R v KAIENUA [2019] NZHC 1794

R v KAIENUA [2019] NZHC 1794 [29 July 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESS PURSUANTTO S 202 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-004-5617[2019] NZHC 1794THE QUEENvNGATAMA JAMES KAIENUAHearing: 15, 16, 17, 18 and 19 July 2019Appearances: B Dickey and L Fraser for the CrownS Tait and J Hudson for the DefendantVerdict 29 July 2019Reasons: 29 July 2019REASONS FOR VERDICTS OF GAULT JSolicitors:Mr B Dickey and Mr L Fraser, Meredith Connell, Office of the Crown Solicitor, AucklandMr S Tait and Mr J Hudson, Barristers, Auckland[1] Mr Siddhartha Patel and Mrs Gita Patel were stabbed in their family dairy inGrey 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 beganstabbing 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 wasalso stabbed.[3] Mr Patel was stabbed in the front and side of his chest, and received otherlacerations to his shoulder, head and hand. The stab wounds injured hishemi-diaphragm muscle between his chest cavity and abdomen, perforated part of hislarge intestine and lacerated his sternum and caused a collapsed lung. He requiredsurgery twice and was in hospital for nearly six weeks. Mrs Patel was stabbed in theabdomen 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 thedairy 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 torob and aggravated wounding. Y is not before this Court but the Crown must provethe offences to which Mr Kaienua is alleged to be a party. The defence does notdispute 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 grantedhim leave to withdraw his election to be tried by jury. The trial proceeded as a judgealone 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 chargeAssault 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 whowith intent—(c) To avoid the arrest or facilitate the flight of himself or of any otherperson upon the commission or attempted commission of anyimprisonable offence—wounds, maims, disfigures, or causes grievous bodily harm to any person, orstupefies or renders unconscious any person, or by any violent means rendersany 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] 2 NZLR 233 (CA) at 237-238; and R v Eide [2005] 2 NZLR504 (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 thecommission 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 tocommit the offence; or(c) Abets any person in the commission of the offence; or(d) Incites, counsels, or procures any person to commit theoffence.(2) Where 2 or more persons form a common intention to prosecute anyunlawful purpose, and to assist each other therein, each of them is aparty to every offence committed by any one of them in theprosecution of the common purpose if the commission of that offencewas known to be a probable consequence of the prosecution of thecommon purpose.[13] The Crown relies on both s 66(1) and (2). Under s 66(1), it says Mr Kaienuaknowingly and intentionally aided, abetted or incited – meaning organised, helped orencouraged – Y to commit the offences.3[14] The Supreme Court in Ahsin v R explained the elements the Crown must provebeyond reasonable doubt to convict a defendant under s 66(1):4For the conviction of a person as a party to an offence under s 66(1)(b), proofis 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 willaid the principal offender in his or her criminal actions, the essential aspects3 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 includesboth physical and mental aspects of that person's conduct, that is, the actionsto 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 s66(1) is that it concerns conduct providing assistance or encouragement thatmay 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 carryingout a plan to rob a dairy with a knife as a weapon, that the knife might be used, andthat those inside the dairy might get stabbed. In this context, probable consequencemeans a real possibility or something that could well happen.5[16] The Supreme Court in Ahsin described what the Crown must prove unders 66(2):6(a) the offence to which the defendant is alleged to be a party wascommitted by a principal offender; and(b) there was a shared understanding or agreement to carry out somethingthat was unlawful; and(c) the person accused of being a party to that agreement had all agreed tohelp each other and participate to achieve their common unlawful goal;and(d) the offence was committed by the principal in the course of pursuingthe 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 outthe common purpose. This requires foresight of both the physical andmental 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 NZLR92 (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 highstandard, 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 carefuland impartial consideration to all of the evidence.7[18] Where the charge has several essential elements, as is the case here, proof ofguilt necessarily involves proof of each of those elements to the same standard. It doesnot, however, require proof beyond reasonable doubt of every fact which may berelevant to proof of each essential element.8Issues[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, whichwere not challenged by the defence. Much of the Crown case is based on CCTVfootage.