The Queen v Aupouri

[2007] NZCA 86

IN THE COURT OF APPEAL OF NEW ZEALAND

CA344/06
[2007] NZCA 86

THE QUEEN

v

OSSIE PARETANE AUPOURI

Hearing:1 March 2007

Court:Arnold, Ellen France and Wilson JJ

Counsel:D J Sharp for Appellant

M D Downs and K Laurenson for Crown

Judgment:21 March 2007 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS ALLOWED.  THE CONVICTION IS QUASHED AND A RETRIAL IS ORDERED.

REASONS OF THE COURT

(Given by Arnold J)

[1]   The appellant was one of a group who attacked a member of a rival gang with fists, boots and bottles.  In the course of the attack one of the group (the perpetrator) stabbed the victim with a knife, killing him. 

[2]   The perpetrator was charged with murder.  The appellant and three others were charged with manslaughter as parties under s 66(1) of the Crimes Act 1961.

[3]   At the trial, there was no evidence that the appellant and the others knew that the perpetrator was carrying a knife.  Consistently with the authorities as he understood them Harrison J directed the jury that if they concluded that the perpetrator was guilty of murder, the appellant and the others would be guilty of manslaughter if they intended to assist each other (including the perpetrator) in an assault on the victim and participated in the assault for that purpose.

[4]   The perpetrator was convicted of murder, and the appellant and two others were convicted of manslaughter.  A fifth person was acquitted.  The appellant appealed, on the basis that he was not aware of the presence of the knife and that the fatal injuries were fundamentally different from the activity that he was involved in when they were inflicted.  The use of the knife was “an overwhelming and supervening event”.

[5]   Shortly before the appeal was to be heard, this Court delivered its decision in R v Hartley CA154/06 1 March 2007.  That case involved a similar situation to the present case.  The Court held that where liability as a party is alleged under s 66(1)(b) – (d), the Crown is required to prove that the alleged party was assisting in offending of the type which actually occurred.  The Court summarised the position as follows:

[54] As we have said, s 66(2) is available to deal with those cases where death is the probable consequence of the common enterprise whether specifically intended or not.  Section 66(2) may be utilised, for example, in the situation of a group attack where the members of the group all use weapons but of different types. … If the Crown chooses not to pursue s 66(2), s 66(1) requires that the Crown establish that what the secondary party was aiding, abetting, procuring, counselling or inciting caused death and not some quite different act or omission.  There are various ways of conceptualising how our conclusion is reached.  For example, it is possible to view the use of the knife as a “supervening event”.  Another way to view the matter is to say that there must be some more direct link between the act causing the death and what it was that the secondary party assisted or aided the principal to do.  In the final analysis, the definition of assault is so all‑embracing that where liability under s 66(2) is not asserted, s 66(1) must be applied to capture the reality of what the party was said to be involved in. 

[6]   In light of this decision, Mr Downs for the Crown accepted that the present appeal had to be allowed.  Accordingly we quashed the conviction and ordered a retrial.

Solicitors:

Burnard Bull & Co, Gisborne for Appellant
Crown Law Office, Wellington