defined in s 4 of the Evidence Act to mean “a person who gives evidence and is able to be cross‑examined in a proceeding”. Rex Maney was therefore not a prosecution witness for the purposes of s 38(2) of the Evidence Act.
• [108] Ultimately, we must assess whether or not a miscarriage of justice arose through Mr Nabney not advising Mr Jury to adduce evidence about Rex Maney’s conviction for perverting the course of justice.
• [109] We note that Powell J was aware of Rex Maney’s convictions when he ruled admissible Rex Maney’s hearsay statements. Powell J was not influenced by Rex Maney’s previous convictions.^[27]
• [110] We also do not think that Rex Maney’s 2009 conviction for perverting the course of justice was likely to have added much to the jury’s evaluation of his inconsistent statements. The conviction occurred some 10 years prior to Rex Maney making his hearsay statements, and the jury is unlikely to have regarded that as a significant matter when considering the reliability of Rex Maney’s various statements.
• [111] We are therefore not satisfied that a miscarriage of justice arose through the advice Mr Nabney gave Mr Jury concerning Rex Maney’s 2009 conviction for perverting the course of justice.
• [112] We are therefore satisfied that the outcome of the trial was not affected by the error that we have examined at [89]–[98].
• [113] The appeal against conviction is dismissed.

Appeal against sentence

• [114] As we have noted at [3], the first two issues relating to the appeal against sentence are based on the submission that the trial Judge erred when he concluded that the circumstances of Mr Rikihana’s murder engaged s 104(e) and (g) of the Sentencing Act. Specifically, it was contended that the Judge erred when he concluded Mr Rikihana’s murder involved “a high level of brutality, cruelty, depravity, or callousness” and that Mr Rikihana was “particularly vulnerable”.
• [115] The sentencing notes record that there was no dispute at the sentencing hearing that the circumstances of Mr Rikihana’s murder satisfied the criteria set out in s 104(1)(e) and (g) of the Sentencing Act. The issue at sentencing was whether it would be manifestly unjust to impose the 17-year MPI prescribed in s 104.
• [116] We are satisfied that the murder of Mr Rikihana involved “a high level of brutality, cruelty, depravity, or callousness”.^[28] This conclusion is based on the fact Mr Rikihana was struck in the head with a hammer and kicked and stomped on repeatedly. There were 79 identifiable injuries, including 23 to his head and face, and 18 injuries to his neck. The towel found in front of the bach where Mr Rikihana slept was probably used in an effort to garrotte Mr Rikihana. Ms Eketone heard Mr Rikihana screaming and pleading for his life.
• [117] The attack on Mr Rikihana was prolonged. He survived for 35 minutes after the fatal injury to his brain. It was brutal and it was callous. Mr Rikihana was dragged to Mr Jury’s car, tied up and dumped either dead or close to death at Mr Te Aonui’s property.
• [118] Contrary to Mr Stevenson’s submission, this was not simply an altercation between two Mongrel Mob members that got out of control.
• [119] We are also satisfied Mr Rikihana was “particularly vulnerable” because, at the time of his murder, he was 69 years old, and a very slight man who weighed just 49 kgs.^[29] He was significantly smaller than Mr Jury, who stands approximately 6 feet 3 inches tall and was at least twice the weight of Mr Rikihana.
• [120] It is also significant that a large portion of the assault on Mr Rikihana occurred when he was on the ground unable to fend for himself.
• [121] There is however more force in Mr Stevenson’s submission that the High Court Judge failed to adequately assess the impact of Mr Jury’s profound cultural and social deprivation.
• [122] The High Court had before it a s 27 report which contained a credible account of Mr Jury’s social and cultural dislocation, poverty and the fact that he suffered significant traumatic physical and sexual abuse as a child and as a young person. The report contains a chilling description of the cruel and grossly abusive treatment that Mr Jury was subjected to as a child and within his family, and of the physical and sexual abuse that he suffered whilst an inmate at an institution.
• [123] In Carr v R, this Court explained that:^[30]

[60] ... where a cultural report provided under s 27 of the Sentencing Act contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse including by whānau members, unemployment, educational underachievement and violence as features of the offender’s upbringing such matters ought to be taken into account in sentencing. ...

