KURU v R [2023] NZCA 150

KURU v R [2023] NZCA 150 [5 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA182/2022[2023] NZCA 150BETWEEN DAMIEN SHANE KURUAppellantAND THE KINGRespondentHearing: 26 October 2022; (further submissions 22 February 2023)Court: Collins, Muir and Cull JJCounsel: C W J Stevenson and J H C Waugh for AppellantS K Barr and H S Cunningham for RespondentJudgment: 5 May 2023 at 9.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONSCollins and Muir JJ [1]–[81]Cull J (dissenting) [82]–[123]COLLINS AND MUIR JJ(Given by Collins J)Introduction[1] On 21 August 2018 Mr Ratana was shot dead at his partner's home at144 Pūriri Street, Whanganui. Mr Ratana, who was a member of the Mongrel Mob,was shot after a number of Black Power members went to his partner's home withfirearms and other weapons to intimidate Mr Ratana and persuade him to leave theneighbourhood. Black Power considered the area where Mr Ratana was staying astheir territory.[2] Mr Damien Kuru (Mr Kuru), who was the president of the local chapter of theBlack Power, was not part of the group who went to Pūriri Street. He initiallyremained at 60 Matipo Street, located approximately 300 metres from whereMr Ratana was shot. That address was Mr Kuru's home and the Black Powerheadquarters. Before the shooting Mr Kuru walked a short distance along MatipoStreet towards the local school. At about the time of the shooting Mr Kuru was seenon Tiki Street, which links Pūriri and Matipo Streets. At that stage he was about100 metres from where Mr Ratana was shot.[3] Seven Black Power members were charged with having murdered Mr Ratanaand with participating in an organised criminal group. Before trial, Mr Rogerson, oneof the defendants, pleaded guilty to being a party to murder. Three other defendants(Messrs Box, Fantham-Baker and Anthony Kuru) pleaded guilty to manslaughter.Mr Newton, one of the seven originally charged with Mr Ratana's murder, had thecharge against him dismissed pursuant to s 147 of the Criminal Procedure Act 2011.Mr Box and Mr Anthony Kuru also pleaded guilty to participating in an organisedcriminal group. Mr Friesen was also involved, but was granted immunity fromprosecution and gave evidence for the Crown at the trial.[4] Mr Kuru and Mr Runga, the Sergeant-at-Arms and a senior member of thelocal Black Power chapter, proceeded to trial and were found guilty of having beenparties to the manslaughter of Mr Ratana. The charges against them of havingparticipated in an organised criminal group were dismissed pursuant to s 147 of theCriminal Procedure Act.[5] Mr Kuru was sentenced by Ellis J on 24 February 2022 to five years andtwo months' imprisonment.1 He appeals only his conviction.1 R v Kuru [2022] NZHC 309 [Sentencing notes] at [56].[6] Three grounds have been advanced in support of the appeal:(a) The jury's verdict was unreasonable and not supported by the evidence.(b) Ellis J erred when she allowed the Crown to adduce evidence fromDetective Inspector Scott about the structure and chain of command ofgangs in New Zealand. That evidence was relied upon by the Crownwhen it submitted to the jury Mr Kuru must have approved of andsupported the plan to intimidate Mr Ratana.(c) Ellis J misdirected the jury on the pre-requisites to being a party tomanslaughter.[7] We must allow the appeal if we are satisfied either:2(a) the jury's verdict was unreasonable; or(b) a miscarriage of justice has occurred for any reason.[8] The relevant parts of the definition of miscarriage of justice set out in theCriminal Procedure Act state:3miscarriage of justice means any error, irregularity, or occurrence in or inrelation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial The shooting of Mr Ratana[9] The conflict between Mr Ratana and Black Power commenced whenMr Ratana started living with Ms Herewini, whose home was within an areacommonly regarded as Black Power territory in the Whanganui suburb of Castlecliff,sometimes referred to by locals as the "Cliff".2 Criminal Procedure Act 2011, s 232(2).3 Section 232(4).[10] The clashes between Black Power and Mr Ratana included Black Powermembers carrying out "drive-bys" of Ms Herewini's home while shouting outBlack Power slogans. On 14 August 2018 there was an encounter between Mr Ratanaand members of Black Power, when a crowbar was thrown at Mr Ratana's car.Mr Ratana responded by producing a firearm, thereby causing the Black Powermembers to back down. Ms Herewini explained at the trial that she and Mr Ratanadecided to move from Castlecliff after this incident. Unfortunately, however, theevents of 21 August 2018 prevented those plans from taking effect.