[21] Mr Kaienua had spent the day with Y, who was the younger half-brother ofMr Kaienua's partner. Mr Kaienua was aged 27; Y was 16. They were together inPanmure in the morning and then in Auckland City, where they were joined by7 R v Wanhalla [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 thereat 1:40pm and the four exited the station and walked towards Queen Street. They werenext 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 atMr A's address in Grey Lynn drinking and playing PlayStation. Mr A had a singleroom including a kitchenette in a lodge boarding house with communal bathroomfacilities. They also went to get takeaways.[23] During most of the day Mr Kaienua was wearing beige pants, a light grey topover a black one, black shoes and a cap or beanie. Y was wearing light grey Adidastrack pants, a black top and Nike slides.[24] At approximately 7:05 pm Mr Kaienua and Y were seen on CCTV arriving atthe 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 blackshoes 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 andpaused across the road for just under two minutes. They then crossed the road towardsthe dairy but walked past it heading back along Great North Road. They returned twominutes later. Y entered the dairy at approximately 7:10 pm.[26] The CCTV inside the dairy shows that Y waited in the dairy for approximatelytwo minutes while two other customers came and went, and as soon as the secondcustomer completed his purchase and left the dairy, about 7:12 pm, Y moved behindthe counter, pulled out a knife and attacked Mr Patel. Y initially pushed or fendedMr Patel with his left hand but quickly escalated to thrusting the knife with his rightto stab him. The CCTV also shows Y trying to pull the cash register drawer open9 A Crown witness to whom I granted name suppression under s 202(1)(a) of the Criminal ProcedureAct 2011.during the attack. Mrs Patel was in the kitchen, out the back of the store. A familyfriend was also there. Mrs Patel saw a man close to her son behind the counter andcame running. She fell as she entered the back of the dairy and cut her forehead. Thefamily friend had heard Mr Patel calling for help and also came into the dairy. MrsPatel ran and grabbed Y who was still struggling with Mr Patel. Y also stabbed MrsPatel and pushed her over.10 Y then ran off. The Patel's family friend ran out of thedairy 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 thedairy from a camera next door. I am satisfied that the CCTV footage of inside andoutside the dairy was matched contemporaneously. The CCTV shows that Mr Kaienuakept walking past the dairy looking down at his phone and stopped near two rubbishbins fixed on the footpath a few metres past the dairy entrance. He put his phone inhis pocket and looked around before leaning back on one of the bins. He stood up andlooked around as a man came off the bus and walked to the dairy (the second customerreferred to above). Mr Kaienua then lent forward over the bin. After just over half aminute, 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 thatMr Kaienua was looking at his phone when Y's attack started. Mr Kaienua looked upbriefly when a car pulled in to park outside the dairy but then looked back down at hisphone.[28] At approximately 7:13 pm Y ran out of the dairy still holding the knife, lookedand gestured left towards Mr Kaienua and ran off to the right along the footpath beforecrossing 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 repositionone foot. After two to three seconds, he straightened up from his position leaning onthe bin for a second or two and then lent back on the bin as the Patel's family friendran out after Y. Mr Kaienua stayed leaning there for another five seconds, until thePatel's family friend went back into the dairy, before straightening up again andwalking off across Great North Road – not directly following Y along that side of the10 Mrs Patel also injured her shoulder. It is not clear whether this occurred when she fell running inor 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 backtowards the corner and down Tuarangi Road looking at his phone.[29] The second customer who had left the dairy just before the attack gaveevidence that he heard a cry for help. He glanced around and saw a struggle so raninto the bottle store next to the dairy and asked for a phone. He walked back into thedairy and, as he did so, Y ran out past him with a knife. He saw Y cross the road andwalk 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 frontof him – in between running and walking – with the knife in his right hand full ofblood. Y had cut himself during the attack when his hand slipped on the knife. ThePatel's family friend said that after Y left quickly he was walking casually and turnedto 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 hisphone.