IN THE COURT OF APPEAL OF NEW ZEALAND
CA666/2012
[2013] NZCA 464
BETWEEN
ROSS ROMANA
Appellant
AND
THE QUEEN
Respondent
CA756/2012
AND BETWEEN
JOSEPH TIE
Appellant
AND
THE QUEEN
Respondent
Hearing:
21 August 2013
Court:
French, Rodney Hansen and Mallon JJ
Counsel:
L Freyer for Appellant Romana
C M Clews for Appellant Tie
K A L Bicknell for Respondent
Judgment:
7 October 2013 at 10.00 am
JUDGMENT OF THE COURT
A
Mr Romana’s appeals against conviction and sentence are dismissed.
B
Mr Tie’s appeal against conviction is dismissed.
____________________________________________________________________
ROMANA & TIE v R CA666/2012 & CA756/2012 [2013] NZCA 464 [7 October 2013]
REASONS OF THE COURT
(Given by French J)
Introduction
[1]
Mr Romana and Mr Tie were found guilty at trial in the High Court of
various offences arising out of the alleged kidnapping of a Mr Han. The presiding
Judge, Courtney J, sentenced Mr Romana to a term of six years and six months’
imprisonment.1 Mr Tie was sentenced to a term of three years and three months’
imprisonment.
[2]
Both men now appeal their convictions.
Mr Romana also appeals his
sentence.
[3]
The key issues raised by the appeals are:
(i)
Did the Judge wrongly admit evidence that was unfairly prejudicial to
Mr Romana?
(ii)
Should the Judge have discharged the jury due to the conduct of other
co-accused?
(iii)
Did the Judge adopt too a high a starting point when sentencing
Mr Romana and apply an excessive uplift on account of totality?
(iv)
Did the Judge err in her directions to the jury regarding Mr Tie’s
liability as a secondary party?
Factual background
[4]
1
2
Mr Romana and Mr Tie were both members of the King Cobra gang.2
R v Tie [2012] NZHC 2517.
At trial one police witness said he had no information that Mr Tie was a member of the gang.
However in her sentencing notes Courtney J found that he was a member and no challenge has
been made to that finding on appeal.
[5]
The main complainant, Mr Han, was a loan shark for a Chinese triad gang,
the 14K. Mr Han asked the King Cobra gang to find one of his debtors, who owed
$70,000. The King Cobra gang duly located the debtor but a dispute then arose
between Mr Han and the King Cobra members over payment of a finder’s fee.
Mr Han claimed the agreement to pay a fee was contingent on the debtor being able
to pay him. The debtor was not able to pay Mr Han and so Mr Han refused to pay
the King Cobra members.
[6]
The Crown case at trial was as follows.
[7]
In December 2010 members of the King Cobra gang discussed how they
might extract payment from Mr Han. On 18 December a King Cobra member,
Mr Kopelani, went to Mr Han’s house and persuaded him to come and speak to
another King Cobra member, Mr Logo, about the money.
Mr Kopelani drove
Mr Han to Mr Logo’s house. They collected Mr Logo and went on to some other
addresses, where they collected Mr Romana and then Mr Tie. During the course of
the journey Mr Romana told Mr Han that the bill was $20,000 and demanded that
half of it be paid that day. The group then travelled in two vehicles to a house in
Bond Street.
[8]
The five men arrived at Bond Street at about 2.30 pm. Whether or not it
could be said Mr Han went there willingly, the Crown claimed that once he got there
he was undeniably detained against his will. Within a short time of arriving, Mr Han
was told that the money he owed the King Cobra gang had increased to over
$50,000.
[9]
Mr Han was frightened and in the hours that followed he made various phone
calls and sent various texts in an effort to obtain money or drugs in order to free
himself. En route to Bond Street, he had also phoned a friend, Mr Wu. Speaking in
Mandarin Chinese so no one else could understand, he had told Mr Wu to either
contact the police or enlist the help of a senior King Cobra member whom Mr Han
believed might be able to resolve the situation.
[10]
Mr Wu took up the second option and at sometime between 4 pm and
4.30 pm he arrived at the Bond Street address with another King Cobra member,
Mr Muli. Almost immediately after Mr Wu’s arrival, both he and Mr Han were
physically assaulted. They were kicked and punched in the head and body. Mr Wu
sustained a black eye, bruising, a chipped tooth and a broken nose, while Mr Han
suffered a wound to the top of his head and bruising to his face. Mr Wu was forced
to remain at the address with Mr Han. At one point Mr Wu’s car keys and cellphone
were taken by Mr Romana, who threatened to burn the car, while later in the evening
Mr Logo showed Mr Han a knife and threatened to cut off one of his fingers unless
the money was paid.
[11]
The two men were not released until 9 pm, when the police arrived having
been alerted to their predicament by Mr Han’s girlfriend. The police officers found
both Mr Wu and Mr Han injured and terrified.
[12]
Police charged Messrs Romana, Tie, Logo, Muli and Kopelani with various
offences arising out of the incident and they were tried together.