[11] On the morning of 21 August 2018, members of Black Power began preparingto intimidate Mr Ratana. At about 8.50 am, Mr Runga went to visit Mr Friesen who,at the time, was a member of Black Power. Mr Friesen was staying at 73 MatipoStreet. Mr Runga told him there was going to be a "rumble" at "that house on Pūriri".Mr Runga showed Mr Friesen a sawn-off double-barrel shotgun that was on the floorof the Nissan Primera he was driving and told him to meet the others at Matipo Street,meaning outside Mr Kuru's house. Mr Friesen was subsequently granted immunityfrom prosecution and gave evidence for the Crown at the trial.[12] Mr Runga and Mr Fantham-Baker, whose house was also on Matipo Street,then drove to Mr Runga's address in Rimu Street, Castlecliff. Present at Mr Runga'shouse were Mr Newton and Mr Box. Mr Rogerson and Mr Anthony Kuru arrived atMr Runga's address shortly thereafter. The group gathered together more weaponsand took some bandanas to disguise themselves.[13] At about 9.20 am the Black Power group left Mr Runga's home in theNissan Primera and a Holden Commodore. Those in the Nissan Primera initiallydrove to 144 Pūriri Street where the vehicle stopped. One member of the gang got outof the car and started directing abuse towards the occupants of Ms Herewini's house.The attempt to intimidate Mr Ratana was disrupted, however, when a bus stoppedclose to 144 Pūriri Street. The Black Power group then drove to Matipo Street andparked adjacent to Mr Kuru's house.[14] A group of Black Power members, including Messrs Box, Fantham-Baker andAnthony Kuru, then walked from 60 Matipo Street (Mr Kuru's home) to 144 PūririStreet (Ms Herewini's home). They were armed with poles, batons, and a hammer. Inthe meantime, Mr Rogerson drove in the Holden Commodore and parked inPūriri Street near Ms Herewini's home. Mr Runga drove the Nissan Primera and alsoparked close to Ms Herewini's home. They were followed by Mr Friesen who was ina Hyundai Coupé. Mr Runga still had possession of the sawn-off double-barrelshotgun, while Mr Rogerson had a full-length shotgun. Both shotguns were loadedwith cartridges containing conventional lead shotgun pellets.[15] When the Black Power members who walked to 144 Pūriri Street arrived atthat address, Anthony Kuru yelled out to Mr Ratana "you've got a week to get out ofthe Cliff or you're dead".[16] The men on foot moved up the driveway and began to strike Mr Ratana's carwith their weapons.[17] At about 9.35 am Mr Ratana came out of Ms Herewini's home. He wascarrying a sawn-off loaded shotgun and he was wearing Mongrel Mob regalia. Mostof the Black Power members took cover. One member of the Black Power group fireda shotgun that was loaded with a single lead slug. The slug hit Mr Ratana in the neckand instantly killed him. The weapon that fired the slug has never been recovered.Mr Rogerson then fired two shots from his shotgun at the house, spraying it withpellets. Those shots were intended to provide cover to the members of theBlack Power group who were on foot and needed to get away from the scene.[18] Members of the Black Power group quickly dispersed. Messrs Box,Fantham-Baker, and Anthony Kuru quickly walked back to the vicinity of Mr Kuru'saddress where Mr Runga was waiting in the Nissan Primera. All three got into thatvehicle and left the area. Mr Newton left on foot while Mr Friesen drove away in theHyundai and Mr Rogerson drove away from the scene in the Holden Commodore.Mr Kuru[19] The Crown case was presented on the basis that, as president of the localchapter of Black Power, Mr Kuru must have known about the gang's intention tointimidate Mr Ratana into leaving the area and that he would also have approved ofthe plan. The Crown accepted, however, there was no evidence of Mr Kuru havingplayed a direct role in either the formation of the plan to intimidate Mr Ratana or itsexecution.[20] A significant portion of the Crown's case against Mr Kuru hinged upon theevidence of Detective Inspector Scott concerning gangs in New Zealand. We willexplain the key parts of that evidence at [27] to [29].