IN THE Court of appeal OF new Zealand
	
CA187/2012
[2013] NZCA 330

BETWEEN	
JASON KARAURIA ROBIN
First Appellant	

AND	
THE QUEEN
Respondent	

CA214/2012

AND BETWEEN	
TANGAROA WATENE PAREKURA GRAY
Second Appellant	

AND	
THE QUEEN
Respondent	

CA220/2012

AND BETWEEN	
SAMUEL PEARSON
Third Appellant	

AND	
THE QUEEN
Respondent	

CA267/2012

AND BETWEEN	
BECK EDEN GRAY
Fourth Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
30 April 2013	

Court:	
Arnold, Heath and Keane JJ	

Counsel:	
A M Simperingham for Appellant Robin
J G Krebs for Appellant Tangaroa Gray
N H Wright for Appellant Pearson
D J Sharp for Appellant Beck Gray
S B Manning for Respondent	

Judgment:	
26 July 2013 at 10 am	

	
JUDGMENT OF THE COURT

A	CA187/2012:	
	Jason Robin’s appeal against sentence is allowed.  His sentence of nine years’ imprisonment is quashed and a sentence of seven years, six months’ imprisonment is substituted. 

B	CA214/2012:
	Tangaroa Gray’s appeal against sentence is allowed.  His sentence of four years, six months’ imprisonment is quashed and a sentence of three years, six months’ imprisonment is substituted. 

C	CA220/2012:
	Samuel Pearson’s appeal against sentence is allowed.  His sentence of seven years, nine months’ imprisonment is quashed and a sentence of six years, four months’ imprisonment is substituted.

D	CA267/2012:
	In relation to Beck Gray:
	(a)		His application for an extension of time to appeal is granted.
	(b)	His application to adduce further evidence is dismissed.
	(c)		His appeal against conviction is dismissed.
	(d)	His appeal against sentence is allowed.  The sentence of nine years’ imprisonment is quashed and a sentence of seven years, six months’ imprisonment is substituted.
____________________________________________________________________