[33] The police followed a blood trail down Tuarangi Road and recovered a knifewith a red handle and a backpack. The blood trail then led back on Great North Roadto Mr A's address where there was also blood. No-one was in Mr A's room. Thepolice found there a kitchen starter set including a set of knives with red handlesmatching the knife recovered on Tuarangi Road. The other two knives still had paperblade 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 cansin the sink.[34] The next morning police located Mr A and Mr Kaienua leaving Mr Kaienua'spartner's place. Mr A was arrested but the police did not suspect Mr Kaienua at that11 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 toY's reference DNA profile. The agreed ESR evidence was that the analysis of theDNA evidence provides extremely strong scientific support for the proposition thatthe DNA of Y was recovered from the back edge of the knife. It is at least 300,000million times more likely that the DNA originated from Y than a random member ofthe public. DNA from at least two people was detected on each blood stain samplefrom other parts of the knife. A DNA profile was identified that corresponded to Y'sreference DNA profile on each of the other samples from the knife. A statisticalanalysis of the likelihood that the DNA originated from Y was not completed for thesesamples 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 identifiedon 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 notcompleted for these samples but the forensic scientist indicated that a similar statisticwould be expected.[37] A DNA profile that corresponded to Y's reference DNA profile was identifiedon 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 notcompleted 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 freezerin the dairy.Mr A's evidence[39] Mr A gave evidence that in his room he heard Mr Kaienua and Y talking aboutrobbing a dairy to get money for something, alcohol or some other things. Mr A saidhe told them not to and they were just being idiots. The other three went outside for asmoke. 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 tofind 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. Theywent out again to find Mr Heta. When they came back, there was some argumentbetween Mr Heta and Y about what Y had done. Mr Kaienua was in the middle tryingto stop it. Y said he had stabbed someone at the dairy and we had to try and findsomething 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 maintainedwhat 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 robberyand 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 robbedthe dairy and stabbed someone. He was asked did he know if therobbery was planned and he said: "No, I didn't. If they had planned itand I knew about it, I would've told them to get fucked because it'sstupid and it's close to my house. I hate that sort of thing."His explanation in cross-examination (for not mentioning the plan inthat statement) was "the more you think about things the more thingscome back to your mind. For me, when I process things it takes me alittle bit of time". But he said his mental health condition (paranoidschizophrenia with anxiety and borderline personality disorder) did notaffect his memory.(c) On 13 November 2018 Mr A was asked about his 21 June 2018statement and said: "I know that they were discussing doing it. But Ididn't know that they took a knife or anything and I told them not to doit. By "doing it" I mean a robbery." In that interview Mr A was askedabout the "Now" text. The police thought he may have been involvedin the robbery. It was suggested in cross-examination that he told policeabout the plan between Mr Kaienua and Y to rob the dairy because thepolice 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 doinga 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] weretalking about doing a robbery because they wanted some money. Theywanted money to buy alcohol or something. I can't remember the exactwords [Mr Kaienua and Y] used but they were saying something like"We should rob the dairy, it'll be easy" Mr A confirmed thatstatement in his evidence.[41] Mr A agreed that before the incident he did not hear any discussion about aknife or see anyone with the knife. Nor did he refer to any discussion about how therobbery 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 officerrecorded that he asked Mr Kaienua if he had a cell phone and Mr Kaienua said it wasnot 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'shouse they started having dramas because Y had cut his bracelet off and Mr Kaienuaand Mr Heta were trying to get him to hand himself in. There was a dispute and Ywanted to go for a walk so Mr Kaienua followed him up to the Grey Lynn shops. Theywere just walking around, they crossed the street, turned around and as they werewalking back Y went into the dairy, Mr Kaienua stayed outside and played onFacebook on his phone. Y came running out with the shopkeeper. Mr Kaienua knewthere was something wrong so he did not run, he just carried on playing on Facebookand walking down towards Mr A's house. Mr Kaienua, Mr A and Heta all wentoutside 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 himselfand had done an aggravated robbery. They were freaked out and arranged an Uberback to Mr Kaienua's partner's house.