Mr Romana’s appeal against conviction
[13]
The jury found Mr Romana guilty of two counts of kidnapping, three counts
of blackmail, one count of injuring Mr Wu with intent to injure and one count of
wounding Mr Han with intent to injure.
Mr Romana was also convicted of
possession of methamphetamine for supply, police having found methamphetamine
when they searched the Bond Street address.
[14]
On appeal, counsel Mrs Freyer submits that a miscarriage of justice has
occurred on six grounds (alone or in combination). The six grounds are:
The trial Judge wrongly limited cross-examination on Mr Han’s own
gang and drug related activity.
Police evidence about a number plate found at the Bond Street address
was wrongly admitted.
The Judge should have declared a mistrial following police evidence
that the number plate was found as the result of executing a search
warrant.
A mistrial should have been declared after the repeated absences of
the co-accused Mr Logo during trial.
The Judge should have declared a mistrial as a result of the
circumstances surrounding Mr Kopelani’s guilty plea.
The Judge wrongly admitted evidence of a photograph showing
Mr Romana wearing a moon boot.
[15]
Mrs Freyer argues that these six matters are sufficient to give rise to a
substantial doubt as to whether the guilty verdicts were inevitable and whether the
trial was fair.
[16]
We turn now to consider each of the grounds in turn, mindful that Mrs Freyer
relies not only on each matter viewed individually but also on the cumulative effect
of them.
Cross-examination of Mr Han
[17]
During the course of Mr Han’s evidence, Courtney J was required to give a
ruling about the permitted scope of the cross-examination. Defence counsel all
wanted to cross-examine Mr Han on a number of topics relating to his own criminal
activities. On behalf of Mr Romana, Mrs Freyer sought to put the following matters
to Mr Han:
(a)
that the debt of $70,000 owed to Mr Han was for the supply of a
controlled drug;
(b)
that prior to the alleged offending Mr Han had taken a female
associate to a motel and kept her there against her will; and
(c)
details of the drug dealing activities of the 14K gang in which Mr Han
would have been involved.
[18]
Justice Courtney ruled that Mr Han could not be questioned about any of
these matters because in her view they were irrelevant to the proceeding, unduly
prejudicial and would not be “substantially helpful” to the jury in assessing Mr Han’s
veracity (as required by s 37 of the Evidence Act 2006).3 The Judge also noted that
in relation to the allegations of kidnapping the female associate, she would be
required to give Mr Han a warning against self incrimination.
Mrs Freyer submits that Mr Han’s credibility and veracity were crucial
[19]
because his account of what happened at Bond Street differed radically to that given
by Mr Romana.4 Yet the Judge’s ruling meant that defence counsel were hampered
in their cross-examination and unable to adequately challenge Mr Han’s story. It
enabled Mr Han, for example, to “get away” with appearing naive and inexperienced
regarding drug matters. This is said to be particularly unfair when “so much” was
included about Mr Romana’s gang affiliations and criminal activities. Mrs Freyer
contends that the jury’s assessment of Mr Han’s credibility may have been
substantially different had the above matters been put to Mr Han and hence the
verdict might have been different.
[20]
We disagree. The jury knew Mr Han was a member of a triad gang, knew
that he was a loan shark and knew that while being held captive he had been able to
arrange a delivery of pseudoephedrine towards payment of the debt at very short
notice.
Defence counsel had also exposed several inconsistencies between his
evidence and what he had told police. In our assessment of the evidence, it is highly
doubtful that cross-examining him any further would have achieved anything more.
As the Judge noted, there was already adequate material on which counsel could
challenge his veracity. Allegations of other wrongdoing were likely to have been
met with a flat denial, which Mrs Freyer candidly acknowledged she did not have the
evidence to contradict.
3
4
R v Tie HC Auckland CRI-2011-004-12004, 20 July 2012 (Ruling (2) of Courtney J).
Mr Romana claimed that he had nothing to do with the debt, had not met Messrs Wu or Han
before, had merely offered a place for the men to talk about the debt and did not assault or
threaten them.
[21]
In our view, the further cross-examination was essentially an attempt to
blacken Mr Han’s character and the Judge was right to exclude it for the reasons she
did. Evidence about the detail of the $70,000 debt, the associate’s stay in a motel
and the general activities of the 14K gang was not substantially helpful in assessing
Mr Han’s veracity.
As Ms Bicknell points out, there is no logical connection
between the intended cross-examination and Mr Han’s veracity. In terms of s 37 of
the Evidence Act, the evidence does not show lack of veracity by Mr Han when
under a legal obligation to tell the truth. Nor does it show previous inconsistent
statements or bias or a motive to lie about the events at Bond Street that day.
Mr Han has no convictions demonstrating a propensity for dishonesty.
Admissibility of evidence about the number plate
[22]
There was evidence that after rescuing Mr Han and Mr Wu, the police
searched the Bond Street address and found a number plate with the lettering
KRAZY. Mr Romana’s street name was “Crazy Horse”. It was not disputed that the
number plate belonged to him.