[21] As we have noted at [2] Mr Kuru was seen on Tiki Street at about the time ofthe shooting. The jury were shown photographs taken by a member of the public,showing four men walking from Tiki Street into Matipo Street shortly after the shotswere fired. Mr Kuru was seen walking towards his property ahead of the men whocame from Tiki Street. Another photograph shows Mr Kuru standing behind the fenceof his property just before the Nissan Primera left the area. The civilians who sawthose events agree there was no interaction between Mr Kuru and the four Black Powermembers who walked from Tiki Street and headed towards the Nissan Primera parkedin Matipo Street.[22] When sentencing Mr Kuru, Ellis J said the following:4(a) She was sure Mr Kuru knew Mr Ratana "had effectively been livingaround the corner for quite a few weeks".(b) Mr Kuru "knew that there had been humiliating confrontations between[Mr Ratana] and some [Black Power] members."(c) The Judge doubted Mr Kuru "had any advance notice of what wasplanned that morning".(d) "[T]he jury must have inferred from the arrival of the cars and thecongregation of a group of armed gang members, more or less outside[Mr Kuru's] house, and [his] actions in then following them down4 Sentencing notes, above n 1, at [18].Matipo Street and partially up Tiki Street" meant that Mr Kuru "foundout pretty quickly what was going on."(e) "[T]he jury by their verdicts must have found that once [Mr Kuru] hadthat knowledge, and by dint of [his] presence and [his] innate authority,[he] effectively encouraged the other participants to execute their plan".[23] Ms Smith is the principal of the school situated on Matipo Street, the entranceto which is about 150 metres from Mr Kuru's house. She was called as a witness bythe Crown and explained Mr Kuru was scheduled to attend a meeting with a teacherat the school at 10.00 am on the morning of 21 August 2018. It was submitted onbehalf of Mr Kuru that meeting explained why he was on Matipo Street at about9.35 am and that he was diverted into Tiki Street by the sound of loud voices comingfrom Pūriri Street just before the shots were fired at Ms Herewini's house. The Crownargued, however, that Mr Kuru could easily have kept the 10.00 am appointment if hehad left his house well after 9.35 am. The Crown argued that Mr Kuru was close toPūriri Street because he was anticipating the attack on Ms Herewini's house and waskeeping an eye on proceedings, albeit from a distance.[24] The jury also heard evidence that Mr Kuru was told about the shooting bypolice during the course of the afternoon of 21 August and that he immediately got hisfamily to a safe location and barricaded his house.[25] Mr Friesen said in his evidence that the day after the shooting Mr Kuru calleda meeting of Black Power members. He said Mr Kuru was very angry during thecourse of that meeting and wanted to know what had happened to Mr Ratana and whowas responsible for the shooting. The defence submitted this was compelling evidencethat Mr Kuru played no role in the attack on Mr Ratana. The Crown argued, however,that Mr Kuru's conduct during the meeting on 22 August 2018 was a ruse designed toprovide evidence to support his position. In any event, said the Crown, Mr Kuru wasphotographed walking away from the general vicinity of the shooting on 21 Augustand must have known what had happened on Pūriri Street. Mr Friesen also said in hisevidence that Black Power members knew there was a serious possibility theMongrel Mob would retaliate for the attack on Mr Ratana.[26] Mr Kuru did not give evidence. He told the police, however, that he hadnothing to do with Mr Ratana's death and that he was on his way to meet a teacher athis son's school when he heard the shots that were fired at Ms Herewini's house.Evidence about gangs[27] Detective Inspector Scott who, at the time of giving his evidence was amanager in the National Criminal Investigation Crime Group at Police NationalHeadquarters, had spent most of his professional career in the Criminal InvestigationBranch in the Gisborne area. He prepared "[his] statement as a [d]etective withnumerous years' experience investigating gang related activity."[28] Detective Inspector Scott's initial brief of evidence asserted that:39. The President is the figurehead of the gang or chapter, and is thechairman at meetings.41. He is a senior member who has developed into the recognised leaderusually through a combination of personal strength, leadership skillsand personality. He has the final authority over all chapter businessand its members.42. An organised gang crime against another gang would only occur withthe sanction of the president.43. The president's authorisation would be required due to the obviousrisks and consequences that the particular gang would be exposed towhich would likely include intense scrutiny by the [p]olice andserious retaliation by the opposing gang.