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R v Kaienua [2019] NZHC 1794 (29 July 2019)

Last Updated: 15 September 2020

REASONS FOR VERDICTS OF GAULT J

Solicitors:

Mr B Dickey and Mr L Fraser, Meredith Connell, Office of the Crown Solicitor, Auckland Mr S Tait and Mr J Hudson, Barristers, Auckland

R v KAIENUA [2019] NZHC 1794 [29 July 2019]

• [1] Mr Siddhartha Patel and Mrs Gita Patel were stabbed in their family dairy in Grey Lynn, Auckland.

• [2] Soon after 7:00 pm on 19 June 2018, a 16-year-old youth (Y¹) entered the dairy, waited as other customers came and went, then moved behind the counter and began stabbing Mr Patel. His mother, Mrs Patel, was in her kitchen, out the back of the store. She saw the man close to her son behind the counter and came running. Mrs Patel was also stabbed.

• [3] Mr Patel was stabbed in the front and side of his chest, and received other lacerations to his shoulder, head and hand. The stab wounds injured his hemi-diaphragm muscle between his chest cavity and abdomen, perforated part of his large intestine and lacerated his sternum and caused a collapsed lung. He required surgery twice and was in hospital for nearly six weeks. Mrs Patel was stabbed in the abdomen and the wound extended deeply into the edge of her rib cage.

• [4] The Crown alleges Mr Kaienua and Y planned to carry out a robbery of the dairy with Y going in armed with a knife and Mr Kaienua waiting outside as a look-out. Mr Kaienua is charged, as a party, with assault (grievous bodily harm) with intent to rob and aggravated wounding. Y is not before this Court but the Crown must prove the offences to which Mr Kaienua is alleged to be a party. The defence does not dispute Y’s offending. The issues in Mr Kaienua’s trial relate to his knowledge, intention and actions.

• [5] On the first morning before commencement of Mr Kaienua’s trial, I granted him leave to withdraw his election to be tried by jury. The trial proceeded as a judge alone trial and I reserved my decision.

Verdicts

• [6] At a hearing today, I returned the following verdicts:

(a) On the charge of assault with intent to rob, Mr Kaienua is found guilty.

¹ The youth has name suppression.

(b) On the charge of aggravated wounding, Mr Kaienua is found guilty.

• [7] I am required to give reasons for my verdicts.² These are my reasons.

Elements of each charge

Assault with intent to rob

• [8] Section 236(1)(a) of the Crimes Act 1961 provides:

Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to rob any person,—

(a) causes grievous bodily harm to that person or any other person; or

...

• [9] To satisfy s 236(1)(a), the Crown must prove beyond reasonable doubt that:

(a) Y intentionally caused grievous bodily harm to Mr Patel; and

(b) he did so with the intent to rob Mr Patel.

Aggravated wounding

• [10] Section 191(1)(c) of the Crimes Act 1961 provides:

Every one is liable to imprisonment for a term not exceeding 14 years who with intent—

...

(c) To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any imprisonable offence—

wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance.

2. Criminal Procedure Act 2011, s106(2). See Sena v New Zealand Police [2019] NZSC 55 at [17]- [18], citing R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA) at 237-238; and R v Eide [2004] NZCA 215; [2005] 2 NZLR 504 (CA) at [20]- [21].

• [11] To satisfy s 191(1)(c), the Crown must prove beyond reasonable doubt that:

(a) Y wounded Mrs Patel; and

(b) he did so with the intent to avoid arrest or facilitate his flight upon the commission of the imprisonable offence of assault with intent to rob.

Party liability

• [12] Section 66 of the Crimes Act 1961 provides:

66 Parties to offences

(1) Every one is a party to and guilty of an offence who—

(a) Actually commits the offence; or

(b) Does or omits an act for the purpose of aiding any person to commit the offence; or

(c) Abets any person in the commission of the offence; or

(d) Incites, counsels, or procures any person to commit the offence.

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

• [13] The Crown relies on both s 66(1) and (2). Under s 66(1), it says Mr Kaienua knowingly and intentionally aided, abetted or incited – meaning organised, helped or encouraged – Y to commit the offences.³

• [14] The Supreme Court in Ahsin v R explained the elements the Crown must prove beyond reasonable doubt to convict a defendant under s 66(1):⁴

For the conviction of a person as a party to an offence under s 66(1)(b), proof is required of an action by that person that aids another to commit the offence. Such action must be deliberately taken, with the intention that the conduct will aid the principal offender in his or her criminal actions, the essential aspects

³ Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [82]- [83].

⁴ At [82].

of which must be known to the assisting person. What is essential includes both physical and mental aspects of that person’s conduct, that is, the actions to be taken and the intention with which they are to be done. Section 66(1)(c) and (d) have the same requirements, but with reference to abetting or inciting, and counselling or procuring, rather than to aiding. A particular feature of s 66(1) is that it concerns conduct providing assistance or encouragement that may be complete prior to commission of the crime for which it is provided.