[23]
At the trial, Mrs Freyer objected to evidence which a Detective Ekins
proposed to give about having returned the number plate to Mr Romana a few days
before the 18 December incident. Her concern was that any reference to the police
returning the number plate to Mr Romana was likely to evoke suspicion in the jurors’
minds that Mr Romana had been involved in other recent offending.
[24]
Justice Courtney rejected that argument.5 In the Judge’s view, the fact the
number plate was returned to Mr Romana did not in itself carry any particular
connotation. It was equally possible that the number plate may have come into the
hands of the police in a manner that was not connected with any wrongdoing by
Mr Romana, for example if he was the victim of a theft.
Justice Courtney
accordingly allowed the evidence to be given.
[25]
On appeal, Mrs Freyer submits that the evidence should not have been
admitted because its probative value was limited and outweighed by its unfairly
prejudicial effect.
5
Mrs Freyer further submits that the Judge’s approach was
R v Tie HC Auckland CRI-2011-004-12004, 6 August 2012 (Ruling (5) of Courtney J).
inconsistent because she did not allow Detective Ekins to give evidence about
finding a hooded top at Bond Street which he recognised as an item he had seen
Mr Romana wearing on numerous occasions.
[26]
We do not accept those submissions. As Courtney J noted, the extent of
Mr Romana’s connection with the Bond Street address had become an issue in the
trial. The Crown case was that the house was occupied by Mr Romana and was his
principal place of residence. Mrs Freyer’s earlier questioning of another witness,
however, had sought to show that Mr Romana’s connection with the address was a
casual one and that he was seldom there. The significance of the number plate lay in
the fact that it was found at the address a few days after Detective Ekins had handed
it to Mr Romana, thereby demonstrating a very recent and arguably primary
connection to the address. We agree with the Crown that the number plate evidence
was and remained explicable on a basis not inviting negative conjecture on the part
of the jury. Further, we consider that there was a valid distinction between the
number plate and the hooded top. Evidence had already been given by Mr Romana’s
girlfriend that there were various items of clothing belonging to him at the address.
Therefore the identification of one top had limited probative value (certainly less
than the number plate), while the means by which it was identified (the fact that
Mr Romana had been seen by the police on numerous occasions) had prejudicial
connotations which the return of the number plate did not.
[27]
In our view, the Judge did not err in allowing Detective Ekins to give
evidence about returning the number plate.
Should the Judge have declared a mistrial due to the reference to a search warrant?
[28]
Mrs Freyer contends that when Detective Ekins gave his evidence about the
number plate, he said that he had originally found it as the result of executing a
search warrant at the Bond Street address. It had been taken to the police station and
then subsequently collected by Mr Romana on 16 December 2010. References to
executing a search warrant at the Bond Street address prior to 18 December had
never been disclosed before and were not included in the Detective’s brief of
evidence.
[29]
Mrs Freyer asked the Judge to discharge the jury. The Judge declined to do
so, ruling that although the reference to a search warrant was regrettable, it was a
problem that could be satisfactorily resolved by an appropriate direction to the jury.6
In her summing-up, the Judge duly told the jury that it was “completely irrelevant”
that one of the accused may have had some prior dealings with the police and that it
should not distract them from their job.
[30]
On appeal, Mrs Freyer contends that the direction given was insufficient to
counter the unfair prejudice that had arisen and that the Judge should have declared a
mistrial. In Mrs Freyer’s submission, the giving of the evidence was a serious
breach of the Judge’s original ruling about the number plate and the resulting
prejudice was so significant it was incapable of being neutralised by any direction.
[31]
It appears that both Mrs Freyer and the Judge were labouring under a
misapprehension as to what Detective Ekins actually said. The transcript shows that
he did not say the search warrant had been executed at the Bond Street address. The
actual words used were “I’d carried out a former warrant on an address” (emphasis
added), which would of course be consistent with Mr Romana being the victim of a
theft and having stolen property returned to him by the police.
[32]
In any event, even if the Detective had said it was the Bond Street address,
we do not consider that was an error capable of affecting the verdict. The reality is
that the jury already knew Mr Romana was a patched member of a gang and
therefore likely to have had past dealings with the police.
The repeated absences of Mr Logo
[33]
During the trial one of the co-accused, Mr Logo, was repeatedly absent from
the courtroom due to illness. This resulted in several lengthy interruptions to the
trial.
[34]
In her summing-up, the Judge cautioned the jury against having any feelings
about the fact that Mr Logo was ill during the trial. The Judge said the jury might
feel sympathetic towards him or they might feel a bit annoyed because of the
6
R v Tie HC Auckland CRI-2011-004-12004, 14 August 2012 (Ruling (15) of Courtney J).
inconvenience his absences caused.
The Judge told the jury that it was very
important they did not let themselves be distracted and allow those feelings to affect
them.