[44] When asked why he got changed before going out, Mr Kaienua said that theDonald Duck jersey he was wearing got dirty with a big stain so he took it off. He hadhis thermal under it. He took his beanie off and put a hat on just to put different clotheson. He said he changes all the time. When asked why he left his scarf at Mr A's, hesaid he left everything there. But he also acknowledged that was after Y had said hejust did an aggravated robbery. Then he said he leaves stuff wherever he goes. Healso said he had the scarf on his bag so he would not forget it and Mr A must havetaken it off.[45] Mr Kaienua was also asked why they sat across the road for quite some timestaring across at the dairy. Mr Kaienua said they were not staring anywhere, they weresitting 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 Ydid not discuss it with him at all. He said he did not go into the dairy because he justwanted to play on his phone. When Y ran out of the dairy, Mr Kaienua did not runafter 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 thatY 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 Kaienuasaid: "I don't need no chump-arse change from some dairy. You can look at myrecords, 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 thathe knew police were looking for him. He said he was trying to arrange a lawyer. TheCrown accepts he was trying to arrange a lawyer but only several days after theincident. He also said it was "scary". The Crown submits that this is circumstantialevidence, 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 isadmissible but submit it should be given little weight and that I should not assume itindicates guilt.Mr Kaienua's evidence[48] Mr Kaienua gave evidence. He said that on 19 June 2018 they drank alcoholand 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 hehad $60,000. This was in his father's account, but he only needed to ask his father toaccess it. In cross-examination, it was put to him that he could not access that moneyvia 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 recallthe internet loan card found in his wallet when he was arrested. He said a DollarDealers 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 byan 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 hispolice interview where he said he changed because of the stain on his Donald Duckjersey. He said both statements were true.[50] Mr Kaienua said there was no talk about planning to rob a dairy to get somemoney for alcohol. He said he paid for everything, and he has a lot of money. He saidhe 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 atMr A's place because Mr Kaienua and Mr Heta wanted Y to turn himself in. Y foughtMr Heta; Mr Kaienua stopped it and Y ran off. Mr Kaienua ran after him. Mr Kaienuafound 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 theother 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 conversationwith 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 Kaienuaanswered: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 outsideand play on my phone."[53] Later, when Mr Kaienua was being asked about walking past the dairy andturning around and backtracking, he said:Yeah, 'cos – yes that's right because he stopped me and he said, "Bruvs holdup. I'm going into the store." And I said, "Yeah, sweet as, I'm gonna play onmy 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 intoxicatedand playing on my phone. I had been the whole day." Mr Kaienua said he was not alookout. 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 theshopkeeper followed him. But he did not see the knife.[56] Mr Kaienua said he did not go into the dairy to check what had happenedbecause he was scared.[57] Mr Kaienua said he sent the text "Now" to Mr A from Tuarangi St becauseMr A told him to text when he was on the way back when he had found Y. The Crownput 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 7:13pm. The police evidence was that this CCTV footage was accurate to the minute butnot more precise. The time on the CCTV cameras from the ANZ and Unichem wasaccurate and showed Mr Kaienua walking past at 713 pm, so I find that he would havebeen on Tuarangi Road by the time he sent that text as he claimed. The Crown alsoput to him that if Mr A told him to text when he was on the way back with Y, he wouldhave texted before they backtracked to the dairy. Mr Kaienua's answer was that hedidn't send the text until he landed on Tuarangi because that is what his instructionswere from Mr A.