REASONS OF THE COURT

(Given by Arnold J)
Table of contents
	Para No
Introduction	[1]
A brief background	[2]
Mr Beck Gray’s conviction appeal	[6]
	Unreasonable verdict?	[11]
	The trial Judge’s instructions	[27]
	(i)   Identification	[29]
	(ii)  Failure to put defence adequately	[40]
	(iii) Self-defence	[44]
	Application to admit new evidence	[49]
The sentence appeals	[60]
	Mr Tangaroa Gray	[67]
	Mr Beck Gray	[73]
	Mr Jason Robin	[75]
	Mr Samuel Pearson	[80]
Decision	[82]
Introduction
[1]	The appellants were charged with two counts of wounding with intent to cause grievous bodily harm, each count involving a different victim, namely Messrs Roger and Nicodemus Te Puni (counts one and two respectively).  Mr Pearson entered pleas of guilty to both counts on the morning of trial and was sentenced to seven years, nine months’ imprisonment.  Following a jury trial before Judge Wilson QC: 
(a)	Mr Robin was convicted on both counts and was sentenced to imprisonment for nine years; 
(b)	Mr Tangaroa Gray was convicted on count one and acquitted on count two.  He was sentenced to imprisonment for four years, six months; and
(c)	Mr Beck Gray was convicted on count one and acquitted on count two.  He was sentenced to imprisonment for nine years.
Mr Beck Gray now appeals against both conviction and sentence, and the remaining appellants against sentence only.  (There was one further offender, Mr Rakairoa Gray, who was convicted on count one and sentenced to seven years’ imprisonment.  He has not appealed.)  Mr Beck Gray’s appeal was filed out of time, so he requires an extension of time to appeal.  There being no objection, we extend time.
A brief background
[2]	The appellants are patched members of the Black Power gang.  One of the victims, Mr Roger Te Puni, is a patched member of the Mongrel Mob.  The Crown alleged that the attack on the two victims was gang-related.  
[3]	On 17 December 2010, Messrs Robin and Tangaroa Gray were out drinking with Mr Samuel Pearson.  Having run out of alcohol and purchased further supplies, the trio went to Mr Pearson’s home, where Mr Beck Gray was child-minding.  Sometime after, while driving past Mr Pearson’s house, one of the victims, Mr Roger Te Puni, was verbally abused by people on the property.  There was an exchange of words and hand signals and possibly something was thrown at Mr Roger Te Puni’s car.  Mr Te Puni slowed down, but then drove off to gather together some associates and return to confront the group on the property.  
[4]	Mr Te Puni gathered up four people, including the second victim, his nephew Mr Nicodemus Te Puni.  He and his associates then drove to Mr Pearson’s house.  They stopped their vehicle on the front lawn of the property and got out.  The two victims walked towards the house, while the others remained further away.  It appears that neither of the victims was armed, although there was some dispute about that.  The intruders were met by those on the property and a fight broke out.  Messrs Roger and Nicodemus Te Puni were knocked to the ground.  At that point, the Te Punis’ associates withdrew further.  Those on the property hit the Te Punis with timber battens and a spade, as well as punching and kicking them, while they were on the ground.   
[5]	Although the Te Punis were knocked unconscious and were unable to defend themselves, the assailants continued to assault them.  Mr Roger Te Puni suffered extensive injuries to his face and head.  He has lost the vision in one eye and has been left with only 30 per cent vision in the other.  Mr Nicodemus Te Puni suffered brain injuries, a tooth fracture, a stab wound and a collapsed lung.
Mr Beck Gray’s conviction appeal
[6]	Before we deal with the grounds of Mr Beck Gray’s appeal against conviction, we should say a little more about the case against him.  There is no dispute that Mr Beck Gray was at Mr Pearson’s house when the Te Punis and their associates arrived.  The Crown case was that he took an active part in the attack, then left the property and hid in the backyard of a neighbour’s house.  The Crown argues that it is not significant that Mr Beck Gray may have left before the attack ended as there was ample evidence that he participated in it.  
[7]	The Crown relied on both direct and circumstantial evidence, as follows:
(a)	The evidence of a neighbour, Mr Antonio Curtis, who observed the attack.  His description of the person wielding the spade was consistent with the assailant being Mr Beck Gray and, on the Crown case, inconsistent with it being anyone else in the group on the property.
(b)	The identification of Mr Beck Gray by two of the victims’ associates, Messrs Joshua and Te Aowera Te Puni.
(c)	Mr Beck Gray’s age, his build and his clothing.  At the time, Mr Beck Gray was aged 35 and the oldest of the accused, the remainder being 17 or 18.  Mr Beck Gray has a bigger build than the others.  The Crown alleged that he was wearing shorts and a t-shirt on the evening in question, matching the description given by Mr Curtis. 
(d)	Mr Beck Gray’s behaviour when he left the property and his comments to a neighbour (Mrs Rangihuna-Roberts).  The Crown alleged that Mr Beck Gray sought refuge at the house of his neighbours, Mr Roberts and Mrs Rangihuna-Roberts, and gave the impression that he had something to hide from the police (who subsequently went to the property).  He also made some comments which indicated that he had knowledge of violence against an “old man” (alleged to be a reference to Mr Roger Te Puni).
[8]	Mr Beck Gray’s case was that he left the property after he had told the intruders to leave and before the attack began, and that he was at the neighbours’ house by the time the attack occurred.  Mr Beck Gray did not give evidence at trial, but evidence was called on his behalf.  In short, he denied that he had caused any injury to either victim or that he helped or encouraged anyone else to do so.
[9]	Mr Sharp’s submissions raised three grounds of appeal:
(a)	The verdict of the jury was unreasonable because deficiencies in the identification evidence meant there was an insufficient basis for a finding of guilt.
(b)	The Judge erred in his summing up.  In particular:
•	the Judge’s instructions on identification were inadequate;
•	the Judge had failed to summarise the case for Mr Beck Gray adequately; and
•	the Judge had failed to leave self-defence to the jury in respect of Mr Beck Gray.  
(c)	There is now important evidence available that was not available at the trial and is material to Mr Beck Gray’s defence, in particular the evidence of Mr Robin.
[10]	We deal with each ground in turn.
Unreasonable verdict?
[11]	The approach to be adopted was settled by the Supreme Court in R v Owen.  There the Court said:
We would endorse the following aspects of the decision of the Court of Appeal in [R v Munro]:
	(a) 	The appellate court is performing a review function, not one of substituting its own view of the evidence.
	(b) 	Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court.  Assessment of the honesty and reliability of the witnesses is a classic example.
	(c) 	The weight to be given to individual pieces of evidence is essentially a jury function.
		(d) 	Reasonable minds may disagree on matters of fact.
	(e) 	Under our judicial system the body charged with finding the facts is the jury.  Appellate courts should not lightly interfere in this area.