[35]
Mrs Freyer submits that having heard Mr Logo and Mr Romana were both
patched gang members, the jury would have been suspicious that Mr Logo was not
in fact ill but malingering and trying to derail the trial for the benefit of himself and
his fellow gang members. Therefore, in Mrs Freyer’s submission, there was unfair
prejudice and the Judge should have discharged the jury.
[36]
We do not accept that argument. The trial records show that Courtney J told
the jury that Mr Logo had been in hospital with a medical condition which she had
been advised was painful but not life-threatening. If the jury were entertaining any
suspicions about the genuineness of Mr Logo’s illness, this would have dispelled
them.
In our assessment, Courtney J managed the problems occasioned by
Mr Logo’s absences well and there was no reason to declare a mistrial.
Mr Kopelani’s prevarication over his guilty pleas
[37]
During the trial one of the co-accused, Mr Kopelani, indicated through
counsel on 2 August 2012 that he intended to enter guilty pleas to four counts.
[38]
At 12.30 pm on 2 August 2012, Mr Kopelani was brought into court before
the jury (but in the absence of the other co-accused) to enter his pleas. The jury were
not told what was to happen. When the first charge was put to Mr Kopelani, he
responded with a not guilty plea, much to the surprise of his counsel. In the Judge’s
minute about the events of that day, she records there was generally confusion and
incredulity in the court.7
[39]
The jury were asked to retire so that the Judge could speak to counsel about
the unexpected turn of events.
7
R v Tie HC Auckland CRI-2011-004-12004, 3 August 2012 (Minute of Courtney J).
[40]
The following day, 3 August, Mr Kopelani was again brought into the court
before the jury, again in the absence of the other co-accused. This time, he pleaded
guilty to each of the charges that were put to him.
[41]
Counsel for Mr Tie then asked the Judge to discharge the jury on the ground
that the pleas and the circumstances in which they had been entered had prejudiced
his client’s position and precluded a fair trial. The Judge declined this application.8
She did so on the grounds that although the actions of Mr Kopelani on 2 August
were most unsatisfactory, none of the other co-accused had been present in the dock
with him at the time and there was no reason to believe that the jury, properly
directed, would approach the task of assessing the case against each of the remaining
accused any differently because of what had happened. Subsequently the Judge
directed the jury in her summing-up that the guilty pleas were not a factor to be
taken into account in considering the case against each of the remaining co-accused.
[42]
On appeal Mrs Freyer submits that the manner in which Mr Kopelani entered
his pleas would have generated suspicion in the jurors’ minds that his first attempt
was unsuccessful because of pressure from the other co-accused. Mrs Freyer further
submits that the Judge’s direction was not sufficient to dispel that suspicion and the
resulting unfair prejudice. The Judge should have declared a mistrial.
[43]
We disagree. It is likely the jury were bemused by what happened but given
that the other co-accused were absent and given that Mr Kopelani did in fact
eventually enter guilty pleas, we are not convinced the jury would have assumed he
was under pressure from others, as opposed to just being indecisive and confused.
There are no grounds on which Courtney J ought to have discharged the jury because
of the pleas or the manner in which they were entered.
The moon boot photograph
[44]
In his evidence, Mr Han said that he had met Mr Romana on a previous
occasion.
Mr Han described Mr Romana at that time as wearing a white and blue
moon boot or cast. Mr Romana elected to give evidence. He said that he had never
met Mr Han before 18 December. He also stated that although he had sustained an
8
R v Tie HC Auckland CRI-2011-004-12004, 9 August 2012 (Ruling (8) of Courtney J).
injury prior to 18 December and had worn a moon boot, the moon boot was black
and did not have any blue or white on it. He further claimed that the only reason
Mr Han knew he had ever worn a moon boot was because it had been discussed at
Bond Street on 18 December.
[45]
The prosecution then sought to adduce as evidence in rebuttal a photograph
taken by police in 2010 showing Mr Romana wearing what appears to be a blue and
white moon boot. Mrs Freyer objected to the photo being produced. However the
Judge granted the prosecution’s application9 and the photograph was produced as an
exhibit through Mr Romana in cross-examination.
[46]
Mrs Freyer contends that the prejudicial effect of the photo outweighed its
probative value. In her submission, the fact that the photograph was taken by the
police unbeknownst to Mr Romana carried the clear inference that Mr Romana had
been under surveillance by the police for other offending. 10 Mrs Freyer also submits
that the inference Mr Romana was under surveillance was further heightened by
police evidence about Mr Romana’s general cellphone usage and by the way the
prosecuting counsel responded to Mr Romana’s assertion he did not take drugs. The
prosecutor said “I believe you”, suggesting in Mrs Freyer’s submission that counsel
had knowledge of Mr Romana.
[47]
Under s 98 of the Evidence Act, a judge may permit the prosecution to offer
further evidence after closing its case where the evidence relates to a matter arising
out of the conduct of the defence, the relevance of which could not reasonably have
been foreseen, or where for any other reason the interests of justice require the
further evidence to be admitted.