[29] Prior to trial, Ellis J ruled aspects of the paragraphs we have set out above couldnot be adduced by the Crown. The Judge said that:5 to the extent [Detective Inspector] Scott wishes to opine on the matters inparagraphs 42 and 43 [of his brief], they need to be reframed in a morecontingent way, and by reference to his experience ("in my experience it isunlikely that ").Accordingly, in his evidence at trial, Detective Inspector Scott said:5 R v Fantham-Baker [2021] NZHC 2632 at [18].In my experience a (serious) organised gang crime against another gang wouldlikely occur with the sanction of the president. This is due to the obvious risksand consequences that the particular gang would be exposed to which wouldlikely include intense scrutiny by the [p]olice and serious retaliation by theopposing gang.[30] Mr Keegan, counsel for Mr Kuru at trial, did not cross-examineDetective Inspector Scott. A brief of evidence had been obtained by the defence teamfrom Dr Jarrod Gilbert, an expert on gang culture in New Zealand, but Dr Gilbert wasnot called as a witness at the trial.[31] In its closing address, the Crown relied extensively on Detective InspectorScott's evidence. Mr Wilkinson-Smith, senior counsel for the Crown, commenced hisclosing address by saying: I want to start with the evidence from the gang expert, Detective InspectorCraig Scott, because this is a gang shooting and it's that gang context that Isuggest this whole event needs to be looked at and considered in. That's thelens, if you like, that we should look through to understand what has gone onhere and put briefly, Detective Inspector Scott provides us with that lens.Here we have, from Detective Inspector Scott, the undisputed reality of whatgangs are actually like in New Zealand and particularly the Black Power andMongrel Mob. You'll remember he told us he's an expert because he's workedin the field of policing with gangs in the last 30 years and has become anational expert but really he told us the core of his experience comes from hiswork as a policeman, I think, in Gisborne, and particularly working with theMongrel Mob and Black Power there and getting to know that world. So justto remind you I'm going to go through and look at the evidence that puts thisinto the gang context and tell you about what Detective Inspector Craig Scottsaid about the gang context. he spoke about how attending gang meetings and obeying the orders ofsenior members of the gang, how essential that was. And then of course hetalked about the particular roles of the senior members, the role of thepresident The next I think is particularly important for Mr Kuru one of thedefendants, because his view was that, sorry, Detective Inspector Scott's viewof the role of the president was that he has the final authority over all chapterbusiness and its members. So final authority over all chapters' business andit's going to be obvious what I'm going to suggest to you as judges of factsthat you'll find it obvious that [Mr] Ratana, a Mongrel Mob gang member, therival of the Black Power living on Black Power turf, on their turf, would havebeen absolutely at the top of their agenda.[32] In her summing up, Ellis J gave the jury the standard directions about thepurpose of expert evidence and how it could be considered by the jury. The Judgethen said the following in relation to Detective Inspector Scott's evidence:[46] You might want to think about what I've just said particularly inrelation to the gang expert, Detective Scott. His evidence is quite an importantplank of the Crown case against Mr Kuru in particular. But when decidingwhat use you can make or weight you can place on it, you need to think aboutwhat Mr Keegan said about that too. Detective Scott was giving generalisedevidence based on his evidence as a police officer of working with—and asMr Keegan would put it, against—gangs in New Zealand. He did not sayanything specific about Black Power Wanganui, and he did not say anythingspecific about Mr Kuru or, indeed, Mr Runga. His evidence was not based onor specifically related to the facts of this case. You are the ones who knowabout those. So, despite Detective Scott's general expertise, you need to thinkabout what weight his evidence can carry, the extent to which his generalisedevidence can help you draw any specific conclusions about Mr Kuru's role inthe events relevant to this case.