	(f) 	An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record.  The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[12]	The Court later agreed with the proposition that “[a] verdict will be unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt”.
[13]	Mr Sharp submitted that the identification evidence was fundamentally deficient.  Mr Sharp went through this evidence in considerable detail in an effort to point out the deficiencies.  In this context, we note this Court’s observations in Munro: 
[89] 	Finally, we note that an appellant must be able to point to a sufficient foundation for his or her submission that a ground of appeal under s 385(1)(a) exists before the Court is required to embark on the exercise of reviewing all of the evidence.  Where the Crown case against an appellant is strong or indeed overwhelming, it will be very difficult to point to a foundation for an appeal under s 385(1)(a).  Further, in performing any review of the evidence, regard must also be had to the existence of the jury verdict.  The appellate court does not approach the review of the evidence de novo, but rather factors the jury verdict into its decision.  It remains for the appellant to make out this ground of appeal … 
[90] 	We also note that, even where a sufficient evidential foundation has been raised, in many cases this ground of appeal can and will be dealt with quite shortly.  The contention that a verdict is unreasonable or that it cannot be supported with regard to the evidence will often rest on particular points in the evidence.  A judgment in such a case is likely to concentrate on those points rather than review the evidence not in contention.  Further, where the Court is of the view that, despite any gaps or inconsistencies in the Crown case, a reasonable jury was entitled to reject contrary evidence and to consider guilt proved beyond reasonable doubt, the case may well not lend itself to much elaboration … 
[14]	Against this background we briefly summarise the evidence as to identity.  We make the point first that Mr Roger Te Puni’s blood was on both sides of the spade.  
[15]	An important witness in this context was Mr Curtis.  His property backed onto that of Mr Pearson.  On the evening of the attack, he was having a barbeque in the backyard with his family.  When he heard shouting and yelling from Mr Pearson’s property, he went and looked over the fence.  He saw the attack unfolding.  He said that he saw a man with a spade who was bigger and older than the rest of the attackers, had long or bushy hair and was wearing black shorts and a black t-shirt.  The Crown argued that this description was consistent with Mr Beck Gray and inconsistent with the other attackers, who were much younger and slighter in build.  Two defence witnesses confirmed that when they saw Mr Beck Gray shortly after the incident he was wearing shorts, although they said he was not wearing a top (a point emphasised by the defence as the police had not found a discarded top).  
[16]	Mr Curtis said he saw the man holding a spade above his shoulder while standing over two men who were lying on the ground.  He turned away at that point to keep his family from seeing what was occurring but heard a sound which was consistent with one of the men on the ground being hit with the spade.  He described it as a “tingy” sound.  Mr Curtis accepted that he did not actually see the man holding the spade hit anyone with it.  When he turned back he saw one of the victims lying unconscious on the ground.  He did not see the man who had the spade again.
[17]	Another witness, Mr Whioparae Manuel, lived across the street from Mr Pearson.  He saw the victims arrive at Mr Pearson’s property.  Shortly after he heard shouting and saw a man wearing blue hitting a person lying on the ground with a spade, bringing the spade over his shoulder before striking the victim.  Mr Manuel said that he could see only two people participating in the attack at this stage.
[18]	Mr Joshua Te Puni (a nephew of Mr Roger Te Puni) was one of the group who went to Mr Pearson’s property, although he seems to have stayed at the street end of the driveway.  He had been drinking heavily since the day before the incident.  In his evidence, he said that three members of the group on the property were holding wooden fence battens and another had a spade.  Mr Te Puni said that he went back to the vehicle and took a wheel brace to protect himself.  He said he saw the two victims being hit with battens until they fell to the ground.  He saw one being hit with a spade while he was on the ground.  He said that he retreated and spoke to a man at the front of the property, a man whom he had seen earlier with a batten.  He described this man as being in his late twenties or early thirties and as wearing a black t-shirt.  He said the man asked them to leave.  When interviewed by the police after the incident he identified Mr Beck Gray from a photo montage as one of the people attacking the victims.  In evidence, he confirmed that he had seen the person he had identified hitting Mr Roger Te Puni with a spade while he was on the ground.  
[19]	Mr Te Aowera Te Puni (the son of Mr Roger Te Puni) was another member of the group who went onto the property.  In his evidence, he said he saw the attack from the front of the property.  He said he saw a short man in his mid-thirties dressed in blue shorts and a black t-shirt hitting his father with a spade while he was on the ground.  He said that the other attackers were younger than this man.  He also identified Mr Beck Gray from a photo montage as one of the men hitting his father.  Mr Te Aowera Te Puni said in evidence that he became concerned for his father’s condition and ran home to get his mother and brought her to the scene.  He was in a distraught state after the incident.  He made a statement to the police in which he gave a different sequence of events – that he had gone home to get his mother and the attack had occurred when they arrived back at the property.  There were other inconsistencies between his evidence and what he told the police. 
[20]	The defence called a neighbour, Mr Renata Taare.  His evidence was that he saw a man wearing shorts and jandals leaving the property, (although there was a conflict between his statement to the police at the time and his evidence as to where the man came from – the house or the driveway).  He identified the man as Mr Beck Gray.  The timing of this was not entirely clear, whether before or in the middle of the commotion occurring on the property.  Mr Taare said that he did not see anyone else wearing shorts.
[21]	Finally, we should mention that the Crown also relied on the evidence of the two other defence witnesses, neighbours to whose house Mr Beck Gray went that evening and spent the night.  The first, Mr Roberts, accepted under cross‑examination that when Mr Beck Gray arrived he was “puffing and panting” and looked like “he had been exercising”.  Mr Roberts said that Mr Beck Gray must have jumped over the fence to get onto his property as he had not come in the front gate.  He also said that Mr Beck Gray was wearing shorts but no top.
[22]	Mr Robert’s partner, Mrs Rangihuna-Roberts, said that she first saw Mr Beck Gray in her backyard and that he had not come through the front gate.  Mrs Rangihuna-Roberts said she had gone next door to collect the children after she heard a “kafuffle” of yelling and windows smashing at the property.  She picked the children up before the police arrived at the scene.  Mr Beck Gray had also appeared in the Roberts’ backyard before the police arrived.  Mrs Rangihuna-Roberts remembered Mr Beck Gray commenting that there were “some Mongrel Mobs or something over, happening at [his] house, a fight” and that “those guys shouldn’t have done that to that old man”.  She agreed that she had the impression that Mr Beck Gray was “hiding” from the police by staying at her house.