[48]
In our view, the interests of justice did require the Judge to permit the rebuttal
evidence to be given. Mr Romana had refused to be interviewed by the police and it
could not have been anticipated that he would deny meeting Mr Han before
18 December or that he would claim he was wearing a different coloured moon boot.
As for the inference that Mr Romana was under surveillance, we repeat the comment
9
10
R v Tie HC Auckland CRI-2011-004-12004, 17 August 2012 (Ruling (17) of Courtney J).
The Judge did not address this argument in her ruling although Mrs Freyer says she raised it at
the time in addition to an argument about lack of pre-trial disclosure.
made in relation to the search warrant argument. The jury knew Mr Romana was a
patched member of the King Cobra gang and it would therefore have come as no
surprise that the police were interested in him and were keeping him under close
watch. As Ms Bicknell put it, police interest in the activities of gang members
carried no unfair prejudice for Mr Romana over and above that inherent in the fact of
his gang membership. In the context of this case, we are satisfied there was no
unfair prejudicial effect which outweighed the probative value of the photo as
rebuttal evidence.
Conclusion on conviction appeal
[49]
We are satisfied that none of the grounds of appeal, whether viewed
individually or collectively, warrant appellate intervention.
[50]
The appeal against conviction is dismissed.
Mr Romana’s appeal against sentence
[51]
As mentioned above, Mr Romana appeared for sentence on the following
charges:
two counts of kidnapping;
three counts of blackmail;
one count of injuring with intent to injure;
one count of wounding with intent to injure; and
one count of possession of methamphetamine for supply.
[52]
At sentencing, the Judge accepted there was no evidence of Mr Romana’s
involvement in a plan to hold Mr Han and extract the money before he arrived at
Bond Street on 18 December.
However, the Judge said she was satisfied that
Mr Romana had played the prime role in the course of that afternoon and evening.
She stated that it was Mr Romana who increased the amount of the finder’s fee and
demanded that Mr Han produce either money or drugs, and that Mr Romana played a
direct role in the violence meted out to Messrs Wu and Han.
[53]
The Judge went on to say she considered a starting point of five and a half
years for the kidnapping and blackmail charges was appropriate, with concurrent
sentences of two and a half years on the wounding and injuring charges and three
years for the drug offence. The Judge then adjusted the starting point upwards by
15 months for the totality of the offending, with a further increase of three months on
account of Mr Romana’s previous convictions.11 As regards mitigating factors, the
Judge said she was prepared to allow a discount of six months for time spent on
electronically monitored bail.
[54]
That resulted in an end sentence of six years and six months’ imprisonment.
[55]
On appeal against that sentence, Mrs Freyer advances two grounds of appeal.
[56]
First, Mrs Freyer submits that the starting point of five years and six months
for the kidnapping and blackmail charges was too high having regard to the
comparator cases of R v Rangitaawa, R v Duffy, R v Mehana and R v Moffatt.12 The
starting points adopted in those cases were as follows:
Duffy – four years’ imprisonment;
Rangitaawa – four and a half years’ imprisonment;
Moffatt – five to five and a half years imprisonment;13 and
Mehana – six years imprisonment.
[57]
Mrs Freyer argues that Mr Romana’s offending was only slightly more
serious than the offending in Rangitaawa and Duffy, and less serious than the
11
12
13
Thirty-eight previous convictions since 1994.
R v Rangitaawa HC Christchurch CRI-2004-009-14066, 11 August 2005; R v Duffy HC
Christchurch CRI-2009-042-2801, 15 April 2010; R v Mehana HC Auckland CRI-2007-00423679, 11 December 2009; R v Moffatt CA193/01, 30 October 2001.
The starting point actually identified by the sentencing Judge was six years, but it was reached
by factors relating to both the offending and the offender personally.
offending in Mehana and Moffat. Accordingly, in her submission, an appropriate
starting point would have been no more than five years’ imprisonment.
[58]
We disagree. Sentencing is not a mathematical exercise and the fact that
Mrs Freyer’s suggested alternative starting point is only six months less than the
starting point adopted by Courtney J is, in our view, telling. On appeal, our focus is
on the range available to the Judge. There are aspects of this case which are less
serious than the facts of some of the other cases, but equally there are also aspects
which are more serious. For example in this case, unlike in Moffatt and Duffy, there
were two victims, one of whom (Mr Wu) was a complete innocent. He did not owe
money to anyone and had no connection with the deal over the finder’s fee.
Messrs Wu and Han were also detained for a substantial period of time, longer than
the victims in Rangitaawa, Moffatt and Duffy. Further, they only escaped after a
police rescue. In all the other cases except Moffatt, the kidnappers released their
captives. Unlike in Rangitaawa, actual violence was used.
[59]
In our view, comparison with the facts of the other cases does not
demonstrate that Courtney J’s starting point was out of kilter. There were significant
aggravating factors in this case, including the unlawful detention of two victims and
the use of actual physical violence and threats of mutilation with a knife in an
attempt to extort drugs and large sums of money. The detention lasted several hours
and the victims were terrified for their lives.
