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R v Ruawhare [2022] NZDC 7694 (4 May 2022)

Last Updated: 22 April 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

R v WILSON RUAWHARE [2022] NZDC 7694 [4 May 2022]

A Williams for the Defendant Crichton-Weke-Tuhimata

B Ayrey for the Defendant Tauraki

K Basire for the Defendant Whittaker C Eason for the Defendant Tipine

Judgment:

4 May 2022

RESERVED JUDGMENT OF JUDGE G M LYNCH

The charges and the application

[1] The fifteen defendants, all either members or associates of the Christchurch Tribesmen Motorcycle Gang (“the Tribesmen”) face charges in relation to the assault of five Mongrel Mob gang members outside the Christchurch District Court on 30 July 2020.1 Each defendant is also charged with participating in an organised criminal group (“POCG”).2

[2] The defendants apply for dismissal of the POCG charge under s 147 of the Criminal Procedure Act 2011.3 The application is opposed.

What happened on 30 July 2020

[3] On 30 July 2020 at 2.15 pm Elder Browne, the President of the Christchurch Tribesmen, had his first appearance in the Christchurch District Court on charges of drug offending. Seventeen of his fellow gang members or associates attended court that afternoon in support of him. Coincidentally, [name deleted – person A], a Mongrel Mob member, was also in the District Court for a scheduled court appearance.

[4] There was a confrontation of sorts between [person A] and some members of the Tribesmen outside Courtroom 8 following Mr Browne’s appearance. There is no CCTV available of this interaction, which Court security staff attended to. It seems to

1 The charges range from assault to injuring with intent to cause grievous bodily harm.

2 Crimes Act 1961, s 98A.

3 While not each defendant formally filed a s 147 application those that did not supported the applications made. Accordingly, I proceeded on the basis that all fifteen defendants seek the dismissal of the POCG charge.

be accepted that this involved some “eyeballing tension” as Mr McClenaghan for the Crown described it.

[5] What happened when the Tribesmen left the courthouse itself was captured on the external CCTV cameras. I adopt the summary of the events the Crown provided:4

• [13] The seventeen Tribesmen can be seen on CCTV footage walking through the ground floor court foyer and toward the doors onto Lichfield Street. They walked together in a large parade like fashion, grouped together.
  
• [14] Outside the Court entrance on Lichfield Street sitting on some planter boxes were five Mongrel Mob men, [victim A], [victim B], [victim C], [victim D] and [victim E]. They can be clearly seen on the external CCTV footage.
  
• [15] As the Tribesmen exited the Court building, through the main doors facing toward Lichfield Street, they then appeared to group together and then make their way out toward the road. The Mongrel Mob men can be seen reacting to this. The Tribesmen then approach the Mongrel Mob men who were either standing or seated. One of the patched Mongrel Mob members can be seen making a signal to the Tribesmen.
  
• [16] The Tribesmen then approach that Mongrel Mob member, [victim A]. They then began a frenzied and sustained assault on the five Mongrel Mob men. It was fifteen Tribesmen against five Mongrel Mob men who were clearly outnumbered.
  
• [17] The first Tribesman to commence the assault was the defendant, Ruawhare. He approached and kicked [victim A], the patched Mongrel Mob member wearing a red hoody and white hat, to the lower body. By this stage, several Tribesmen surrounded [victim A]. Ruawhare then kicked [victim A] a second time. Ruawhare then lost his balance and fell to the ground. [victim A] was then pummelled by several other defendants, Clunie and Edwards who all threw punches at [victim A]. Edwards delivered around thirteen punches to [victim A]’s head. Clunie then grabbed [victim A] by his clothing and kneed him three times to the head and then followed this up with three punches to [victim A]’s head. Another defendant, Wiley also joined in and punched [victim A] to the head. [victim A] then fell to the ground and Ruawhare kicked him to the head. Ruawhare then stomped on [victim A]’s head. Edwards also punched [victim A] on the ground and kicked him once. Another defendant, Tapine also kicked [victim A] and stomped on his head three times. Tapine also bent over and landed a punch to [victim A]’s head. At some stage during the assault [victim A] was rendered unconscious.
  