[23]	Mr Sharp submitted that critical to the Crown’s case were the identifications of Mr Beck Gray by Messrs Joshua Te Puni and Te Aowera Te Puni.  He argued that neither witness was truly independent of the events that night, being related to the victims, and both had an animosity towards the Grays that gave them a motive to lie.  Moreover, there were other reliability concerns about them: Mr Joshua Te Puni had been drinking heavily before the events in question and there were significant differences between what Mr Te Aowera Te Puni said in evidence and what he said to police, particularly about the sequence of events.  As he had at trial, Mr Sharp argued before us that both men were lying when they made their identifications.
[24]	In addition, Mr Sharp argued that Mr Curtis’ description of the person who used the spade was consistent with the appearance of Mr Pearson, as indicated in a police photograph which he provided to us.  That photograph, taken the day after the events at issue, showed Mr Pearson, who was 17 at the time, wearing dark shorts and a t-shirt.  He also argued that Mr Curtis may not have been able to see someone leaving the scene of the attack at the outset, as Mr Beck Gray said he did.  And finally, he challenged Mr Curtis’ independence on the basis that he was friendly with members of the Mongrel Mob.
[25]	The matters which Mr Sharp raised in argument before us were all matters which were vigorously explored at trial by way of cross-examination and in respect of which detailed submissions were made to the jury.  There was no dispute that Mr Beck Gray was present at the property when the Te Punis arrived.  The question was whether he had left before the attack commenced or had participated in the attack and then left.  As Mr Manning for the Crown argued, the evidence of Messrs Joshua and Te Aowera Te Puni gained significant support from the evidence of Mr Curtis.  The jury’s verdicts indicate that they were satisfied that, taken as a whole, the evidence established beyond reasonable doubt that Mr Beck Gray had participated in the attack on Mr Roger Te Puni but were not satisfied to that standard that he had participated in the attack on Mr Nicodemus Te Puni.  Clearly, then, the jury were careful to isolate and consider the evidence going to each charge.  
[26]	Against this background we see no basis for concluding that there has been a miscarriage of justice on the ground that the jury’s verdict on count one is unreasonable.  Rather, we consider that the jury were justified in concluding on the evidence before them that Mr Beck Gray was guilty on that count.
The trial Judge’s instructions
[27]	By way of further background, we should mention that at the conclusion of his summing up, Judge Wilson asked counsel whether there was anything arising from his summing up.  Mr Sharp raised some matters with him.  The Judge recalled the jury and gave further instructions.  He asked Mr Sharp whether his further instructions had captured Mr Sharp’s points.  Mr Sharp indicated that they had.  We return to the content of the additional instructions below.
[28]	We will deal first with identification, then with failure to put the defence case and finally with self-defence.
(i)	Identification
[29]	Judge Wilson noted that identification was an important issue in the trial.  He said:
[23]	In this trial the defence variously raises issues about identity and intention and matters of self-defence, and those are likely to be the focus of your enquiries; also of course the part played by each of the accused.  Those issues are going to be central to your determination in this case, I suggest.
[30]	The Judge explained the identification procedures and then gave a general identification warning as required by s 126 of the Evidence Act 2006, as follows:
[28]	And I need to give you some warnings about identification evidence.  This is a case in which the identification of the accused is central to the charges.  And of course the Crown case depends wholly or substantially on the correctness of one or more visual identifications and I am required to warn you of the special need for caution before finding an accused guilty in reliance on the correctness of any such identification.
[29]	The reason for that is that a mistaken identification can result in a serious miscarriage of justice.  A mistaken witness can be convincing.  And even where there is more than one identification witness there is the possibility that all of them may be mistaken.  And of course when you are assessing those descriptions you have to bear in the mind the circumstances in which the original viewing took place and consider what was happening at the time.  The opportunities for seeing the face of someone involved; the opportunities, as defence counsel have said, for perhaps someone to have seen someone there but then confuse them as being involved when they were not.  So just approach that evidence with some care because of that special need for caution and for the reasons that I have given you.
Later, towards the end of his summing up, the Judge reiterated that issues of identification were important “because a mistake in identification can lead to a miscarriage of justice”.
[31]	As can be seen, consistently with the requirements of s 126, the Judge:
(a)	warned the jury of the special need for caution (s 126(1));
(b)	told them that a mistaken identification can result in a serious miscarriage of justice (s 126(2)(a));
(c)	noted that a mistaken witness can be convincing (s 126(2)(b)); and
(d)	referred to the possibility that all of the identification witnesses could 	be mistaken (s 126(2)(c)).
[32]	In addition, the Judge gave the jury a question trail, following input from counsel as to its contents.  Before setting out the questions that the jury had to determine, the handout dealt with some general points.  Included among these was the following statement:
Issues of identification are important because a mistaken identification can lead to a miscarriage of justice.
[33]	Nevertheless, Mr Sharp was critical of the Judge’s instructions.  Mr Sharp relied on this Court’s decision in R v Turaki for the proposition that the s 126 warning should have been tailored to the circumstances of the case.  There the Court said that a trial judge should include directions beyond those prescribed by s 126(2) as circumstances require.  Mr Sharp said that, when giving the warning, the Judge had failed to draw the jury’s attention to the circumstances of the identifications and the weaknesses in them as highlighted by the defence.  
[34]	We accept that an identification warning which simply repeats the propositions in s 126(1) and (2) in general terms may not necessarily be sufficient and that such warnings should be tailored to the needs of the particular case.  But, as the section itself recognises, no particular form of words is necessary.  While the judge should identify the factual features that support or diminish the probative value of the identification in the particular case, the judge is not obliged to repeat all the points about identification that defence counsel has made.  In the present case, we consider that the warning given by the Judge and the way in which he dealt with the evidence given by key witnesses was sufficient to bring home to the jury the issues associated with the identification evidence in this case.