They only escaped through the
intervention of the police and suffered physical and emotional harm. Further, in our
assessment of the evidence, Courtney J was correct to treat Mr Romana as the lead
offender.
He took part in the violence against each victim and directed what
occurred.
[60]
The second ground of appeal advanced by Mrs Freyer is that the Judge’s
uplift of 15 months on account of totality was excessive and involved an element of
double counting because it included Mr Romana’s criminal history. Mr Romana’s
previous convictions were the subject of an additional uplift of a further three
months.
In contending that the Judge double counted Mr Romana’s criminal
[61]
convictions, Mrs Freyer relies on a passage in the sentencing notes where the Judge
said:14
I must, however, make a further adjustment so that the end sentence fairly
reflects the fact that you have a number of previous convictions and the
totality of all the offending that I am sentencing on.
[62]
However the remainder of the paragraph in question makes it clear that the
Judge has not double counted. The sentences immediately following the quote show
that there are two parts to the adjustment, one for totality and the other for previous
convictions. It is also clear that the increase of 15 months is for totality in relation to
the index offending alone.
[63]
We also reject Mrs Freyer’s submission that an uplift of 15 months did not
appropriately reflect the totality of the offending including as it did two counts of
kidnapping, three counts of blackmail, one of injuring with intent to injure, one of
wounding with intent to injure, and one of possession of methamphetamine for
supply. This was serious offending and an uplift of 15 months from a starting point
of five and half years was justified.
[64]
Mr Romana’s appeal against sentence is accordingly dismissed.
Mr Tie’s appeal against conviction
[65]
Mr Tie was convicted of being a party to the unlawful detention of Mr Han,
the blackmail of Mr Han and wounding Mr Han with intention to injure him. The
jury acquitted him of all of the counts relating to the offending against Mr Wu.
Mr Tie was sentenced to a term of imprisonment of three years and three months and
given a first strike warning.
[66]
Before turning to the specific grounds of appeal, it is necessary to explain the
Crown case against Mr Tie in greater detail.
14
R v Tie, above n 1, at [17].
[67]
Sometime after Mr Han had let it be known he wanted the King Cobra gang
to find the debtor, it was Mr Tie who first met with him and showed him a photo of
the debtor on Mr Tie’s cellphone. According to Mr Han’s account of the meeting,
Mr Tie wanted $10,000 for having found the debtor but he, Mr Han, refused to pay
anything until he had seen the debtor in person and the debtor had paid him. Shortly
after this meeting, Mr Tie phoned Mr Han and demanded payment of $10,000
saying: “We are members of KC, you behave yourself properly.” Some weeks later,
Messrs Romana and Logo brought the debtor to a meeting with Mr Han and a figure
of $20,000 was mentioned. For his part, Mr Tie had no further contact with Mr Han
until the day of the alleged kidnapping on 18 December, although text messages
between gang members prior to that date showed he was involved in discussions
about recovering the money Mr Han owed them.
[68]
According to the Crown case, Mr Tie was one of the group that drove with
Mr Han to the Bond Street address on 18 December and was there when the police
arrived in the evening. It was accepted that Mr Tie did not remain at the premises
the whole time and that he did not assault either Mr Wu or Mr Han. However, based
on cellphone records and the testimony of Mr Han, the Crown alleged that Mr Tie
was present when the assaults took place and that when Mr Logo threatened to cut
off Mr Han’s fingers, Mr Tie said “yes, cut off one, one of his fingers”.
[69]
The Crown contended that while Mr Tie may not have been a principal
offender, he was liable as a party either because he had procured or encouraged all of
the offending against Mr Wu and Mr Han or alternatively because he was party to a
common intention to kidnap the two men and the blackmail and the assaults were
known probable consequences of that common intention.
[70]
Mr Tie did not give evidence at the trial. However, in a pre-trial statement to
the police, he said he had only been at the address for 10 to 15 minutes prior to the
police arriving and had not been there at all earlier in the day.
[71]
On appeal, the focus was on the correctness and adequacy of the Judge’s
various directions to the jury.
The Judge’s question trail on count one
[72]
In regards to count one (kidnapping Mr Han), the Judge told the jury in her
summing-up that:
[I]n essence, the Crown case is that Mr Tie organised for Mr Han to be
brought to a place to sort out payment of this debt. Alternatively, that he
encouraged. If he did not actually do the organising he got there and he was
encouraging other people to do this and to keep Mr Han there at Bond Street.
It was his debt and he had arranged for his associates to collect it but kept
himself out of the frame. That is the Crown case.
[73]
The Judge then went through a question trail which read:
Count 1
Kidnapping – Joseph Tie
That JOSEPH TIE on or about 18 December 2010, at Auckland,
together with Robert Logo, Ross Romana and Sione Muli, unlawfully
detained Shuo Han without his consent, or with his consent obtained by
duress, with intent to cause him to be confined.
All questions relate to the events on 18 December 2010 either in the
van or at 28C Bond Street.