(emphasis in original)First ground of appeal: Was the jury's verdict unreasonable?[33] Before the trial Mr Kuru applied to have the charges against him dismissedpursuant to s 147 of the Criminal Procedure Act. It was argued on behalf of Mr Kuruthere was not sufficient evidence to enable a properly directed jury to reasonablyconvict him.[34] That application was dismissed by Thomas J.6 At the time, the defence wereintending to call evidence from Dr Gilbert, who said in his brief of evidence thatcaution should be exercised when considering the evidence of Detective InspectorScott's reliance on traditional views of gangs. Dr Gilbert said gang skirmishes occurwith little planning and quickly escalate out of control. Dr Gilbert said that a presidentof a gang will not inevitably be able to exercise authority over a rebellious and difficultgang member. As we have noted, however, Dr Gilbert was not called as a witness atthe trial.6 R v Kuru [2019] NZHC 2317.[35] In dismissing the s 147 application Thomas J reasoned that any conflict orchallenge to the evidence of the various eyewitnesses and the expert witnesses wouldbe for the jury to resolve.7[36] At the conclusion of the Crown case Ellis J dismissed another applicationbrought by Mr Kuru pursuant to s 147 of the Criminal Procedure Act. The Judge hasnow provided the reasons for her decision.8[37] In summary, Ellis J was satisfied that there was sufficient evidence for the juryto reasonably convict Mr Kuru. The Judge said that if "[v]iewed holistically", theevidence relied upon by the Crown was "capable of supporting the inference thatMr Kuru knew about the plan [concerning Mr Ratana] and sanctioned it."9[38] Ellis J summarised in the following way the evidence relied upon by the Crownwhen opposing the s 147 application:10(a) It was an undisputed fact that Mr Kuru was the president ofWhanganui Black Power and was acting in that capacity at therelevant time.(b) The jury had heard the expert evidence of Detective Scott about therole usually played by a gang president. Detective Scott had said that,in his experience, any confrontation with a rival gang would "likely"occur with presidential sanction.(c) The circumstances leading to Mr Ratana's death—and in particularthe series of confrontations between him and members of theWhanganui Black Power chapter—in the months before the shooting,were circumstances of a kind that (Detective Scott opined) would havebeen known, and would have been of concern, to Mr Kuru aspresident.(d) There was evidence placing Mr Kuru at or near his home at 60 MatipoStreet, which was just a few hundred metres around the corner from144 Puriri Street, in the 24 hours leading up to the final and fatalconfrontation.(e) There was evidence about the role played that morning by Mr Kuru'sco-defendant, Mr Runga, who (the Crown said) was acting asMr Kuru's sergeant at arms. Mr Runga was an obvious potentialconduit of information about the plan both to and from Mr Kuru.7 At [36]–[37].8 R v Kuru [2023] NZHC 129.9 At [11].10 At [8] (footnotes omitted).(f) The number of Black Power men involved in the confrontation(between five and seven) made it more likely the president wouldknow and need to sanction their activities.(g) There was strong direct evidence placing Mr Kuru very close to thescene at the time of the shooting, namely:(i) the undisputed location of Mr Kuru's home in Matipo Street,from which vantage point he could have watched as the menand cars assembled there prior to the attack (either fromoutside his home or using the CCTV cameras he had installedthere);(ii) the undisputed evidence that Mr Kuru walked up Tiki Streettowards Puriri Street just prior to the shooting and was onTiki Street when the shooting occurred;(iii) the evidence of Mr Kuru walking quickly back toMatipo Street after the shots were fired, just 10 to 15 secondsahead of the other Black Power men as they fled from thescene; and(iv) the undisputed evidence that Mr Kuru then watched from athis gate on Matipo Street as the men returned there (there isa photograph of him by his gate at this time).