[35]	By way of explanation, after giving the warning, the Judge first summarised the evidence of the key witnesses and then the cases of the Crown and the accused.  In the course of summarising the witnesses’ evidence, the Judge noted the various points made by defence counsel about the credibility and reliability of each witness.  In relation to Mr Joshua Te Puni, for example, the Judge noted among other things that he had picked Mr Beck Gray out from a photo montage.  The Judge went on to emphasise that defence counsel had challenged Mr Joshua Te Puni’s evidence on the basis that he had consumed a great deal of alcohol and had a motive to lie, namely a long-standing disagreement with the Gray family.  The Judge concluded his discussion of Mr Joshua Te Puni by saying:
So that is for you to assess as to whether his evidence is clouded by alcohol, clouded by prejudice, or whether, when you look at it in relation to the other evidence you have heard, you find it acceptable or not.  It is a matter for you.
[36]	The Judge adopted a similar course in relation to Mr Te Aowera Te Puni, who had also identified Mr Beck Gray from a photo montage.  Judge Wilson noted the inconsistencies between what he had said in evidence and what he told the police.  The Judge reminded the jury that the defence had put to him that he had fabricated his evidence out of a dislike for the Grays.  
[37]	The Judge then reiterated these points when he summarised the defence cases.  Indeed, the last point that he made to the jury when he recalled them at Mr Sharp’s request was that the defence had raised the possibility of mistaken identification.
[38]	These are matters that Mr Sharp said the Judge should have adverted to when giving the identification warning.  That is, he should have tailored the warning to take account of these points.
[39]	However, in his summing up the Judge did highlight the risks that the defence had identified in relation to the identifications.  Given that there were multiple defendants, the manner in which the Judge chose to deal with the detailed points about identification (in the context of a discussion of the witnesses’ evidence and the parties’ cases rather than in the context of the warning) was appropriate.  The jury cannot have been in any doubt that the identifications were crucial to the Crown case against Mr Beck Gray, and that, in deciding whether they were satisfied beyond reasonable doubt that they were accurate, they had to exercise caution and had to weigh the various matters raised by Mr Sharp in cross-examination and submissions going to the reliability of those identifications.
(ii)	Failure to put defence adequately   
[40]	Turning to failure to put the defence adequately, as we have said, Mr Sharp raised this with the Judge at the conclusion of the summing up.  In response to Mr Sharp’s concerns, Judge Wilson recalled the jury and said:
[2]	Sorry to get you back in but it is important.  Mr Sharp has raised some matters about the defence of Beck Gray that I acknowledged I should pass onto you.
[3]	The first thing that he is wanting to draw your attention to is that it was not just Te Aowera who had not mentioned the use of the spade in his interviews with police.  That also applied to Joshua Te Puni.  He suggests that also it was significant that Te Aowera knew that Joshua had had this ankle injury and while that may not be particularly important in the circumstances, he said this was a factor that pointed towards the possible contamination between these two young men.  Because how would Te Aowera know about Joshua’s injury if he had not been told?
[4]	While I am dealing with the question of the spade, it is of course the position that Te Aowera had not mentioned the spade being used during his police interviews.  But he did in fact mention that a spade was there.  You can make what use of that you think appropriate.
[5]	Mr Sharp also made this point – he said when his client left number 28, he was seen by the neighbour across the road, Mr Taare, with no shirt.  When he got to the neighbour’s place, the man and the woman there describe him as having no shirt.  There is no description, he says, of anybody being involved in the attacks, if that is what they were, having no shirt.  So he says this is a factor which you need to take into account.
[6]	He also pointed out that Detective Smallman, who had done the search of the house, found no black t-shirt and no discarded clothing.  So he submits that is an important factor for you to bear in mind when deciding whether the identification of his client as being involved is reliable.
[7]	He also pointed out that while there was a description of the man as being in their mid-thirties, other descriptions were different.  He submits to you that bearing those matters in mind, that there is a possibility here of a mistaken identification of his client.
[41]	Mr Sharp submitted that, despite the further instructions, the defence case was not adequately put to the jury.  He argued that because the Judge summarised the evidence of the key witnesses and dealt with the Crown and defence cases in a combined fashion, there was a failure to set out clearly the defence challenge to identification.  
[42]	Much of what we have already said goes to this appeal point.  We have no doubt that the jury fully understood both that the identifications were challenged and the basis of the challenges.  The Judge specifically drew attention to the issues of intoxication, bias and inconsistency.  Having recalled the jury to give a fuller exposition of Mr Beck Gray’s defence at Mr Sharp’s request, the Judge asked Mr Sharp whether he had covered his concerns.  Mr Sharp indicated that he had.
[43]	Accordingly, we consider that what the Judge said in his summing up and his additional remarks about Mr Beck Gray’s case was sufficient to put the defence fairly to the jury.
(iii)	Self-defence 
[44]	Mr Sharp submitted that, even though he did not raise self-defence on behalf of Mr Beck Gray, the Judge should have left self-defence to the jury.  
[45]	The Judge did instruct the jury generally on self-defence and he discussed self-defence when discussing the defence cases, although not in relation to Mr Beck Gray.  The only mention in the summing up of self-defence and Mr Beck Gray occurred when the Judge summarised the Crown case.  The Judge noted the Crown submission (without in any way endorsing it) that it was inconsistent for Mr Beck Gray to argue that he was acting in self-defence if his case was that he had left the scene before any violence occurred.  
[46]	However, the question trail addressed self-defence, both generally and in relation to Mr Beck Gray.  The general part read:
You can only find the accused guilty if you are satisfied, beyond reasonable doubt, that:
1.	The accused himself caused grievous bodily harm to Roger Te Puni (count one) or Nicodemus Te Puni (count two) or he actively and knowingly helped one or more of the other accused to cause grievous bodily harm to Roger Te Puni (count one) or Nicodemus Te Puni (count two)
and
2.	At that time the accused intended that the grievous bodily harm, which is harm, or injury that is really serious be caused to Roger Te Puni (count one) or Nicodemus Te Puni (count two),