You must be satisfied beyond reasonable doubt when answering
each question.
1.
Joseph Tie as a party by encouraging, procuring or inciting
1.1 Are you sure that Joseph Tie arranged for one or more of the other
accused to detain Shuo Han knowing that the other accused was or were
intending to cause him to be confined
If No, go to question 1.2.
If Yes, go to question 1.2.
1.2 Are you sure that Joseph Tie encouraged one or more of the other
accused to detain Shuo Han, knowing that the other accused was or
were intending to cause him to be confined?
If No, find Not Guilty.
If Yes, go to question 1.3.
1.3 Are you sure that Shuo Han did not consent to being detained?
If No, go to question 1.4.
If Yes, go to question 1.5.
1.4 Are you sure that Shuo Han’s consent was obtained by duress?
If No, find Not Guilty.
If Yes, go to question 1.5.
1.5 Are you sure that Joseph Tie knew that Shuo Han was not consenting to
being detained or this consent had been obtained by duress?
If No, find Not Guilty.
If Yes, find Guilty.
[74]
Mr Clews submits that the question trail was flawed because regardless of
whether the answer to question 1.1 (arranging the event) was yes or no, the jury still
had to move on to question 1.2 (encouraging after the event has commenced).
Mr Clews argued this was not only confusing and illogical but it also raised the
spectre of the jury not being unanimous. It was possible only part of the jury agreed
on the arranging intent and part on the encouraging intent.
[75]
We accept the structure of the question trail is incorrect. Instead of being
directed to move onto question 1.2 regardless of its answer to question 1.1, the jury
should have been told that if it found “yes” to either question 1.1 or question 1.2
then it was to move onto question 1.3. If it found “no” to both question 1.1 and
question 1.2, then it must acquit. As it was, the question trial rendered question 1.1
pointless. However, the error did not disadvantage Mr Tie. Under the question trail,
the jury still had to all be satisfied that Mr Tie had encouraged the detention. Indeed,
if anything, the error was at least theoretically to Mr Tie’s potential advantage. If all
the jurors were satisfied he had organised the kidnapping but were divided as to
whether he had subsequently encouraged it, the question trail would have resulted in
an acquittal. Yet in law the Crown was not required to prove both to secure a
conviction.
Did the Judge misdirect the jury on count three?
[76]
Count three was the blackmail charge.
In contending that the Judge
misdirected the jury on that count, Mr Clews relies on a statement the Judge made in
her summing-up while explaining one of the questions in the relevant question trail.
The question asked the jury whether they were sure that encouraging one or more of
the other accused to threaten the safety of Mr Han or Mr Wu was not a reasonable
and proper means of obtaining money or drugs. In her summing-up, the Judge read
out the question and said: “[I]f you have answered no, you will find not guilty. But
if you are sure encouraging a threat to safety is a reasonable and proper means to
recover money then you will answer yes and find guilty.”
[77]
Mr Clews submits the last sentence quoted above makes the direction
impossible to follow and would have confused the jury. He further contends that the
same flaw vitiates the Judge’s direction on common intention in relation to
count three.
[78]
We disagree. All that has happened is that one word, the word “not”, has
been omitted from one sentence. Either it is a mistake in the transcription or the
Judge made a slip of the tongue. If the latter and the jury did notice, they would
have realised it was just a slip of the tongue because it was patently nonsensical.
The question trail (which is the document the jury had before it while deliberating)
made it clear what the Crown was required to prove. We are satisfied the jury would
not have been confused and are reinforced in that conclusion by the fact that trial
counsel did not raise any concerns at the time. If the slip was missed by counsel,
then it is likely to have been missed by the jury.
Was the Judge’s direction on count seven adequate?
[79]
Count seven was a charge of wounding Mr Han with intent to injure. The
Judge left this count with the jury solely on the basis of common intention under
s 66(2) of the Crimes Act 1961. In her summing-up, Courtney J said of count seven:
... there is no dispute, about the fact that [Mr Han] had sustained these
wounds. The question is again who did it? But for Mr Tie, he again is in the
frame as far as the Crown is concerned just by common intention. Was he a
party to the plan to detain? We have talked about that. If he was, did he
know that Mr Han might get wounded as things turned out?
[80]
The question trail provided to the jury read:
Count 7
Wounding with intent to injure – Joseph Tie
That JOSEPH TIE on or about 18 December 2010, at Auckland,
together with Robert Logo, Ross Romana and Sione Muli, with intent to
injure Shuo Han, wounded him.
All questions relate to the events on 18 December 2010 at 28C Bond
Street.
You must be satisfied beyond reasonable doubt when answering
each question.
1.
Joseph Tie as a party by common intention
1.1 Are you sure that Joseph Tie was party to a common intention with one
or more of the other accused to detain Shuo Han unlawfully and help
one another in doing so?
If No, find Not Guilty.
If Yes, go to question 1.2.
1.2 Are you sure that, although Joseph Tie may not have intended that
another accused would wound Shuo Han he knew that, in detaining
Shuo Han unlawfully, that might well happen?