• [15] Under s 66(2), the Crown says that it was a probable consequence of carrying out a plan to rob a dairy with a knife as a weapon, that the knife might be used, and that those inside the dairy might get stabbed. In this context, probable consequence means a real possibility or something that could well happen.⁵

• [16] The Supreme Court in Ahsin described what the Crown must prove under s 66(2):⁶

(a) the offence to which the defendant is alleged to be a party was committed by a principal offender; and

(b) there was a shared understanding or agreement to carry out something that was unlawful; and

(c) the person accused of being a party to that agreement had all agreed to help each other and participate to achieve their common unlawful goal; and

(d) the offence was committed by the principal in the course of pursuing the common purpose; and

(e) the defendant intended that the offence that eventuated be committed, or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.

⁵ Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [100]- [102]; and R v Gush [1980] 2 NZLR

92 (CA) at 94 per Richmond P.

⁶ At [102].

Beyond reasonable doubt

• [17] The Crown must prove guilt beyond reasonable doubt. This is a very high standard, which the Crown will meet only if I am sure Mr Kaienua is guilty. A reasonable doubt is an honest and reasonable uncertainty after I have given careful and impartial consideration to all of the evidence.⁷

• [18] Where the charge has several essential elements, as is the case here, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.⁸

Issues

• [19] The issues in this case concern what Mr Kaienua knew and what he did. In particular, whether Mr Kaienua:

(a) was involved in planning the robbery;

(b) knew that Y took a knife;

(c) acted as look-out.

Unchallenged facts

• [20] I am satisfied that the Crown’s evidence establishes the following facts, which were not challenged by the defence. Much of the Crown case is based on CCTV footage.

• [21] Mr Kaienua had spent the day with Y, who was the younger half-brother of Mr Kaienua’s partner. Mr Kaienua was aged 27; Y was 16. They were together in Panmure in the morning and then in Auckland City, where they were joined by

7. R v Wanhalla [2006] NZCA 229; [2007] 2 NZLR 573 (CA); and R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [30].

⁸ R v Puttick (1985) 1 CRNZ 644 (CA) at 647; Thomas v R [1972] NZLR 34 (CA); and Milner v R

[2014] NZCA 366 at [15].

Mr Kaienua’s associate (Mr A⁹), and then also by Mr Heta, Y’s older brother. CCTV shows Mr Kaienua, Y and Mr A went into Britomart station, met Mr Heta there at 1:40pm and the four exited the station and walked towards Queen Street. They were next seen in Grey Lynn an hour later purchasing two boxes of ready mix liquor – Vodka Cruisers. Y stayed outside the liquor store.

• [22] They spent part of the afternoon at a nearby park drinking and part of it at Mr A’s address in Grey Lynn drinking and playing PlayStation. Mr A had a single room including a kitchenette in a lodge boarding house with communal bathroom facilities. They also went to get takeaways.

• [23] During most of the day Mr Kaienua was wearing beige pants, a light grey top over a black one, black shoes and a cap or beanie. Y was wearing light grey Adidas track pants, a black top and Nike slides.

• [24] At approximately 7:05 pm Mr Kaienua and Y were seen on CCTV arriving at the Grey Lynn shops. Mr Kaienua was now wearing black pants, black thermal top, black shoes, a NY black cap with a lighter peak and a grey scarf. Y was wearing black shoes rather than slides, black shorts (over the knee), a black t-shirt and a white cap. He had a black backpack on his back.

• [25] Mr Kaienua and Y walked along Great North Road opposite the dairy and paused across the road for just under two minutes. They then crossed the road towards the dairy but walked past it heading back along Great North Road. They returned two minutes later. Y entered the dairy at approximately 7:10 pm.

• [26] The CCTV inside the dairy shows that Y waited in the dairy for approximately two minutes while two other customers came and went, and as soon as the second customer completed his purchase and left the dairy, about 7:12 pm, Y moved behind the counter, pulled out a knife and attacked Mr Patel. Y initially pushed or fended Mr Patel with his left hand but quickly escalated to thrusting the knife with his right to stab him. The CCTV also shows Y trying to pull the cash register drawer open

9. A Crown witness to whom I granted name suppression under s 202(1)(a) of the Criminal Procedure Act 2011.

during the attack. Mrs Patel was in the kitchen, out the back of the store. A family friend was also there. Mrs Patel saw a man close to her son behind the counter and came running. She fell as she entered the back of the dairy and cut her forehead. The family friend had heard Mr Patel calling for help and also came into the dairy. Mrs Patel ran and grabbed Y who was still struggling with Mr Patel. Y also stabbed Mrs Patel and pushed her over.¹⁰ Y then ran off. The Patel’s family friend ran out of the dairy after Y, but then stopped and returned into the dairy to assist.

• [27] Mr Kaienua did not follow Y into the dairy. There was also CCTV outside the dairy from a camera next door. I am satisfied that the CCTV footage of inside and outside the dairy was matched contemporaneously. The CCTV shows that Mr Kaienua kept walking past the dairy looking down at his phone and stopped near two rubbish bins fixed on the footpath a few metres past the dairy entrance. He put his phone in his pocket and looked around before leaning back on one of the bins. He stood up and looked around as a man came off the bus and walked to the dairy (the second customer referred to above). Mr Kaienua then lent forward over the bin. After just over half a minute, he turned around again and lent back on the bin facing the other direction. Soon after, he took his phone out again. The contemporaneous CCTV shows that Mr Kaienua was looking at his phone when Y’s attack started. Mr Kaienua looked up briefly when a car pulled in to park outside the dairy but then looked back down at his phone.