4 Crown submissions 13 May 2021. At the hearing Mr McClenaghan made some amendments to the outline of the facts, which I have incorporated.

[18] The defendants involved in the assault on [victim A] were Ruawhare, Clunie, Edwards, Wiley and Tapine. The Crown say that [victim A] took 32 blows to his head/body by way of punches, kicks, knees, and stomps.

[19] Whilst [victim A] was being attacked the defendants Olsen and Montgomery attacked another Mongrel Mob member, [victim B]. [victim B] was seated on the planter box and was wearing a red and black Swandri. Montgomery punched [victim B] around ten times to the upper body and head region. Olsen punched [victim B] twice to the head. Another defendant, Stuart punched him twice to the head and upper body. Olsen then went in hard, throwing five uppercuts and kneeing [victim B] four times to the head. He then punched him once more.

[20] The defendants involved in the assault on [victim B] were Olsen, Montgomery, and Stuart. The Crown say that [victim B] took 23 blows to his head/body by way of punches and knees.

[21] An attack was also launched against [victim C], another of the Mongrel Mob member. He is the man wearing the grey hooded top. The defendants, Wiley, Wood and Tipene grab [victim C]. Tipene and Wood then throw punches at [victim C]’s head. Brooker then king hit him. This knocks [victim C] to the ground. At some stage when on the ground another defendant, Powell kicked [victim C] to the leg and punched him to the body. Powell then also threw four more punches to [victim C]’s head. Wiley then kneed [victim C]. Stuart then stomped [victim C] when he is on the ground and then punched him with a hammer style punch six times to the head. As [victim C] gets to his feet and Edwards lands a right hook to his head. At the very end Brooker kicks him to the back.

[22] The defendants involved in the assault on [victim C] are Wiley, Wood, Tipene, Brooker, Powell, Stuart, Edwards. The Crown say that [victim C] took 26 blows to his head/body by way of punches, knees, and stomps.

[23] Whilst the attack on the other three men was occurring one of the defendants, Tauraki advanced on [victim D]. He is the patched Mongrel Mob member wearing a red cap and t-shirt. Tauraki punched [victim D] twice to the head and then kicked him. Another defendant, Crichton then punched him to head and body nine times. Tauraki then punched him again twice to the head region, and then landed eight punches and kneed him four times. Another defendant, Whittaker then threw a punch to [victim D]’s head. Another defendant, Montgomery then punched him three times and kneed him to the upper body/head region. Another defendant, Wiley punched him too. Tapine then punched him to the abdomen and kicked him. Ruawhare then kicked him to the upper body. Tapine then punched him a further three times. Olsen then kicked him once in the head and then punched him four times to the ribs whilst pulling his vest over his head. Court security had to pull Olsen off [victim D].

[24] The defendants involved in the assault of [victim D] were Tauraki, Crichton, Whittaker, Montgomery, Wiley, Tapine, Ruawhare, and

Olsen. The Crown say that [victim D] took 38 blows to his head/body by way of punches, kicks, and knees.

[25] And finally, whilst matters were progressing the defendant Olsen punched [victim E], the older male wearing a red and black shirt and sunglasses who was also seated on the planter box, twice to the head causing him to fall to the ground. Crichton ran over to [victim E] kicked and punched him. Montgomery also stomped [victim E] when he lay on the ground.

[26] The defendants involved in the assault of [victim E] were Olsen, Crichton and Montgomery. The Crown say that [victim E] took 12 blows to his head/body by way of punches, kicks and stomps.

[27] The sixteenth man [person B] came late to the incident and attempted to round house one of the men. He missed. Given his late coming to the incident and no actual assault occurring the Crown withdrew the charges against [person B]. The seventeenth man [person C] stood back at some distance and did not engage in any violence. He was not charged.