If No, find Not Guilty.
If Yes, find Guilty.
[81]
On appeal, the arguments regarding the direction evolved during the course
of the hearing.
[82]
Initially, in his written submissions, Mr Clews contended that liability on the
basis of common intention was not available to the jury for two reasons. First,
because Mr Muli (the King Cobra member who had accompanied Mr Wu to Bond
Street) was acquitted as being a party through common intention and secondly
because common intention was not consistent with the evidence of Mr Tie’s activity.
Mr Clews pointed out that on the evidence, Mr Tie allegedly undertook only one
activity during the whole of the six and a half hours, namely saying “yes one finger
off” when Mr Logo threatened Mr Han with the knife.15 Accordingly, in Mr Clews’
submission, to be consistent with the evidence the Judge should have left the count
with the jury on the basis of encouraging Mr Logo under s 66(1), not common
intention under s 66(2). The application of s 66(2) was said to have the flaw that if
the kidnapping or kidnapping/blackmail are the common purpose of all the accused,
“one finger off” is not evidence of such a common purpose allowing Mr Tie to be a
party to the wounding of Mr Han.
[83]
However, as submitted by the Crown, that analysis is misconceived. The
wounding charge related to the blow that Mr Han received to the head. It did not
relate to Mr Logo’s threat to remove one of Mr Han’s fingers. We also accept, as
submitted by the Crown, that there was sufficient evidence for a reasonable jury to
convict Mr Tie on count seven on the grounds that he shared a common intention to
15
As Mr Clews also pointed out, Mr Han’s evidence that this had been said by Mr Tie was not
supported by Mr Wu.
unlawfully detain Mr Han and he knew wounding Mr Han was a probable
consequence of that common intention.
[84]
As already mentioned, there was evidence that Mr Han’s debt was originally
owed to Mr Tie and that the motivation for kidnapping Mr Han was the collection of
the debt. Mr Tie was a party to the pre 18 December discussions about recovering
the debt, and when Mr Kopelani went to collect Mr Han on 18 December one of the
first things he did was tell Mr Han that he was there to collect Mr Tie’s $10,000.
There was also evidence that on arrival at the Bond Street address, Mr Romana
asked Mr Han if he recognised Mr Tie and said: “so now you know who Joe is,
would you know that you owe him $10,000?” Clearly it was open to the jury to
draw the inference that Mr Tie was not at the address by accident, and that he knew
that the reason others were there in force was because there were to be stand over
tactics, with all that might entail.
[85]
Further, while the evidence showed that Mr Tie subsequently left the address
and returned, the cellphone polling evidence indicates that he arrived earlier than he
claimed to the police and was therefore likely to have been present when the assaults
took place, as claimed by Mr Han. His return to the address could reasonably be
viewed as indicating an active choice to be involved in the offending against
Mr Han. The “one finger off” comment, if accepted by the jury, further indicated
that he was aware of what was going on and endorsing it.
[86]
The fact that Mr Muli was acquitted does not in our view assist Mr Tie.
Mr Muli’s involvement was more remote. Mr Muli was not owed any debt and only
came to the Bond Street address late in the afternoon at the request of Mr Wu.
[87]
At the hearing before us, Mr Clews accepted the force of these arguments but
submitted in the alternative that if the count was to be left with the jury on the basis
of common intention, then it required a fuller explanation than the one the Judge
gave. In particular, he submitted that the Judge had not made clear the time at which
Mr Tie must have formed the common intention and had not properly explained the
link between the common intention, Mr Tie and the wounding having regard to his
absences during the afternoon. In Mr Clew’s submission, although blackmail can be
readily inferred as a direct consequence of detaining someone, wounding is in a
different category. The Judge needed to direct the jury on the matters they could
take into account in deciding whether to draw that inference. The failure to do so
rendered the direction inadequate.
[88]
We accept that a fuller direction may have been desirable, especially because
secondary liability is a difficult concept and the closing address of trial counsel (not
Mr Clews) barely touched on this issue.
[89]
However, we also consider that the direction given, when combined with the
question trail, was sufficient. The question trail made it clear that it was the events
on that day that required the jury’s consideration. Further, criticism of the brevity of
the Judge’s direction needs to be tempered by reference to the fact that elsewhere in
the summing-up there are good explanations about liability as a party under s 66(2)
and about the drawing of inferences, as well as a specific direction in relation to the
count of being a party to injuring Mr Wu about the evidence the jury should consider
in deciding the existence of a common intention and Mr Tie’s knowledge of probable
consequences. That was why the Judge said in her summing-up on count seven: “we
have talked about this”.
[90]
We are satisfied there are no grounds on which to overturn Mr Tie’s
convictions.
Outcome
[91]
Mr Romana’s appeals against conviction and sentence are dismissed.
[92]
Mr Tie’s appeal against conviction is dismissed.
Solicitors:
Public Defence Service, Auckland for Appellant Romana
Crown Law Office, Wellington for Respondent