[58] When he got back to Mr A's place he saw the injury to Y's hand and blood onthe 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 textedMr Kaienua about his Facebook messages. At 7:01 pm she texted "I just read yhuurFacebook 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 explainedthe 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 therobbery, which he denied. It was also put to him that he misled the police officer aboutthe whereabouts of his phone when he was arrested. He then said the half-sisterwanted 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 andyeah 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 highlyintoxicated at that point. He also said: "Okay, what I mean by my friend being stabbedis 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 stabsomebody 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 jumpedin to separate them; it did not mean helping rob the dairy.[64] In cross-examination, Mr Kaienua said his texts were saying that with thestabbing, Y's hand had been cut open, and that he was highly intoxicated. Then hesaid he sent this while on Tuarangi Road at the top when he was looking for A. Hethen acknowledged that he could not recall where he sent it from. He cannot havebeen on Tuarangi Road as these texts were over two hours later. Mr Kaienua acceptedthe texts (though embellished) related to what happened at the dairy. But he then saidthat "It was out the gate like hard out" meant that Y's hand was so badly damaged, notthe violence which occurred in the dairy. He denied that he embellished the story andwas showing off to his girlfriend. He maintained that "if my mates need a hand thenI'm gona help straight up" referred to the fight between Y and Mr Heta, not thestabbing, 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 notpersuasive. I consider he was referring to Y's attack at the dairy. He was clearlyexaggerating and likely showing off. This says something about his attitude toviolence, but I do not consider these texts really add to whether he was party to theoffences. In this respect, and in relation to Mr Kaienua's denial of involvement moregenerally, I have regard to the warning about the weight given to lies,12 and leavingany rejected evidence to one side and looking at the rest of the evidence beforeconvicting. Some of Mr Kaienua's evidence was straightforward.[66] Mr Kaienua was sending these texts after he knew that Y had stabbed ashopkeeper. Mr Kaienua said he was under the influence of alcohol and drugs. Thetexts do not indicate any concern about the shopkeeper. He also said he was troubledbut scared. There is no indication of that. He sent many more texts that night whichindicate indifference. For example, at 7:36 pm "I mm so blody bord". Later thatevening, Mr Kaienua sends many romantic texts to the other girlfriend. But I amcautious 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 because12 Evidence Act 2006, s 124(3) and (4).he had been released from prison with six months' release conditions and was notallowed 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 wasbecause he was worried Y had implicated him in the robbery. He said the police hadspoken to him that morning as he left his partner's address and let him go. But I notethat was before the police had spoken to Y.[69] He said his text to his partner on 23 June 2018 saying "we both need burntphones" was because he wanted to get a lawyer before he was present before a policeofficer.[70] When asked why he hid from police, Mr Kaienua said he wanted to seek legaladvice because he knew they would put him straight into prison. When asked why hewas 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 sistercontacted him to say that Y had taken his bracelet off and asked him to help look forhim. 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 whenhe saw Mr A. Then Y called out. The mobile phone data and CCTV indicate that theyarranged 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 neededto play him at his own game. They purchased some alcohol. At Mr A's, he said heheard nothing about a robbery. Nor did he see the red-handled knife. He said he triedto convince Y to go back home. They had a conflict and almost a fight. Mr Kaienuatold them to calm down. Mr Heta went to the bathroom for 5-10 minutes and whenhe 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 wentafter him to calm him down. It was put to him that he did not mention this to policewhen interviewed on 20 June 2018. He answered that he did say that to police and noteverything was written down.[73] He said he went up the road to look for Y and the police spoke to him askingabout two males running down in black, saying something about a robbery. He deniedthat 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 Hetawent back to Mr A's place. He saw Y's "big cut". Mr Heta asked Y how he got it andY replied that he fell over and landed on a piece of glass.