[28] The incident came to a stop by the intervention of Court security guards who tried to break it up. Following this the defendants dispersed, and the security guards then assisted the injured Mongrel Mob men.

[6] The Crown case is that Mongrel Mob members [victim A], [victim E], [victim D] and [victim B] are seriously injured, as detailed above and reflected in the charges against those defendants said to have assaulted them. For the purposes of this application, in taking the Crown case at its highest, I accept what the Crown has outlined as to the injuries sustained. A separate hearing will deal with the proposed expert medical evidence relating to the injuries suffered by some of the victims.

[7] This was an explosive fight where the Tribesmen outnumbered the Mongrel Mob victims.5 The Crown do not contend that this attack was premeditated. There is no suggestion that there were any directions or instructions to any Tribesmen member or associate before leaving, or having left, the courthouse. Accordingly, and as I will discuss later, there is spontaneity in what unfolds. The Crown’s position is that for the POCG charge, premeditation is not required and there is nothing that prevents the Crown bringing this charge even when it is a spontaneous act as the prosecution is of “an organised criminal group, not an organised criminal act.”6 As Mr McClenaghan

5 The Mongrel Mob members concerned have not made complaints and will not be called by the Crown at trial.

6 Transcript of the hearing 25 January 2022 at page 12.

observed at the hearing, there was a “shared objective and that shared objective here is Mongrel Mob men are there, I am going to attack, my mates attacking, I’m now going to attack, my other mates attacking, we’re all in it together, we’re going to smash them.”7

[8] The defence case in a nutshell is that because this happened so spontaneously, there was never any shared objective to “smash”, as the Crown put it, or otherwise harm the Mongrel Mob members.

Section 147 principles

[9] The power to dismiss a charge must be exercised with regard to the respective functions of the judge and jury.8

[10] Questions of credibility and weight must in all but exceptional cases, be determined by the jury.

[11] If I am satisfied as a matter of law that a properly directed jury would not reasonably convict the defendants on the POCG charges, I may dismiss them. If the evidence is sufficient at law, if accepted, to prove the POCG charge then I should leave the charges to the jury and not withdraw them on evidentiary grounds. That is because I am not permitted to substitute myself for the jury, and effectively usurp its function.

[12] In relation to the Court’s role in a s 147 application, the Court of Appeal observed in R v Flyger:9

• [13] ...The power to discharge an accused, accorded by s 347(3) of the Crimes Act, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interest of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury’s responsibility to decide the facts. Accordingly, a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case. The Judge’s function in these circumstances is not to attempt to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.
  

7 At page 12.

8 R v Flyger [2001] 2 NZLR 721 at [13]; Parris v Attorney-General [2003] NZCA 400; [2004] 1 NZLR 519 at [14].

[13] Subsequently, in Parris v Attorney-General, the Court of Appeal stated: 10

• [14] ...The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of the law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence.
  

The POCG charge

[14] Section 98A of the Crimes Act makes it an offence to participate in an organised criminal group:

98A Participation in organised criminal group

(1) Every person commits an offence and is liable to imprisonment for a term not exceeding 10 years who participates in an organised criminal group—

• (a) knowing that 3 or more people share any 1 or more of the objectives (the particular objective or particular objectives) described in paragraphs (a) to (d) of subsection (2) (whether or not the person himself or herself shares the particular objective or particular objectives); and
  
• (b) either knowing that his or her conduct contributes, or being reckless as to whether his or her conduct may contribute, to the occurrence of any criminal activity; and
  
• (c) either knowing that the criminal activity contributes, or being reckless as to whether the criminal activity may contribute, to achieving the particular objective or particular objectives of the organised criminal group.
  