• [28] At approximately 7:13 pm Y ran out of the dairy still holding the knife, looked and gestured left towards Mr Kaienua and ran off to the right along the footpath before crossing Great North Road and walking down Tuarangi Road. When Y ran out, Mr Kaienua looked up from his phone but did not move except to slightly reposition one foot. After two to three seconds, he straightened up from his position leaning on the bin for a second or two and then lent back on the bin as the Patel’s family friend ran out after Y. Mr Kaienua stayed leaning there for another five seconds, until the Patel’s family friend went back into the dairy, before straightening up again and walking off across Great North Road – not directly following Y along that side of the

10. Mrs Patel also injured her shoulder. It is not clear whether this occurred when she fell running in or when Y pushed her over - but nothing turns on this.

road. Mr Kaienua was seen on the CCTV on the other side of the road walking back towards the corner and down Tuarangi Road looking at his phone.

• [29] The second customer who had left the dairy just before the attack gave evidence that he heard a cry for help. He glanced around and saw a struggle so ran into the bottle store next to the dairy and asked for a phone. He walked back into the dairy and, as he did so, Y ran out past him with a knife. He saw Y cross the road and walk down Tuarangi Road. He also saw Mr Kaienua wander off casually.

• [30] A witness from the bottle store next door said he saw the guy go past in front of him – in between running and walking – with the knife in his right hand full of blood. Y had cut himself during the attack when his hand slipped on the knife. The Patel’s family friend said that after Y left quickly he was walking casually and turned to look back once a couple of shops along to the right.

• [31] At 7:13:54 pm Mr Kaienua sent a one-word text to Mr A saying “Now”.¹¹

• [32] At 7:27 pm Mr Heta walked up to the Grey Lynn shops, also looking at his phone.

• [33] The police followed a blood trail down Tuarangi Road and recovered a knife with a red handle and a backpack. The blood trail then led back on Great North Road to Mr A’s address where there was also blood. No-one was in Mr A’s room. The police found there a kitchen starter set including a set of knives with red handles matching the knife recovered on Tuarangi Road. The other two knives still had paper blade protector sheaths on them, and a third protector sheath was found on the bed. Clothes were also found, including a black t-shirt, which appeared to have blood on it, a black NY cap and a grey scarf. There were a number of empty Vodka Cruiser cans in the sink.

• [34] The next morning police located Mr A and Mr Kaienua leaving Mr Kaienua’s partner’s place. Mr A was arrested but the police did not suspect Mr Kaienua at that

¹¹ Mobile phone data, including two phones attributed to Mr Kaienua, was admitted by consent.

time. Y was also arrested there that morning. He had a bad cut on his right hand. Later that day Police found Y’s white cap also discarded along Tuarangi Road.

ESR evidence

• [35] ESR found a blood sample from the back edge of the knife corresponded to Y’s reference DNA profile. The agreed ESR evidence was that the analysis of the DNA evidence provides extremely strong scientific support for the proposition that the DNA of Y was recovered from the back edge of the knife. It is at least 300,000 million times more likely that the DNA originated from Y than a random member of the public. DNA from at least two people was detected on each blood stain sample from other parts of the knife. A DNA profile was identified that corresponded to Y’s reference DNA profile on each of the other samples from the knife. A statistical analysis of the likelihood that the DNA originated from Y was not completed for these samples but the forensic scientist indicated that a similar statistic would be expected.

• [36] A DNA profile that corresponded to Y’s reference DNA profile was identified on the blood stain sample from the floor of the dairy and from the footpath outside. A statistical analysis of the likelihood that the DNA originated from Y was not completed for these samples but the forensic scientist indicated that a similar statistic would be expected.

• [37] A DNA profile that corresponded to Y’s reference DNA profile was identified on the two blood stain samples from the black T-shirt located at Mr A’s address. A statistical analysis of the likelihood that the DNA originated from Y was not completed but the forensic scientist indicated that a similar statistic would be expected.

• [38] Y’s palm print and a fingerprint were also identified on the ice cream freezer in the dairy.

Mr A’s evidence

• [39] Mr A gave evidence that in his room he heard Mr Kaienua and Y talking about robbing a dairy to get money for something, alcohol or some other things. Mr A said he told them not to and they were just being idiots. The other three went outside for a

smoke. Mr Heta came back but the other two did not until 15-20 minutes later. Mr Kaienua came back first. He was a bit panicky, on edge, and said they needed to find Y. They went to look for him. When Mr A came back to his room not long after, Y was in the room. Y had cut himself. He said he had done it, stabbed him. They went out again to find Mr Heta. When they came back, there was some argument between Mr Heta and Y about what Y had done. Mr Kaienua was in the middle trying to stop it. Y said he had stabbed someone at the dairy and we had to try and find something to fix his hand. They then left and went to Mr Kaienua’s partner’s house.

• [40] It was put to Mr A in cross-examination that he was lying, but he maintained what he had heard. He was asked about statements he made in police interviews.

(a) On 20 June 2018, he was asked if anyone discussed doing the robbery and he said “Not that I remember. I know [Y] can be very spontaneous” and “seemed impulsive last night.”