[75] In cross-examination Mr Heta was asked why he was communicating withMr Kaienua the day after about Y's confession. Mr Heta said:I personally myself wanted to know what was actually going on. Now at thetime I didn't know what was going on. I only heard that my brother had trippedover, fell over on a piece of glass. I didn't realise that he actually done whathe 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 thathe'd stabbed a guy in the dairy, Mr Heta maintained that Y only told him that he fellover and hurt his hand on a piece of glass. Mr Heta said Y must have told them, buthe was not paying attention. He also said he knew Y was lying to him. Mr Heta saidMr 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 thatMr Kaienua didn't say much, but then said:He didn't say – yeah, he just said that Y fell over, something about his handand 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 youmean?" and he goes, "Well he went all Nazi, went up to the store and he fuckinjust went out of control. I didn't know what to do bruv. I tried stopping himbut he was just on his own, pretty much on his own buzz. I think he was morepacked off at the fact that you two were almost gonna have a fight becauseyou 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 neversuggested he tried stopping Y. Further, it did not address any discussion about theextent 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 ofMr Kaienua and Y posing in a vehicle each holding a knife. According to the policeextraction report of data from the mobile phone, these photographs were taken on thatphone on 16 June 2018, three days before the stabbings. Mr Kaienua thought it wasat least a month earlier. That is unlikely given the extraction report but, irrespectiveof exactly when the photographs were taken, it was before the 19 June incident andshows Mr Kaienua and Y together, both holding knives. Mr Kaienua's explanationwas "It's just pretty much Facebook these days."[80] The police also found one of the same photographs in Facebook Messenger onhis partner's phone, received from Mr Kaienua on 24 or 25 June 2018. Mr Kaienuasaid 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 wereplay-acting like gangsters.Analysis[82] Having carefully and impartially considered all the evidence, I am sure that Yintentionally caused grievous bodily harm to Mr Patel by stabbing him and did so withthe intent to rob him. The CCTV shows Y's attack moving Mr Patel away from thecash 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 facilitatehis flight upon the commission of the imprisonable offence of assault with intent torob. Y clearly forced Mrs Patel backwards, stabbing her, and escaped over her as shewas on the ground behind the counter, with Mr Patel trying to hold him by thebackpack.[84] I am also sure that Mr Kaienua was involved in encouraging the robbery andaiding as look-out, for the following reasons.[85] Mr A said he heard Mr Kaienua and Y talking about robbing a dairy to getmoney for alcohol or something else, which would be easy. I bear in mind the needfor caution before relying on Mr A's evidence given the suggestion he has a motive togive false evidence that is prejudicial to Mr Kaienua.13 Even though Mr A did not tellpolice when interviewed in the week after the incident that he heard discussion of theplanned robbery, he said he was probably a bit stoned and drunk, and may have beenmotivated to tell police at the next interview because of the "Now" text; I found hisaccount reliable. He was not an eager witness and did not exaggerate. There was noevidence or indication in his account that his mental health condition affected hismemory. 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 didattempt to rob a dairy soon afterwards. On the other hand, Mr Heta's evidence maynot be inconsistent, as he was out of the room for 5-10 minutes and may have misseddiscussion about a robbery.[86] Too many other facts are consistent with the plan and/or inconsistent with theinnocent explanations:(a) Although Mr Kaienua and Mr Heta emphasised they were trying to getY to go home because he had removed his EM bail bracelet, there wasno 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 littleengagement 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 andscarf. Y wore Mr Heta's running shoes instead of slides. Y had abackpack. Their dress was suitable for the robbery. The wet clothesexplanation was plausible but inconsistent with the explanation given13 Evidence Act 2006, s 122.to police in Mr Kaienua's interview; that explanation was not plausiblegiven 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 isnot clear whether Mr Kaienua did. Just as they walked past, Mrs Patelwalked to the door and Mr Kaienua put his hand up to his mouth.They returned two minutes later. Y was walking slightly ahead, withhis 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 frontof him, without appearing to make contact except for a gesture with Y'sleft hand towards his rear as Y went around. Mr Kaienua kept walkingpast the dairy entrance.(e) As soon as the second customer left, Y moved behind the counter, tookout the knife and attacked Mr Patel. On CCTV the attack clearly lookedpremeditated. Y was like Mr Kaienua's 16-year-old little brother whoMr Kaienua had been out with all day, drinking and smoking drugs inthe afternoon, even though Y had removed his EM bracelet. Given theirrelationship, it is inconceivable that Y would do what he did in the dairywithout warning Mr Kaienua.