(2) For the purposes of this Act, a group is an organised criminal group if it is a group of 3 or more people who have as their objective or one of their objectives—

• (a) obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of 4 years or more; or
  
• (b) obtaining material benefits from conduct outside New Zealand that, if it occurred in New Zealand, would constitute

the commission of offences that are punishable by imprisonment for a term of 4 years or more; or

(c) the commission of serious violent offences; or

(d) conduct outside New Zealand that, if it occurred in New Zealand, would constitute the commission of serious violent offences.

(3) A group of people is capable of being an organised criminal group for the purposes of this Act whether or not—

• (a) some of them are subordinates or employees of others; or
  
• (b) only some of the people involved in it at a particular time are involved in the planning, arrangement, or execution at that time of any particular action, activity, or transaction; or
  
• (c) its membership changes from time to time.
  

The elements of the POCG charge

[15] The essential elements of the offence are:11

• (a) participation in an organised criminal group;
  
• (b) knowledge that at least three of the people in the group share at least one of a number of specified objectives (set out in s 98A(2)(a)-(d)). Such objectives include the commission of serious violent offences, or obtaining material benefits from the commission of offences that are punishable by imprisonment for a term of four years or more;
  
• (c) either knowledge that the accused’s conduct contributes to the occurrence of criminal activity, or recklessness as to whether his or her conduct may so contribute; and
  
• (d) either knowledge that such criminal activity contributes to achieving the objectives of the organised criminal group or recklessness as to whether it so contributes.

[16] A “serious violent offence” (one of the objectives of an organised criminal group) is any offence where, most relevantly here, the conduct constituting the offence involves serious injury to a person or serious risk of serious injury to a person.12 It must also be an offence that is punishable by a period of imprisonment for a term for 7 years or more.

[17] Section 98A only requires three members to share the relevant unlawful objective.13 It follows that once it is proved that there are at least three members of the group who share a common unlawful objective as specified in s 98A(2), then any other persons who participate knowing that the group share a common unlawful objective, will have met the first two elements of s 98A whether or not they themselves share that objective.14

Discussion

Were three or more of the Tribesmen participating in an organised criminal group?

[18] A plain reading of s 98A requires the organised criminal group to exist before it can be participated in. Participating does not create the “group”, the group must be in existence and the members participate in it.

[19] The defendants (or three or more of them) are not an organised criminal group simply by virtue of the fact that they are members or associates of the Tribesmen gang. Assistance as to what constitutes an organised criminal group can be gained by s 98A(3):

• (3) A group of people is capable of being an organised criminal group for the purposes of this Act whether or not —
  • (a) some of them are subordinates or employees of others; or
    
  • (b) only some of the people involved in it at a particular time are involved in the planning, arrangement, or execution at that time of any particular action, activity, or transaction; or
    
  • (c) its membership changes from time to time.
    

12 Crimes Act 1961, s 2.

13 R v Cara [2005] 1 NZLR 823 at [163]-[164].

[20] Of particular relevance here is that subs (3)(b) specifically provides that a group of people is capable of being an organised criminal group even if only some of those people involved in it at a particular time are involved in the planning, arrangement, or execution at that time of any particular action, activity, or transaction.

[21] Why that is relevant is that it follows that at least some of the group must be involved in the “planning, arrangement, or execution” of the particular action or activity at that time.

[22] In my assessment, the Crown has become blinkered by the fact that the defendants are either members or associates of the Tribesmen and have simply overlaid the propensity of this and other gangs to get involved in criminal activity on what occurred on 30 July 2020.

[23] If the question is asked: “What planning or arrangement was made for this fight outside the Court?” – the Crown would have to accept there was none. There were no text messages or communications rallying the troops to action. Mr McClenaghan observed that such communication would be “a slam dunk”,15 but maintained that the absence of premeditation (or put another way, where there is a spontaneous act) does not prevent the Crown bringing this charge.