(b) On 21 June 2018 Mr A told police Y had come back and said he robbed the dairy and stabbed someone. He was asked did he know if the robbery was planned and he said: “No, I didn’t. If they had planned it and I knew about it, I would’ve told them to get fucked because it’s stupid and it’s close to my house. I hate that sort of thing.” His explanation in cross-examination (for not mentioning the plan in that statement) was “the more you think about things the more things come back to your mind. For me, when I process things it takes me a little bit of time”. But he said his mental health condition (paranoid schizophrenia with anxiety and borderline personality disorder) did not affect his memory.

(c) On 13 November 2018 Mr A was asked about his 21 June 2018 statement and said: “I know that they were discussing doing it. But I didn’t know that they took a knife or anything and I told them not to do it. By “doing it” I mean a robbery.” In that interview Mr A was asked about the “Now” text. The police thought he may have been involved in the robbery. It was suggested in cross-examination that he told police

about the plan between Mr Kaienua and Y to rob the dairy because the police made him aware he may be charged, which Mr A denied.

(d) On 16 May 2019 he said: “I heard [Mr Kaienua and Y] discussing doing a robbery. I told [Mr Kaienua and Y] not to do it. I did not help [Mr Kaienua and Y] to plan the robbery. [Mr Kaienua and Y] were talking about doing a robbery because they wanted some money. They wanted money to buy alcohol or something. I can't remember the exact words [Mr Kaienua and Y] used but they were saying something like “We should rob the dairy, it’ll be easy...” Mr A confirmed that statement in his evidence.

• [41] Mr A agreed that before the incident he did not hear any discussion about a knife or see anyone with the knife. Nor did he refer to any discussion about how the robbery would be executed.

Mr Kaienua’s police interview

• [42] Mr Kaienua was arrested at his partner’s house on the evening of 25 June 2018. A police DVD interview was conducted after arrest that night. The arresting officer recorded that he asked Mr Kaienua if he had a cell phone and Mr Kaienua said it was not at the house. In fact, one of the cellphones seized at the house was his.

• [43] In relation to the evening of 19 June 2018, Mr Kaienua said that at Mr A’s house they started having dramas because Y had cut his bracelet off and Mr Kaienua and Mr Heta were trying to get him to hand himself in. There was a dispute and Y wanted to go for a walk so Mr Kaienua followed him up to the Grey Lynn shops. They were just walking around, they crossed the street, turned around and as they were walking back Y went into the dairy, Mr Kaienua stayed outside and played on Facebook on his phone. Y came running out with the shopkeeper. Mr Kaienua knew there was something wrong so he did not run, he just carried on playing on Facebook and walking down towards Mr A’s house. Mr Kaienua, Mr A and Heta all went outside looking for Y. Y came back, followed by Mr Heta. When Mr Kaienua saw Y, he asked him what was going on. He saw Y’s hand. Y told them that he cut himself

and had done an aggravated robbery. They were freaked out and arranged an Uber back to Mr Kaienua’s partner’s house.

• [44] When asked why he got changed before going out, Mr Kaienua said that the Donald Duck jersey he was wearing got dirty with a big stain so he took it off. He had his thermal under it. He took his beanie off and put a hat on just to put different clothes on. He said he changes all the time. When asked why he left his scarf at Mr A’s, he said he left everything there. But he also acknowledged that was after Y had said he just did an aggravated robbery. Then he said he leaves stuff wherever he goes. He also said he had the scarf on his bag so he would not forget it and Mr A must have taken it off.

• [45] Mr Kaienua was also asked why they sat across the road for quite some time staring across at the dairy. Mr Kaienua said they were not staring anywhere, they were sitting and talking. The detective put it to him they were ‘casing it out’ and planning, which Mr Kaienua denied. He said it all happened on the spur of the moment and Y did not discuss it with him at all. He said he did not go into the dairy because he just wanted to play on his phone. When Y ran out of the dairy, Mr Kaienua did not run after him: “I just carried on like nothing happened ‘cos I didn’t think anything of it.” He said it did not seem as serious until he got back. Mr Kaienua acknowledged that Y waved at him as he ran out of the dairy and then he saw the other man run out. He said “I’m, like, looking around and I’m like what the fuck?”.

• [46] In relation to the plan to rob the dairy for money to buy alcohol, Mr Kaienua said: “I don’t need no chump-arse change from some dairy. You can look at my records, I’ve got over 60,000, so I don’t need to go and rob a dairy”.

• [47] Mr Kaienua was asked why he did not hand himself in. He acknowledged that he knew police were looking for him. He said he was trying to arrange a lawyer. The Crown accepts he was trying to arrange a lawyer but only several days after the incident. He also said it was “scary”. The Crown submits that this is circumstantial evidence, which together with Mr Kaienua’s other conduct after the incident (discarding clothing and contact with other suspects indicating forensic awareness), has a tendency to suggest guilt. The defence accept this part of the interview is

admissible but submit it should be given little weight and that I should not assume it indicates guilt.

Mr Kaienua’s evidence

• [48] Mr Kaienua gave evidence. He said that on 19 June 2018 they drank alcohol and smoked drugs at Mr A’s place and at the park. He said he paid for the alcohol. He was getting paid about $345-$430 per week for scaffolding and painting, plus he had $60,000. This was in his father’s account, but he only needed to ask his father to access it. In cross-examination, it was put to him that he could not access that money via ATM. He said he could have called his father that evening and got $10,000 or

$15,000, whatever he wanted. He denied he was short of money. He could not recall the internet loan card found in his wallet when he was arrested. He said a Dollar Dealers pawn shop card was because he pawns stuff he does not need, to upgrade.