and
3.	You can then be satisfied that the accused was not acting in self defence.
[47]	The part relating to Mr Beck Gray read:
Count one as to BECK EDEN GRAY
1.	1A.	Are you sure that an act by BECK GRAY caused grievous bodily harm to Roger Te Puni?
If your answer is “no” go to Question 1B.
If your answer is “yes” go to question 2.
1B	Are you sure that BECK GRAY actively helped one or more of the other accused or Samuel Pearson to cause grievous bodily harm to Roger Te Puni?
If your answer is “no” find BECK GRAY not guilty of this count
If your answer is “yes” go to question 2.
2.	Are you sure that when BECK GRAY did that he intended that Roger Te Puni be caused really serious harm”?
If your answer is “no” find BECK GRAY not guilty of this count and go onto consider the next count.
If your answer is “yes” go to question 3.
3.	Given what BECK GRAY believed was happening at the time, are you sure that he was not acting to defend himself or someone else?
If your answer is “yes” (you are sure that BECK GRAY did not act to defend himself or someone else) find BECK GRAY guilty of this count and go on to consider the next count.
If your answer is “no” (there is a reasonable possibility that BECK GRAY acted to defend himself or someone else) go to question 4.
4.	Given what BECK GRAY believed was happening at the time, are you sure that the force he used was not reasonable?
If you are sure that the answer is “yes” (the force used was not reasonable) find BECK GRAY guilty of this count and go on to the next count.
If your answer is “no” (there is a reasonable possibility that the force was reasonable) find BECK GRAY not guilty of this count and go on to consider the next count.  
[48]	These written directions were sufficient to remove any risk of a miscarriage resulting from those given orally.  Accordingly, we do not consider that any miscarriage of justice arose by virtue of any inadequacy in the Judge’s instructions.
Application to admit new evidence
[49]	Mr Beck Gray seeks leave to file an affidavit of one of the other appellants, Mr Jason Robin, on the ground that it was evidence unavailable at the time of the original trial.  The effect of Mr Robin’s affidavit was that Mr Beck Gray had left the scene before either of Mr Roger Te Puni or Mr Nicodemus Te Puni was struck.  Mr Robin says that he was present while Mr Roger Te Puni was being struck and Mr Beck Gray was not present.  He does not identify who was present or who struck Mr Roger Te Puni with the spade.
[50]	Mr Sharp indicated that the evidence was intended to be supported by an affidavit from Ms Hinemateroa Campbell, but she was not able to be located in time.  She had given a statement to the police after the incident.  In that statement she said that she was at a house after the incident when some of the attackers were celebrating.  Mr Pearson was there.  Ms Campbell said that Mr Pearson said that he had a spade and that he had hit the victims with it.  She said that Mr Pearson had demonstrated how he had used the spade.  Mr Sharp also wished to adduce a police photograph of Mr Pearson, taken the day after the incident.  It shows Mr Pearson wearing dark shorts and a dark t-shirt.  Mr Sharp said that this material raises a reasonable possibility that he was the person who attacked Mr Roger Te Puni with the spade.
[51]	As this Court noted in R v Saggers, the principles applicable to the admission of a co-accused’s affidavit evidence after trial are well settled.  There the Court said:
[18]	It is, of course, the case … that Mr Saggers could not have compelled Mr Richards to give evidence at their joint trial: see the Evidence Act 2006, s 73.  But that does not mean that, post-trial, potentially helpful evidence of a co-accused is to be treated as fresh for the purposes of an application of this kind.  This court has set out on a number of occasions the principles applicable to an application of this kind: see R v Fryer [1981] 1 NZLR 748, R v Raukawa CA219/89 26 February 1990, R v Barlow CA443/95 22 February 1996, and R v Taylor [2007] 2 NZLR 250.  The principles that emerge are these:
	(a)	If a defendant (A) knows that a co-defendant (B) could give evidence favourable to A and therefore wishes to call B at his trial, A should seek severance of his trial from B’s.
	(b) 	If A elects not to seek severance in those circumstances, he or she cannot be heard to argue on appeal that B’s evidence, which is now available, is “fresh”.
	(c) 	Even where B’s evidence is fresh (in that A did not know of it at the time of the joint trial and could not reasonably have been expected to discover it), this court will examine B’s evidence with real care, being conscious of the risk that a former co-defendant may well give false evidence to assist an appellant (A) safe in the knowledge that he (B) cannot be prosecuted again for the substantive offence or one like it.
[52]	Section 73(2)(a) the Evidence Act contemplates that an “associated defendant” will be a compellable witness where he or she is tried separately from the accused.  In R v Taylor, this Court identified the circumstances in which severance was likely to be granted where an accused wished to call a co-accused as a witness.
[53]	There has been no suggestion that any application for severance was made to allow Mr Beck Gray to call Mr Robin.  Moreover, there is reason to doubt Mr Robin’s veracity (or reliability) on this point.  He made several statements to the police.  In his first statement, on 20 December 2010, he was asked whether Mr Beck Gray was at Mr Pearson’s house when the attack occurred.  He said he did not know whether Mr Beck Gray was there, although he went on to say that he might have been as he was supposed to be looking after his children.  He said that Mr Beck Gray was “known as a pussy” and had both a reputation for being “soft” and “a bad name for running away and stuff and hiding away”.  He said he did not know who hit the victims with the spade.  
[54]	In another statement, on 24 June 2011, he described kicking the two victims while they were on the ground.  He then said he picked up a piece of wood.  When asked whether Mr Beck Gray was there he said he was but that he did not know what he was carrying.  He also said that Mr Beck Gray was “the one talking the loudest”.  When asked “so it was just Beck, Tangaroa, Rakai and Sean”, Mr Robin said “yeah”.  He acknowledged that the victims had been hit with a spade.  When asked who had the spade, he replied that he did not know.  While he said that Mr Pearson had disappeared at some point, he made no mention of Mr Beck Gray disappearing.  
[55]	For these reasons, we decline to admit Mr Robin’s affidavit.
[56]	In relation to Ms Campbell, she was called as a witness by the Crown.  Counsel for Mr Robin put to her what she had said in her statement to the police about what she said Mr Pearson had done.  Ms Campbell replied that she could remember making the statement but could “not remember it happening”.  Mr Sharp did not cross-examine her.
[57]	Finally, it appears that the photograph of Mr Pearson was not taken immediately after the incident but the following day.  His mother, who was at the house where the celebration occurred after the incident, gave a statement to the police to the effect that Mr Pearson was wearing clothing on the night which was different to the clothing in the photograph.  Moreover, the evidence indicated that Mr Pearson had gone into a neighbouring house to obtain a knife and a scraper.  Other evidence indicated that the victims had been stabbed.  The summary of facts that was the basis of Mr Pearson’s guilty pleas did not mention him using any weapon, simply kicking one of the victims causing him to fall to the ground.  The suggestion that it was he who wielded the spade is not supported by any significant evidence and was not a proposition advanced at trial. 