(f) Mr Kaienua said he was on his phone all day but the CCTV does notindicate that at Panmure, Britomart or the liquor store. The Crown putto him that his close interest in his phone did not start until he walkedup to Grey Lynn at about 7:05 pm – because he was trying not to appearinvolved. Moreover, Mr Kaienua said he told Y he would wait outsidethe dairy and play on his phone, and said in evidence he was playing onhis phone the whole time outside the dairy, but the CCTV footageshows that is incorrect. While at the bins, he was not on his phone thewhole time, as indicated above. He stood up and turned around whenthe second customer approached the dairy from the bus stop. He lookedout that way for over half a minute and then turned back around facingthe other way before taking his phone out again soon after. He lookedup when a car pulled in outside the dairy.(g) Y's look and gesture left towards Mr Kaienua as he ran out of the dairyindicates 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 bysurprise when Y ran out with a shopkeeper running after him. He maywell have seen the knife and Y's bloody hand. Mr Kaienua acceptedthat Y's gesture as he ran out of the dairy was a 'come on, let's get outof here'. If Mr Kaienua had not known what had happened, it wouldhave been a natural reaction for him to look in, especially if he had beenconcerned to keep Y out of trouble as his references to Y handinghimself 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 extremelyintoxicated. There was no visible indication of that on CCTV but thisis not determinative.(j) Even accepting Mr Kaienua had been drinking and did not hear a cryfor help from inside or see the knife or blood when Y ran out, ifMr Kaienua had been surprised and quickly feared being associatedwith something given his dislike of police, I expect that in that momenthe would have shown surprise and fear. But, in that moment, he didnot show any surprise or panic. He looked up from his phone but didnot move except to reposition one foot slightly.(k) Also, once he had computed the situation, and depending on what hefeared Y might have done, the natural reaction would have been to lookin the shop, run after Y or – if he had not wanted to associate himselfwith Y – go in the opposite direction. Instead, he straightened up as ifto move but then leant back on the bin while the person he thought wasthe shopkeeper was nearby, and then wandered off casually – followingafter Y down Tuarangi Road.(l) Mr Kaienua's "Now" text at 7:13 pm, which more likely refers to therobbery than that he was on the way back having found Y.(m) Accepting that Mr Kaienua had a substantial sum in his father'saccount, it may not have been available to him that evening.Mr Kaienua's explanation to police and in evidence that he had no needfor money and that he paid for everything was likely overstated.(n) Mr Kaienua's communication with Mr Heta the next day about theextent of Y's confession, his avoidance of police and his subsequentmisleading statement to police about the whereabouts of his phone werenot well explained. I am conscious that such after-the-event conduct,of itself, may be capable of innocent explanation and does not proveguilt.14[87] Taken all together, these facts and Mr A's account mean that I am sureMr Kaienua was involved in encouraging the robbery and aiding as look-out.[88] Having concluded this, a key remaining question is whether Mr Kaienua knewthat 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 bedthere. It is a small room. Mr Kaienua was there – that is where theydiscussed the robbery. But so was Mr A who did not hear anydiscussion about a knife or see anyone with the knife.(b) As Mr Kaienua accepted, Y is the sort who arms himself with a knifeand Mr Kaienua did not care about that because he posed with Y in thephotos 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 armhimself with a knife for the planned robbery without telling Mr Kaienuabefore he went into the dairy.(d) The knife was used proactively and early in the attack – not presentedto threaten Mr Patel to get away or hand over money, nor left in Y'spocket just in case the robbery got out of hand. Using the knife wasplanned, at least by Y.(e) Taking these circumstances together, Mr Kaienua must have known Yhad a knife.[89] In these circumstances, I cannot be sure that Mr Kaienua knew the plan wasfor Y to use the knife to intentionally cause grievous bodily harm to Mr Patel bystabbing him or to wound Mrs Patel with the intent to facilitate flight such thatMr 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 thedairy 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 unlawfulgoal. 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 thatplan – that there was a real possibility the knife could be used intentionally and thoseinside the dairy could be stabbed.16Conclusion[91] For these reasons, Mr Kaienua is guilty of both the charge of assault (grievousbodily harm) with intent to rob and the charge of aggravated wounding.________________________________Gault J15 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].