[24] “Planning” or an “arrangement” are plainly absent here. It is not enough for the Crown to contend that this was a plan or arrangement made up on the hoof. The CCTV evidence outside the courthouse is of a spontaneous action. It is exactly how Mr McClenaghan described it at the hearing: something that was “very fluid”, and that given the “dynamic situation” it was “hard to determine who does what first”.16

[25] If there has been an absence of “planning” or “arrangement” of the action or activity, then for the group to be capable of being an organised criminal group that only leaves the possibility that some of the group were involved in the “execution” of the “action” or “activity”.

15 Transcript of the hearing n6 at page 13.

16 At page 7.

[26] To “execute” means “to follow out, carry into effect (and intention, purpose, plan, instruction, or command).17 Further, “execution” is to be interpreted with regard to the words around it: “planning” and “arrangement”.

[27] Accordingly, the execution of an “action” or “activity” in this case the attack, must follow some form of premeditation. There must first have been a plan or an arrangement, before it is executed.

[28] It follows then that the actions of an organised criminal group must arise out of some level of planning. At the very least, it must arise out of something more than the spontaneous.

[29] In Tamati v R the defendants, members of the Mongrel Mob gang, appealed their convictions of participation in an organised criminal group.18 The offending was in the context of a long-standing dispute between two groups of Mongrel Mob members based in a gang pad in Wairoa. One of the senior members, Mr Tamati, was stripped of his gang patch but vowed to return and exact revenge. Both groups rallied their supporters and procured firearms and ammunition.

[30] Mr Tamati returned to the gang pad the following morning with around seventeen other associates. A gun fight broke out between the groups and some participants were seriously injured.

[31] Significantly, the Court of Appeal observed that the group’s objective has to be assessed prospectively, before events have unfolded, although inference as to the objective may, in appropriate cases, be drawn from subsequent events.19 In relation to the facts there, the Court of Appeal went on to observe that the Crown “had to prove beyond reasonable doubt that Mr Tamiti and the other appellants went to the house with the objective of committing an offence of serious violence punishable by seven or more years’ imprisonment.”20 The appeal hinged on a failure to make it clear from the outset what serious violent offence(s) was the groups objective.

17 “execute” OED online (3rd ed. Oxford University Press, December 2021).

18 Tamati v R [2013] NZCA 42.

19 At [28].

20 At [31].

[32] Mr McClenaghan submitted that the Crown had not fallen into the trap exposed in Tamati and had framed its case with care and that when the group started to inflict serious violence, that is when the common intention is enforced. This is the “dynamic” or “unfolding” situation that Mr McClenaghan referred to.

[33] The Crown placed significant reliance on R v Cooper.21 In that case there were three “ambushes” by Black Power gang members of Mongrel Mob members participating in a funeral procession travelling through Black Power territory. As Mr McClenaghan observed, the first ambush (the “service lane ambush”) involved some Black Power members throwing rocks at the funeral procession. The second and more serious was the “Arawa Road standoff” where three Black Power members discharged their firearms in the direction of the Mongrel Mob crowd. The final incident was the “Douglas Street ambush” where 10 – 15 Black Power members brandished sticks and bats which were discarded before anything happened because the police had arrived.

[34] When considering participation, Moore J observed:22

As the learned authors of Adams on Criminal Law observe the exact meaning to be given to “participates” in s 98(1) is open to argument. Participation and association are not synonymous. In R v Ngaheu, Keane J held that the word carried its meaning of “taking part in” or “sharing”. To “participate” in the activities of the group requires some overt conduct that will or may contribute to criminal activity which in turn will or may advance or achieve the group’s identifying objective where the participant either knows the conduct will contribute in that way or is reckless that it may do so. Generally, conduct actually advancing the interests or activities of the group or overtly appearing to advance such activities will suffice.