[58]	The application to adduce further evidence is accordingly declined.
[59]	For these reasons, we dismiss Mr Beck Gray’s appeal against his conviction.
The sentence appeals
[60]	Before dealing with the individual sentence appeals, we set out the basis on which Judge Wilson sentenced.  
[61]	The Judge noted a number of aggravating features of the offending in terms of R v Taueki: the extreme violence, its prolonged and excessive nature, the serious injuries suffered, the use of weapons particularly to the head, the number of attackers and the gang context.  The Judge noted the culture of violence that these offences reflected and the problem it created for the community.  He emphasised the need for deterrence.  The Judge accepted, as the Crown had acknowledged, that there was a degree of provocation (or home invasion) in the behaviour of the victims and their associates, which had to be taken into account, and that the offending had the characteristics of excessive self-defence.  
[62]	The Judge noted the Crown submission that the offending against Mr Roger Te Puni fell into band three of Taueki, which had a range of nine to 14 years’ imprisonment.  The Crown submitted that this offending was at the top of the range and sought a starting point towards 14 years.  The Judge did not accept that, saying that the top of the range needed to be kept for more serious offending.  In relation to the offending against Mr Nicodemus Te Puni, the Crown submitted that that it was at the top of band two or bottom of band three.  The Crown sought a nine year starting point.  The Judge noted that all the offenders except Mr Beck Gray were teenagers, so that had to be taken into account.
[63]	The Judge then sentenced the defendants as follows:
(a)	Rakairoa Gray:  He was 18 years of age and was convicted on count one (Mr Roger Te Puni).  The Judge adopted a nine year starting point, from which he deducted one year to take account of provocation and excessive self-defence and a further year to take account of his youth.  The end sentence was seven years’ imprisonment.
(b)	Tangaroa Gray:  He was also aged 18 and was convicted on count two only (Mr Nicodemus Te Puni).  The Judge adopted a seven year starting point, and deducted one year for provocation/excessive self‑defence, a further year for youth and six months for his prospects for rehabilitation and genuine remorse.  This left an end sentence of four years, six months’ imprisonment.
(c)	Beck Gray:  The Judge adopted a starting point of nine years’ imprisonment for Mr Beck Gray’s conviction on count one.  Although the Judge appears to have acknowledged that provocation/excessive self-defence should be taken into account, he gave Mr Beck Gray no discount, so that his end sentence was nine years’ imprisonment.
(d)	Jason Robin:  He was aged 19 at the time of the offending and was convicted on both counts.  The Judge chose a starting point of eight years’ imprisonment, from which he deducted 18 months to reflect youth, remorse and rehabilitative efforts.  This resulted in an end sentence of five years, six months’ imprisonment.  However, when the Judge retired after sentencing, Crown counsel asked to see the Judge in Chambers, in the presence of counsel for the appellants (except counsel for Mr Pearson, who was sentenced separately).  Mr Simperingham, who was counsel for Mr Robin, advised us that prosecuting counsel suggested to the Judge that he had erred in sentencing Mr Robin because the sentence he had imposed was inconsistent with the sentences imposed on the other offenders.  Mr Simperingham said that without hearing submissions from him, the Judge agreed and decided to re-sentence Mr Robin.  The Judge had Mr Robin brought back to Court and re-sentenced him, over Mr Simperingham’s protest that the Judge was functus officio.  The Judge said:
		[47]	Mr Robin, when I sentenced you earlier today I adopted an approach which was in fact inconsistent with the approach that I have adopted for other offenders and I failed to take into account that you should be dealt with on a similar basis.  You are, of course, facing conviction on both counts and it is appropriate that I deal with those counts on a consistent basis. 
		[48]	… [T]he appropriate sentence for you on count 1 should have been in line with the other starting points that I adopted for the other accused and I fell into error, which I must now correct.  On count 1 you are sentenced to nine (9) years’ imprisonment.
		[49]	Your involvement in the other count leads to a consideration of the uplift that the Crown has submitted as appropriate.  I accept that that uplift should be two years, which would lead to a sentence of 11 years.  However, for matters of youth, excessive self-defence and the like, I allow a credit of two years.  Accordingly, your sentence is one of nine (9) years’ imprisonment and that is allocated as your sentence in this case.
[64]	Mr Pearson was sentenced separately from the other offenders, later on the same day.  It will be recalled that he entered guilty pleas to both counts on the morning of trial.  Mr Pearson was 17 at the time of the offending.  The Judge again identified the aggravating features of the offending and accepted that the victims’ behaviour was provocative.  The Judge adopted a starting point of nine years for count one and applied an uplift of two years in respect of count two, resulting in an 11 year starting point.
[65]	The Judge identified a number of mitigating factors, including Mr Pearson’s youth, his unfortunate upbringing, his “clean” criminal history and his remorse.  The Judge also noted that Mr Pearson had been on remand under 24 hour curfew or electronic monitoring on bail prior to trial.  The Judge reduced the 11 year starting point by two years to reflect the mitigating personal circumstances (and, the Crown submitted, provocation/excessive self-defence) and then applied a 15 per cent discount to reflect Mr Pearson’s guilty pleas.  This produced an end sentence of seven years, nine months’ imprisonment.
[66]	All appellants appeal against their sentences.  We deal with each in turn.
Mr Tangaroa Gray
[67]	For Mr Tangaroa Gray, Mr Krebs made two points.  First, he said the starting point was too high and second, he submitted that there should have been a greater discount for personal factors (youth, remorse and lack of previous convictions).
[68]	As to the first point, the Judge treated the count two offending as falling within band two of Taueki and adopted a seven year starting point but then deducted one year to reflect the provocation/self defence aspects.  Mr Krebs said the Judge placed too much emphasis on the suggestion that Mr Tangaroa Gray had started the whole fracas by throwing the first punches.  He pointed out that the Judge had accepted that the victims’ actions in coming on the property were both provocative and threatening.  Against that background, violence was inevitable, so that it was wrong to say that Mr Tangaroa Gray was responsible for the triggering the assault.  In effect, Mr Tangaroa Gray’s actions amounted to excessive self-defence.  Taking these factors into account, Mr Krebs argued for an adjusted starting point of three to four years.