• [49] He said he and Y got wet at the park, falling in a puddle balancing on rocks by an uprooted tree. Later, he said he changed his clothes three or four times that day, that he always changes his clothes. In cross-examination, he was asked about his police interview where he said he changed because of the stain on his Donald Duck jersey. He said both statements were true.

• [50] Mr Kaienua said there was no talk about planning to rob a dairy to get some money for alcohol. He said he paid for everything, and he has a lot of money. He said he still had $50,000. In cash that night he had roughly $280.

• [51] Mr Kaienua said Y had taken his bracelet off and there was a discussion at Mr A’s place because Mr Kaienua and Mr Heta wanted Y to turn himself in. Y fought Mr Heta; Mr Kaienua stopped it and Y ran off. Mr Kaienua ran after him. Mr Kaienua found Y and they kept walking to Grey Lynn. They just walked around and talked. He tried to get Y to come back to Mr A’s place. He said when they were across the other side of the road, they were not casing the store out. He said:

I was trying to get him to hand himself in and I was having a conversation with him and I had managed to get him to pretty much come back with me to [Mr A]’s house and as we were on our way back he did what he did.

• [52] Mr Kaienua was asked when Y decided he was going to the dairy. Mr Kaienua answered:

Pretty much right as we were crossing the road. He just said: “Bruvs, hold up, I'm just gonna go in the dairy,” and I said, “Okay, I'm just gonna stay outside and play on my phone.”

• [53] Later, when Mr Kaienua was being asked about walking past the dairy and turning around and backtracking, he said:

Yeah, ‘cos – yes that’s right because he stopped me and he said, “Bruvs hold up. I'm going into the store.” And I said, “Yeah, sweet as, I'm gonna play on my phone.”

• [54] Mr Kaienua said he did not know Y had a knife.

• [55] When asked what he was doing standing by the bins outside the dairy, Mr Kaienua said: “First of all I didn't know he was up to no good and I was intoxicated and playing on my phone. I had been the whole day.” Mr Kaienua said he was not a lookout. He also said he leant on the bin because he was extremely intoxicated. He said he was aware Y was up to no good when he ran out of the dairy and the shopkeeper followed him. But he did not see the knife.

• [56] Mr Kaienua said he did not go into the dairy to check what had happened because he was scared.

• [57] Mr Kaienua said he sent the text “Now” to Mr A from Tuarangi St because Mr A told him to text when he was on the way back when he had found Y. The Crown put to him that he sent it while he was at the bins. The text was sent at 7:13:54 pm. The CCTV footage outside the dairy indicates that Mr Kaienua left the bins at 7:13 pm. The police evidence was that this CCTV footage was accurate to the minute but not more precise. The time on the CCTV cameras from the ANZ and Unichem was accurate and showed Mr Kaienua walking past at 713 pm, so I find that he would have been on Tuarangi Road by the time he sent that text as he claimed. The Crown also put to him that if Mr A told him to text when he was on the way back with Y, he would have texted before they backtracked to the dairy. Mr Kaienua’s answer was that he

didn’t send the text until he landed on Tuarangi because that is what his instructions were from Mr A.

• [58] When he got back to Mr A’s place he saw the injury to Y’s hand and blood on the walls. There was perhaps confusion about whether he saw this when first back – given he said that Y was not yet back – or a bit later after Y had returned.

• [59] Around the same time as the incident, another half-sister of Y texted Mr Kaienua about his Facebook messages. At 7:01 pm she texted “I just read yhuur Facebook message lols ?????” She then texted Mr Kaienua three times, at 7:19 pm, 7:25 pm and 7:27 pm, telling him to delete Facebook messages. Mr Kaienua explained the texts were because he was receiving duplicate messages (via text and Facebook). The Crown put to him that was not true, there was something linking him to the robbery, which he denied. It was also put to him that he misled the police officer about the whereabouts of his phone when he was arrested. He then said the half-sister wanted the messages deleted because his partner did not like him talking to her.

• [60] Mr Kaienua sent another girlfriend a text soon after 9:30 pm:

“Well we ended up in a big fight my mate got stabbed and cut his hand and yeah we all got involved in a fight lol cops everywhere and helicopters”.

• [61] Mr Kaienua said he did not recall sending that message, he was highly intoxicated at that point. He also said: “Okay, what I mean by my friend being stabbed is his whole hand was cut open and the fighting thing was with him and [Mr Heta].” He said he did not know at the time that Y had cut his hand whilst trying to stab somebody else.

• [62] Mr Kaienua’s series of texts to the girlfriend continued:

It was out the gate like hard out ????

Naw well I try babe if my mates need a hand then I’m gona help straight up

...