[39] When discussing the defence arguments in support of the s 147 application,Ellis J noted:11 there were other, innocent, reasons for Mr Kuru to be on Tiki Street at thetime of the attack. There was evidence that he had been walking to anappointment at 10 o'clock that morning at his son's school and had beendiverted up Tiki Street when he heard noise coming from Puriri Street. the evidence of Mr Friesen that, after the shooting, Mr Kuru called ameeting where he was angry and demanded to know who was responsible. [40] The Judge observed, however:12(a) The evidence of the school appointment did not mean the alternative(Crown) inference (that he went there to keep an eye on his "troops"from a safe distance) could not safely be drawn. (b) The reliability of Mr Friesen's evidence overall was a very live issueat trial. Mr Friesen was a Crown immunity witness whose credibilitywas the subject of a wholesale and sustained defence attack by counselfor Mr Runga.11 At [14]–[15].12 At [16].[41] There is some overlap between the test to dismiss a charge under s 147 of theCriminal Procedure Act and the ground of appeal in s 232(2)(a) of the CriminalProcedure Act, which permits an appeal to be allowed if the verdict was unreasonablehaving regard to the evidence.[42] In Owen v R, the Supreme Court said the following about the ground of appealin s 385(1)(a) of the Crimes Act 1961 which was, in all material respects, the same ass 232(2)(a) of the Criminal Procedure Act:13A verdict will be unreasonable if, having regard to all the evidence, the jurycould not reasonably have been satisfied to the required standard that theaccused was guilty.[43] The Court in Owen also explained:14(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.(f) An appellant who invokes s 385(1)(a) [now s 232(2)(a)] mustrecognise that the appellate court is not conducting a retrial on thewritten record. The appellant must articulate clearly and precisely inwhat respect or respects the verdict is said to be unreasonable andwhy, after making proper allowance for the points made above, theverdict should nevertheless be set aside.[44] After receiving Ellis J's reasons for dismissing the s 147 application, counselfor Mr Kuru and the Crown filed further submissions in this Court.[45] Mr Stevenson submitted there is a crucial difference between the analysisrequired under s 147 and the test for allowing an appeal under s 232 of the Criminal13 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [5].14 At [13], citing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 per Glazebrook J.Procedure Act. He explained the test under s 147 is whether a properly directed jury"could" not reasonably convict a defendant. According to Mr Stevenson, theassessment under s 232 is not whether the jury could have convicted the appellant, butwhether or not they ought to have done so. Mr Stevenson said this was "an altogetherdifferent test."[46] We do not accept Mr Stevenson's analysis. The test under s 232 is whether thejury's verdict was unreasonable having regard to the evidence. Inquiring into what thejury ought to have done risks this Court substituting its view of the guilt or innocenceof the defendant for that of the jury. Such an approach would be contrary to what theSupreme Court said in Owen v R:15[17] There is, in the end, no need to depart from the language ofParliament. The question is whether the verdict is unreasonable. That is thequestion the Court of Appeal must answer. The only necessary elaboration isthat expressed earlier, namely that a verdict will be unreasonable if, havingregard to all the evidence, the jury could not reasonably have been satisfied tothe required standard that the accused was guilty. We do not consider it helpfulto employ other language such as unsafe, unsatisfactory or dangerous toconvict. These words express the consequences of the verdict beingunreasonable. They should not be used as tests in themselves.[47] The following are the principal reasons why we conclude the jury's verdict wasnot unreasonable. The jury could reasonably have inferred:(a) Mr Kuru would have had knowledge of major activities of members ofthe Black Power in Whanganui by virtue of the fact that he waspresident of the local chapter of Black Power.(b) Mr Kuru would have known about the ongoing confrontation betweenmembers of Black Power and Mr Ratana over him living inBlack Power territory and that there had been an incident the previousweek during which Mr Ratana caused members of Black Power to backoff from their attempts to intimidate him.