[69]	In Taueki, this Court identified provocation and excessive self-defence as leading to lower starting points for this type of offending.  We agree with the Judge that both factors were present in this case.  First, the actions of the victims in coming on to the property were undoubtedly provocative.  They were a form of home invasion and an over-reaction to the name-calling from the property.  Second, it is reasonable that, initially at least, the appellants would have feared that the victims and their associates were intending violence against them.  That might have justified their initial response.  However, because the victims were quickly subdued and their associates retreated, the serious violence that followed was unjustified and excessive.
[70]	We agree with the Judge that this offending falls within band two of Taueki.  We accept that seven years’ imprisonment was an appropriate starting point for the analysis but consider that a greater adjustment needed to be made to reflect provocation and excessive self-defence.  We consider that a discount of 18 months is appropriate.  That produces a starting point of five years, six months.
[71]	In relation to the discount for the personal factors of youth, remorse and lack of previous convictions, the Judge allowed a total discount of 18 months.  Mr Krebs said that there was a disparity in relation to Mr Pearson, who received a two year discount for those factors.  
[72]	While the comparison with Mr Pearson is not necessarily accurate as it may be that the two year discount given to Mr Pearson was intended to include discount for the provocation/self-defence aspects as well as personal factors (as the Crown submitted), we consider that a two year discount for youth, remorse and a lack of previous convictions was appropriate.  Mr Tangaroa Gray received a positive pre‑sentence report and has support from a long term partner and the local community more generally.  This produces an end sentence for Mr Tangaroa Gray of three years, six months’ imprisonment.
Mr Beck Gray
[73]	Mr Sharp submitted that the Judge did not give Mr Beck Gray a discount for provocation/excessive self-defence as he did with the other defendants.  It is evident from the Judge’s sentencing notes that this omission was an oversight.  Mr Manning for the Crown accepted that Mr Beck Gray is entitled to a discount on that account.  We agree.  
[74]	In line with the discount given to Mr Tangaroa Gray, we consider that the nine year starting point for Mr Beck Gray’s conviction on count one should be reduced by 18 months to reflect provocation/self-defence.  This produces an end sentence of seven years, six months’ imprisonment.
Mr Jason Robin
[75]	It will be recalled that Mr Robin was found guilty on both counts and initially sentenced to imprisonment for five years, six months but was then re-sentenced to nine years’ imprisonment.  Mr Simperingham argued that the Judge was functus officio and had no power to re-sentence Mr Robin.  He referred to s 75(1) of the Summary Proceedings Act 1957 and to R v Draper.  
[76]	While it is generally true that once a judge has delivered the decision and reasons he or she is functus officio, it is possible at common law for a sentencing judge to correct a sentence before it has “passed into record”.  In R v Davidson this Court considered whether a judge had the power to recall a prisoner to make it clear
that sentences which he had just imposed were cumulative on an earlier sentence.  The Court, following English authority, held that the Judge had jurisdiction to alter the sentence up until the time the sentence was entered into the book entitled “Return of Prisoners Tried and Sentenced”, which is a register of persons committed for trial and sentence.  The entry into this register generally precedes the signing of the warrant of commitment for imprisonment.  Any such re-sentencing should be carried out in open court, in the presence of the affected prisoner.
[77]	The present case is unusual in terms of the nature of the error made by the Judge (inconsistency), but that does not alter the principle.
[78]	Accordingly, we consider that the Judge had jurisdiction to re-sentence in the present case.  However, we consider that, consistently with the other offenders, Mr Robin is entitled to greater discounts than he received.
[79]	A starting point of nine years was adopted for count one and this was uplifted by two years to reflect Mr Robin’s conviction on count two.  We consider that the resulting starting point of 11 years should have been reduced by 18 months for provocation/excessive self-defence.  On top of that, a discount of two years should have been given for personal mitigating factors, which include efforts at rehabilitation.  That produces an end sentence of seven years, six months’ imprisonment.
Mr Samuel Pearson
[80]	Ms Wright argued that Mr Pearson had entered guilty pleas to both counts on the basis of a summary of facts which contained a number of differences from the evidence as it emerged at trial.  Ms Wright submitted that it was unclear whether the Judge had sentenced Mr Pearson on the basis of the summary of facts or on the basis of the evidence at trial but argued that if the former, a lower starting point would have been adopted.  Ms Wright also submitted that although the Judge had mentioned provocation/excessive self-defence in his sentencing remarks, he had failed to give Mr Pearson a relevant discount.
[81]	We consider that, apart from the guilty pleas, Mr Pearson was in a broadly similar position to Mr Robin.  The Crown case was that all the offenders participated in what was a joint attack, albeit in different ways.  Mr Pearson’s pleas reflect that.  Accordingly, we consider that the Judge was entitled to adopt a starting point of 11 years (nine years on count one with a two year uplift for count two).  We accept that this should be reduced by 18 months to reflect provocation/excessive self-defence.  The resulting nine years, six months should be reduced by two years for personal mitigating factors.  This produces a sentence of seven years, six months.  The 15 per cent discount for the guilty pleas which the Judge gave should be applied to that figure, which (rounded) produces an end sentence of six years, four months’ imprisonment. 
Decision
[82]	We summarise our decisions as follows:
	CA187/2012:	
	Mr Jason Robin’s appeal against sentence is allowed.  His sentence of nine years’ imprisonment is quashed and a sentence of seven years, six months’ imprisonment is substituted. 
		CA214/2012:
	Mr Tangaroa Gray’s appeal against sentence is allowed.  His sentence of four years, six months’ imprisonment is quashed and a sentence of three years, six months’ imprisonment is substituted.
	CA220/2012:
		Mr Samuel Pearson’s appeal against sentence is allowed.  The sentence of seven years, nine months is quashed and a sentence of six years, four months’ imprisonment is substituted.
	CA267/2012:
	In relation to Mr Beck Gray:
	(a)	His application for an extension of time to appeal is granted.
	(b)	His application to adduce further evidence is dismissed.
	(c)	His appeal against conviction is dismissed.
	(d)	His appeal against sentence is allowed.  The sentence of nine years’ imprisonment is quashed and a sentence of seven years, six months’ imprisonment is substituted.

Solicitors: 
Crown Law Office, Wellington for Respondent