• [63] Mr Kaienua said this meant that when Y and Heta were scuffling, he jumped in to separate them; it did not mean helping rob the dairy.
• [64] In cross-examination, Mr Kaienua said his texts were saying that with the stabbing, Y’s hand had been cut open, and that he was highly intoxicated. Then he said he sent this while on Tuarangi Road at the top when he was looking for A. He then acknowledged that he could not recall where he sent it from. He cannot have been on Tuarangi Road as these texts were over two hours later. Mr Kaienua accepted the texts (though embellished) related to what happened at the dairy. But he then said that “It was out the gate like hard out” meant that Y’s hand was so badly damaged, not the violence which occurred in the dairy. He denied that he embellished the story and was showing off to his girlfriend. He maintained that “if my mates need a hand then I’m gona help straight up” referred to the fight between Y and Mr Heta, not the stabbing, despite it being put to him that he would not have left Y alone to do a robbery.

• [65] Mr Kaienua’s explanations for these texts were inconsistent and not persuasive. I consider he was referring to Y’s attack at the dairy. He was clearly exaggerating and likely showing off. This says something about his attitude to violence, but I do not consider these texts really add to whether he was party to the offences. In this respect, and in relation to Mr Kaienua’s denial of involvement more generally, I have regard to the warning about the weight given to lies,¹² and leaving any rejected evidence to one side and looking at the rest of the evidence before convicting. Some of Mr Kaienua’s evidence was straightforward.

• [66] Mr Kaienua was sending these texts after he knew that Y had stabbed a shopkeeper. Mr Kaienua said he was under the influence of alcohol and drugs. The texts do not indicate any concern about the shopkeeper. He also said he was troubled but scared. There is no indication of that. He sent many more texts that night which indicate indifference. For example, at 7:36 pm “I mm so blody bord”. Later that evening, Mr Kaienua sends many romantic texts to the other girlfriend. But I am cautious that indifference does not necessarily mean involvement.

• [67] Mr Kaienua said the text from Mr A to him the next morning saying “Lay low. Low as fuck...” was not because he was involved in the attempted robbery but because

¹² Evidence Act 2006, s 124(3) and (4).

he had been released from prison with six months’ release conditions and was not allowed to be present where he was.

• [68] That afternoon Mr Heta texted Mr Kaienua to say that Y had confessed. Mr Kaienua replied “So he contest to all of it?”, which he accepted meant confessed. Mr Kaienua then called Mr Heta for 13 minutes and 31 seconds. He denied that was because he was worried Y had implicated him in the robbery. He said the police had spoken to him that morning as he left his partner’s address and let him go. But I note that was before the police had spoken to Y.

• [69] He said his text to his partner on 23 June 2018 saying “we both need burnt phones” was because he wanted to get a lawyer before he was present before a police officer.

• [70] When asked why he hid from police, Mr Kaienua said he wanted to seek legal advice because he knew they would put him straight into prison. When asked why he was hiding in the wardrobe when the police arrested him, he said he was scared.

Mr Heta’s evidence

• [71] Mr Heta was ultimately called as a defence witness. He said that his sister contacted him to say that Y had taken his bracelet off and asked him to help look for him. He saw on Facebook that Y was at McDonald’s Britomart so he headed there. He said he got off the train at Britomart and was heading towards McDonald’s when he saw Mr A. Then Y called out. The mobile phone data and CCTV indicate that they arranged to meet. Mr Heta was trying to arrange money for a box before they met.

• [72] He said he tried to convince Y to come home to hand himself in. But he needed to play him at his own game. They purchased some alcohol. At Mr A’s, he said he heard nothing about a robbery. Nor did he see the red-handled knife. He said he tried to convince Y to go back home. They had a conflict and almost a fight. Mr Kaienua told them to calm down. Mr Heta went to the bathroom for 5-10 minutes and when he came back, Mr Kaienua and Y had gone. Y had taken Mr Heta’s shoes. In cross- examination Mr Heta said Mr A told him Y took off pretty angry and Mr Kaienua went after him to calm him down. It was put to him that he did not mention this to police

when interviewed on 20 June 2018. He answered that he did say that to police and not everything was written down.

• [73] He said he went up the road to look for Y and the police spoke to him asking about two males running down in black, saying something about a robbery. He denied that he went up after Y and Mr Kaienua had come back to have a look at the dairy.

• [74] He said he texted Mr A and asked if Y had returned. Mr A said yes so Mr Heta went back to Mr A’s place. He saw Y’s “big cut”. Mr Heta asked Y how he got it and Y replied that he fell over and landed on a piece of glass.

• [75] In cross-examination Mr Heta was asked why he was communicating with Mr Kaienua the day after about Y’s confession. Mr Heta said:

I personally myself wanted to know what was actually going on. Now at the time I didn't know what was going on. I only heard that my brother had tripped over, fell over on a piece of glass. I didn't realise that he actually done what he did. That’s not like my brother to do something like that.

• [76] Even when told that Mr Kaienua had given evidence that Y had told them that he'd stabbed a guy in the dairy, Mr Heta maintained that Y only told him that he fell over and hurt his hand on a piece of glass. Mr Heta said Y must have told them, but he was not paying attention. He also said he knew Y was lying to him. Mr Heta said Mr Kaienua was not back at the house at first, only Mr A, Y and him.