[35] I did not find Cooper to have the assistance the Crown contends it can. The reason for that is that it is so fact specific, and in relation to the “Arawa Road standoff”, it is exactly what this charge is about, not about bottle throwing, but involvement where, in that case, there is a clear plan to ambush set in train, firearms are present and a shared objective illustrated by three different members discharging firearms when 10 – 12 Black Power members were facing the “sea of red”.23 Further, these were of

21 R v Cooper [2017] NZHC 32757.

22 At [30].

23 At [13].

course firearms brought to a scene where the only outcome was going to be the infliction of serious violence.

[36] The decision in Cooper does not refer to Tamati. I place weight on the Court of Appeal’s statement in Tamati that the objective must have arisen before events have unfolded. In my assessment, when the Court of Appeal said that an inference as to the objective can be drawn from subsequent events, it did not mean that here the objective can be drawn during those events. However, even if it did mean that, there was simply insufficient time to do so in such an explosive or spontaneous episode.

[37] A plan to cause serious violence to the victims is required. In R v Moananui the defendants, all Mongrel Mob members or associates, sought out and attacked the two victims in retaliation for an aggravated robbery committed against a person associated with the gang, but importantly, a robbery that had not been sanctioned by the gang.24 Cull J held that the Crown needed to prove that the defendants were all part of a shared plan to commit serious violence.25 Accordingly, planning and premeditation are required, but importantly, to commit “serious violence”.

[38] As Ms Hollingworth in particular emphasised, how the defendants presented as they exited the court building also needs to be considered. The initial CCTV footage and the stills or screenshots from it, show the Tribesmen members and associates talking amongst themselves with some appear to be laughing as they head for their vehicles which are parked in the direct path beyond the Mongrel Mob group. As the defence contend, what is seen as they are about to leave and when they do leave the building is inconsistent with a group preparing for a fight. The Crown’s description of the defendants walking together in “a large parade like fashion” does not hold sway.26 “Parade” is a purposeful word, in this case intended to signal organisation. The Tribesmen, as the CCTV footage shows, “paraded” out of the building no more than a visiting school group would.

[39] However, more importantly, what the Crown has overlooked is that a mere 16 seconds elapses between the first Tribesmen member or associate exiting the court building and the first act of assault. The fight itself lasts 30 seconds from the first to last act of assault.27 Of course, some defendants are only actively engaged in the assaults for a portion of that.

[40] Whether or not Mr [victim A] by the hand gesture or holding up his patch provided the spark for what happened, as the defence contend, does not matter. In a matter of mere seconds, the fight erupts. There is no plan, no meeting of the minds to cause serious violence. It would be lazy reasoning to invite a jury to draw an inference that just because these are gang members and where there has been a possibility of some tension between the two groups, that every time they have a fight there is a shared plan to ensure serious violence is caused.

[41] There has been no “planning, arrangement or execution” of an “action” or “activity”. The time that this is considered is “at the time” of the action or activity.

[42] The Crown accepts that what occurred is “fluid” and “dynamic”. However, it is much more than that, it is a fight that erupts spontaneously with no plan at all, unlike in Cooper where the underlying plan all along was to ambush the opposing gang travelling through their territory and where with the presence of firearms serious violence was in contemplation.

[43] There is simply no evidence that three or more of these defendants shared a common objective to undertake serious violence. That serious violence occurred cannot in the spontaneity of this incident, properly be used to infer that was the objective. In this case it would be to invite impermissible reasoning.

[44] Accordingly, there has been no participation in an organised criminal group here.

27 The timings are from the CCTV footage shown at the hearing.

Sharing in the common objective

[45] The Crown points to Mr Ruawhare, the Tribesmen “Sergeant in Arms”, as the instigator of the attack and that in terms of group structure or hierarchy, the others fall into line and join the attack once he moves. At least three of the group need to share the common objective of committing serious violence. However, the only thing certain here is that three or more Tribesmen decided to fight the Mongrel Mob members. Even if to fight was at that time a shared objective, or a common intention, there is nothing as I have observed to show a shared objective to commit serious violent offences. Further, even accepting that there had been simmering gang tensions in recent (or as the defence would say, not so recent) years as the proposed gang expert evidence discusses, and the “eye-balling” that day outside Courtroom 8, it is too much of a leap to infer, without something much more, a standing common intention that whenever the Tribesmen see the Mongrel Mob they will fight them to the extent of causing serious violence.