• [124] This approach was reinforced by the Supreme Court in Berkland v R in which the Court explained that a defendant’s personal background will reduce their culpability if it had a “causative contribution” to the relevant offending.^[31] This will occur when the defendant’s background helps to explain how they came to offend. Berkland was not referred to in the sentencing notes, even though the Supreme Court’s judgment was delivered several months before Mr Jury was sentenced.
• [125] When we apply the Carr and Berkland approach to Mr Jury’s circumstances, we are satisfied that his violent upbringing and his social dislocation and extreme suffering helps explain his violent offending towards Mr Rikihana. These factors contributed to the offending that led to Mr Jury being convicted of murder.
• [126] Mr Jury’s murder of Mr Rikihana was a very violent crime. His offending was compounded by the fact that he has extensive criminal convictions, including 22 for violence.
• [127] We also consider Mr Jury’s age to be a factor, but not in itself determinative. A very long MPI is likely to mean Mr Jury will die in prison.
• [128] When we balance all relevant factors, we conclude that an MPI of 14 years is a proportionate response to Mr Jury’s offending and his personal circumstances.
• [129] We are therefore satisfied that an MPI of 17 years was, in the circumstances set out in the s 27 report, manifestly unjust.
• [130] The MPI of 17 years is set aside and substituted with an MPI of 14 years. This accurately reflects Mr Jury’s personal circumstances and provides a more appropriate sentence that reflects the significance of the offending and the principles set out in the Sentencing Act.

Result

• [131] The appeal against conviction is dismissed.
• [132] The appeal against sentence is allowed. The minimum period of imprisonment of 17 years is set aside and substituted with a minimum period of imprisonment of 14 years.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

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^[1] Sentencing Act 2002, s 104(1)(e).

^[2] Section 104(1)(g).

^[3] Section 104(1).

^[4] Criminal Procedure Act 2011, s 232(2)(c).

^[5] Section 232(4)(a).

^[6] R v Jury [2020] NZHC 736 [Hearsay decision].

^[7] At [12].

^[8] At [14(a)] and [14(b)].

^[9] At [14(b)].

^[10] At [15].

^[11] Adams v R [2012] NZCA 386 at [26].

^[12] Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at [EV18.02] (footnotes omitted).

^[13] Hearsay decision, above n 6, at [14(b)].

^[14] W v R [2020] NZSC 93, [2020] 1 NZLR 382 at [242] per Winkelmann CJ and Williams J.

^[15] Hearsay decision, above n 6, at [16].

^[16] Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].

^[17] Skantha v R [2021] NZCA 117 at [68]; Brunsell v R [2018] NZCA 156, (2018) 28 CRNZ 543 at [30]; Williams v R [2017] NZCA 176, (2017) 28 CRNZ 471 at [47]–[48]; B (CA231/2017) v R [2018] NZCA 137 at [35]; and B (CA58/2016) v R [2016] NZCA 432 at [61].

^[18] R v Harawira [1989] 2 NZLR 714 (CA) at 726.

^[19] CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [50] per Elias CJ, McGrath and William Young JJ.

^[20] At [51] per Elias CJ, McGrath and William Young JJ.

^[21] At [46] per Elias CJ, McGrath and William Young JJ, citing L (CA707/2012) v R [2013] NZCA 191 at [42]; rev’d L v R [2015] NZSC 53, [2015] 1 NZLR 658.

^[22] L v R, above n 21.

^[23] At [25].

^[24] At [30].

^[25] At [31].

^[26] R v R [2023] NZSC 132, [2023] 1 NZLR 507 at [70].

^[27] Hearsay decision, above n 6, at [16].

^[28] Sentencing Act, s 104(1)(e).

^[29] Section 104(1)(g).

^[30] Carr v R [2020] NZCA 357.

^[31] Berkland v R [2022] NZSC 143, 1 NZLR 509 at [107]–[112] per Winkelmann CJ, William Young, Glazebrook and Williams JJ.