• [77] When asked about the 13-minute call from Mr Kaienua, Mr Heta said that Mr Kaienua didn’t say much, but then said:

He didn’t say – yeah, he just said that Y fell over, something about his hand and then I was like, “Really bruv, come on, you can tell me” and then he goes, “Nah, your brother, your brother carked it last night.” I said, “What do you mean?” and he goes, “Well he went all Nazi, went up to the store and he fuckin just went out of control. I didn’t know what to do bruv. I tried stopping him but he was just on his own, pretty much on his own buzz. I think he was more packed off at the fact that you two were almost gonna have a fight because you wanted to take him home.”

• [78] I do not accept this account by Mr Heta of the call received from Mr Kaienua. Insofar as it refers to Mr Kaienua’s account of what happened, Mr Kaienua never

suggested he tried stopping Y. Further, it did not address any discussion about the extent of Y’s confession, which seemed to prompt the call.

Knife photographs

• [79] The police found on one of Mr Kaienua’s mobile phones photographs of Mr Kaienua and Y posing in a vehicle each holding a knife. According to the police extraction report of data from the mobile phone, these photographs were taken on that phone on 16 June 2018, three days before the stabbings. Mr Kaienua thought it was at least a month earlier. That is unlikely given the extraction report but, irrespective of exactly when the photographs were taken, it was before the 19 June incident and shows Mr Kaienua and Y together, both holding knives. Mr Kaienua’s explanation was “It’s just pretty much Facebook these days.”

• [80] The police also found one of the same photographs in Facebook Messenger on his partner’s phone, received from Mr Kaienua on 24 or 25 June 2018. Mr Kaienua said he sent that photo to her because he was heavily intoxicated and angry.

• [81] Mr Kaienua accepted that Y is the sort who arms himself with a knife, Mr Kaienua did not care about that because he also posed with a knife and they were play-acting like gangsters.

Analysis

• [82] Having carefully and impartially considered all the evidence, I am sure that Y intentionally caused grievous bodily harm to Mr Patel by stabbing him and did so with the intent to rob him. The CCTV shows Y’s attack moving Mr Patel away from the cash register and Y trying to pull the cash register drawer open during the attack.

• [83] I am also sure that Y wounded Mrs Patel and did so with the intent to facilitate his flight upon the commission of the imprisonable offence of assault with intent to rob. Y clearly forced Mrs Patel backwards, stabbing her, and escaped over her as she was on the ground behind the counter, with Mr Patel trying to hold him by the backpack.
• [84] I am also sure that Mr Kaienua was involved in encouraging the robbery and aiding as look-out, for the following reasons.

• [85] Mr A said he heard Mr Kaienua and Y talking about robbing a dairy to get money for alcohol or something else, which would be easy. I bear in mind the need for caution before relying on Mr A’s evidence given the suggestion he has a motive to give false evidence that is prejudicial to Mr Kaienua.¹³ Even though Mr A did not tell police when interviewed in the week after the incident that he heard discussion of the planned robbery, he said he was probably a bit stoned and drunk, and may have been motivated to tell police at the next interview because of the “Now” text; I found his account reliable. He was not an eager witness and did not exaggerate. There was no evidence or indication in his account that his mental health condition affected his memory. His failure to tell police earlier likely reflected an intention to protect others. His account is also consistent with other key material facts, including that Y did attempt to rob a dairy soon afterwards. On the other hand, Mr Heta’s evidence may not be inconsistent, as he was out of the room for 5-10 minutes and may have missed discussion about a robbery.

• [86] Too many other facts are consistent with the plan and/or inconsistent with the innocent explanations:

(a) Although Mr Kaienua and Mr Heta emphasised they were trying to get Y to go home because he had removed his EM bail bracelet, there was no indication on the CCTV that Mr Kaienua was trying to get Y to go. As they walked around the Grey Lynn shops together, there was little engagement between them.

(b) Both Mr Kaienua and Y wore black clothing to the Grey Lynn shops - tops and pants (long shorts in Y’s case). Mr Kaienua wore a cap and scarf. Y wore Mr Heta’s running shoes instead of slides. Y had a backpack. Their dress was suitable for the robbery. The wet clothes explanation was plausible but inconsistent with the explanation given

¹³ Evidence Act 2006, s 122.

to police in Mr Kaienua’s interview; that explanation was not plausible given the CCTV showed no Donald Duck jersey.

(c) They paused across the road facing the dairy for almost two minutes. They then walked past the dairy, and Y appeared to look inside. It is not clear whether Mr Kaienua did. Just as they walked past, Mrs Patel walked to the door and Mr Kaienua put his hand up to his mouth. They returned two minutes later. Y was walking slightly ahead, with his right hand in his pocket (likely holding the knife).

(d) Mr Kaienua’s two accounts of when Y said he was going into the dairy. “Hold up” also suggests Y was behind him, whereas Y peeled in front of him, without appearing to make contact except for a gesture with Y’s left hand towards his rear as Y went around. Mr Kaienua kept walking past the dairy entrance.

(e) As soon as the second customer left, Y moved behind the counter, took out the knife and attacked Mr Patel. On CCTV the attack clearly looked premeditated. Y was like Mr Kaienua’s 16-year-old little brother who Mr Kaienua had been out with all day, drinking and smoking drugs in the afternoon, even though Y had removed his EM bracelet. Given their relationship, it is inconceivable that Y would do what he did in the dairy without warning Mr Kaienua.