[46] Accordingly, it would be unsafe to permit a jury to draw an inference from the proposed expert gang evidence that one of the objectives of the Tribesmen is to cause serious violence (a s 98A(2) included objective) every time they are together and meet such a group as the Mongrel Mob. There is no evidence that on 30 July 2020 outside the Christchurch District Court any of the defendants held that objective specifically.

[47] As the Court of Appeal in Tamati observed: “a group’s objective has to be assessed prospectively, before events have unfolded”.28 As the defence submitted, ill- will between rival gangs is not enough, and the events here were so spontaneous that they did not permit the formation of a shared objective to commit a serious violence offence. A common objective to fight the Mongrel Mob (if that was the case) is not the same as a shared objective to commit a serious violence offence.

[48] The Crown submissions were against the backdrop of the CCTV evidence of what actually happened. The CCTV evidence at the hearing was carefully reviewed by slowing down the action. It is best watched in real time. Slowing down the CCTV here is akin to the TMO in rugby matches watching interminable video replays trying

28 Tamati v R, above n 18 at [28].

to find a reason not to award a try. It is not helpful. It is in real time that assessments as to what was the objective need to be determined. That real time is the 16 seconds from the first Tribesman exiting the court building to the first act of assault and an explosive fight of only 30 seconds duration.

[49] Given my assessment of the first two elements of what needs to be proved for a POCG charge I do not need to move on and consider the remainder.

Conclusion

[50] In my assessment s 98A is not the correct charge for the spontaneous fight which the CCTV footage shows this was.

[51] Ms Hollingworth observed that she had been unable to locate any cases where a POCG charge had been established for a “spur of the moment” or “spontaneous” fight, even between gangs. Similarly, I am not aware of any such cases. Indeed, each case I have reviewed has involved at the very least some level of pre-planning of objective, even if evidence of that was only inferred from a defendant’s conduct. However, as I have discussed, the explosive or spontaneous way this incident occurred, commencing in mere seconds after the exit from the court building of the first Tribesman or associate, with no preliminary call to arms within the exiting group, and given how quickly the fight began and ended (30 seconds), means it is unsafe to permit a jury to infer that within seconds the prerequisite s 98A(2) objective was acquired.

[52] Mr McClenaghan accepted that the POCG charge complicates the trial but maintained the charge is available. I understood from what was said at the hearing that the Crown would consider not proceeding with the POCG charge if a defendant or defendants pleaded guilty to the grievous bodily harm relating to Mr [victim A]. I may be putting that a little simplistically as no doubt there are other charges relating to the injury of other Mongrel Mob members that the Crown may wish to see someone take responsibility for. However, the point is that the Crown are prepared to move on this charge.

[53] Often POCG charges are not proceeded with where the accompanying violence charges are admitted. I am not suggesting that the Crown have tactically used the POCG charge in that way here, but it draws attention away from what is the real issue, and that is the violence inflicted on the Mongrel Mob victims by the Tribesmen in an uneven fight.

[54] The POCG charge complicates what is already a complicated trial, however in my assessment the charge fails at the first hurdle because a jury properly directed could not safely find that the defendants participated in an organised criminal group. Further, there is an absence of evidence establishing that at least three of the Tribesmen at the material time shared an objective to commit a serious violent offence.

Decision

[55] This is one of those rare cases where the Court is required to intervene. In my assessment this is a clear-cut case where the defendants will be acquitted of the POCG charge. This is simply the wrong set of facts to advance a POCG charge on. It would be unsafe to leave the POCG charge to the jury. The POCG charge that each defendant faces will be dismissed.

Judge GM Lynch

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 04/05/2022