(f) Mr Kaienua said he was on his phone all day but the CCTV does not indicate that at Panmure, Britomart or the liquor store. The Crown put to him that his close interest in his phone did not start until he walked up to Grey Lynn at about 7:05 pm – because he was trying not to appear involved. Moreover, Mr Kaienua said he told Y he would wait outside the dairy and play on his phone, and said in evidence he was playing on his phone the whole time outside the dairy, but the CCTV footage shows that is incorrect. While at the bins, he was not on his phone the whole time, as indicated above. He stood up and turned around when the second customer approached the dairy from the bus stop. He looked

out that way for over half a minute and then turned back around facing the other way before taking his phone out again soon after. He looked up when a car pulled in outside the dairy.

(g) Y’s look and gesture left towards Mr Kaienua as he ran out of the dairy indicates he knew where Mr Kaienua would be outside.

(h) Mr Kaienua’s reaction when Y ran out of the dairy was telling. If Mr Kaienua was not party to the plan, he would have been caught by surprise when Y ran out with a shopkeeper running after him. He may well have seen the knife and Y’s bloody hand. Mr Kaienua accepted that Y’s gesture as he ran out of the dairy was a ‘come on, let’s get out of here’. If Mr Kaienua had not known what had happened, it would have been a natural reaction for him to look in, especially if he had been concerned to keep Y out of trouble as his references to Y handing himself in suggested. Mr Kaienua did not look in.

(i) Mr Kaienua sent a text to Y’s half-sister at 7:12:59 pm saying “Sorry I’m pissed” and repeatedly said in evidence he was extremely intoxicated. There was no visible indication of that on CCTV but this is not determinative.

(j) Even accepting Mr Kaienua had been drinking and did not hear a cry for help from inside or see the knife or blood when Y ran out, if Mr Kaienua had been surprised and quickly feared being associated with something given his dislike of police, I expect that in that moment he would have shown surprise and fear. But, in that moment, he did not show any surprise or panic. He looked up from his phone but did not move except to reposition one foot slightly.

(k) Also, once he had computed the situation, and depending on what he feared Y might have done, the natural reaction would have been to look in the shop, run after Y or – if he had not wanted to associate himself with Y – go in the opposite direction. Instead, he straightened up as if

to move but then leant back on the bin while the person he thought was the shopkeeper was nearby, and then wandered off casually – following after Y down Tuarangi Road.

(l) Mr Kaienua’s “Now” text at 7:13 pm, which more likely refers to the robbery than that he was on the way back having found Y.

(m) Accepting that Mr Kaienua had a substantial sum in his father’s account, it may not have been available to him that evening. Mr Kaienua’s explanation to police and in evidence that he had no need for money and that he paid for everything was likely overstated.

(n) Mr Kaienua’s communication with Mr Heta the next day about the extent of Y’s confession, his avoidance of police and his subsequent misleading statement to police about the whereabouts of his phone were not well explained. I am conscious that such after-the-event conduct, of itself, may be capable of innocent explanation and does not prove guilt.¹⁴

• [87] Taken all together, these facts and Mr A’s account mean that I am sure Mr Kaienua was involved in encouraging the robbery and aiding as look-out.

• [88] Having concluded this, a key remaining question is whether Mr Kaienua knew that Y took a knife. My additional relevant factual findings are:

(a) Y took a knife from Mr A’s room. A knife sheath was left on the bed there. It is a small room. Mr Kaienua was there – that is where they discussed the robbery. But so was Mr A who did not hear any discussion about a knife or see anyone with the knife.

(b) As Mr Kaienua accepted, Y is the sort who arms himself with a knife and Mr Kaienua did not care about that because he posed with Y in the photos with both holding knives.

¹⁴ Boyd v R [2015] NZCA 527 at [15]-[16].

(c) Given their relationship, it is almost inconceivable that Y would arm himself with a knife for the planned robbery without telling Mr Kaienua before he went into the dairy.

(d) The knife was used proactively and early in the attack – not presented to threaten Mr Patel to get away or hand over money, nor left in Y’s pocket just in case the robbery got out of hand. Using the knife was planned, at least by Y.

(e) Taking these circumstances together, Mr Kaienua must have known Y had a knife.

• [89] In these circumstances, I cannot be sure that Mr Kaienua knew the plan was for Y to use the knife to intentionally cause grievous bodily harm to Mr Patel by stabbing him or to wound Mrs Patel with the intent to facilitate flight such that Mr Kaienua’s involvement amounts to aiding, abetting or inciting Y to do so.¹⁵

• [90] I am sure, however, that Mr Kaienua and Y had a common intention to rob the dairy with a knife as a weapon. That common intention was clearly unlawful. Mr Kaienua had agreed to help Y and participate to achieve that common unlawful goal. Y’s offences were committed in the course of pursuing that common purpose. Mr Kaienua knew that Y’s offences were a probable consequence of carrying out that plan – that there was a real possibility the knife could be used intentionally and those inside the dairy could be stabbed.¹⁶

Conclusion

• [91] For these reasons, Mr Kaienua is guilty of both the charge of assault (grievous bodily harm) with intent to rob and the charge of aggravated wounding.

Gault J

¹⁵ Crimes Act 1961, s 66(1).

¹⁶ Crimes Act 1961, s 66(2); and Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [102].