(c) Mr Kuru would have been likely to have seen Black Power membersassemble in Matipo Street outside his house and realise they were15 Owen v R, above n 13.planning on heading towards the house in Pūriri Street whereMr Ratana lived. He would also have anticipated that Black Powermembers were carrying weapons to counteract the possibility ofMr Ratana again producing a firearm.(d) The attack on Mr Ratana was planned and, to some degree, coordinated.(e) Mr Kuru was in Tiki Street before the shots were fired. His presencein Tiki Street involved him making an unnecessary detour from walkingto his son's school.(f) He was in Tiki Street because he anticipated trouble and he was keepinga supervisory eye on the members of his chapter, albeit from a distance.(g) By being present in Tiki Street, Mr Kuru knowingly encouragedBlack Power members to carry out the attack on Mr Ratana.(h) Mr Kuru's conduct during the Black Power meeting on 22 Augustduring which he expressed anger over the shooting of Mr Ratana wasan effort by him to deflect attention away from his conduct the previousday.[48] We have had the opportunity to consider the dissenting judgment of Cull J. Wemake the following observations about her reasons for concluding the jury's verdictwas unreasonable:(a) While there was no direct evidence Mr Kuru was involved in the planto "rumble" the house where Mr Ratana was staying, there wascircumstantial evidence that he knew of and supported the plan. Weconsider that it is possible for a Crown case to comprise entirely ofcircumstantial evidence, and for a jury to reasonably return a guiltyverdict on the basis of that evidence.(b) It was for the jury to assess the circumstantial evidence. As we haveemphasised, it is not our role to substitute our view of the evidence forthat of the jury provided there was sufficient evidence for the jury tohave reasonably convicted Mr Kuru.For the reasons we have explained, we are satisfied, after having regard to all theevidence, that the jury's verdict was not unreasonable.Second ground of appeal: Was Detective Inspector Scott's evidence admissible?[49] The second ground of appeal may be conveniently distilled to the followingthree contentions:(a) Courts should be hesitant to allow police officers to give expertevidence about gangs because they lack the independence demanded ofexperts.(b) Detective Inspector Scott did not demonstrate sufficient expertise to bean independent expert in relation to the issue in dispute in this case. Hisevidence therefore lacked probative value and was highly prejudicial.(c) The modified evidence given by Detective Inspector Scott resulted inhim "effectively provid[ing] the jury with an expert view about theultimate issue in this case".[50] As we have noted at [31] and [32], the Crown relied extensively on theevidence of Detective Inspector Scott concerning:(a) the structure and chain of command of New Zealand gangs, such asBlack Power and the Mongrel Mob;(b) the role of the president in such gangs; and(c) the strong likelihood of the president of one gang having to authoriseany plan to intimidate a member of a rival gang.[51] When Ellis J ruled before trial that Detective Inspector Scott's modifiedevidence was admissible, she explained:16(a) Detective Inspector Scott was an expert on gang structures and chainsof command. Indeed, his status as such was not contested in theHigh Court.(b) Gang structures and the duties and responsibilities of gang memberswas a relevant issue in the trial.(c) The jury were likely to obtain substantial help from Detective Scott'sevidence particularly as jurors would be unlikely to be familiar withgang structures and command chains.[52] The proposed evidence from Detective Inspector Scott, as modified in the waywe have set out at [29], therefore satisfied the criteria for the admissibility of expertevidence set out in s 25(1) of the Evidence Act 2006 and was therefore able to beadduced by the Crown.Police officers providing expert gang evidence[53] Mr Stevenson, senior counsel for Mr Kuru in this Court, did not go so far as toargue police officers should never give expert evidence for the Crown on gang issues.Rather, Mr Stevenson said Courts should be cautious about allowing police officers togive expert evidence and that Ellis J failed to exercise the requisite level of caution inthis case.[54] In Thacker v R, this Court held Detective Inspector Scott could give expertevidence in a trial of three defendants who were facing a number of charges of rape.17The Crown adduced evidence from the Detective Inspector concerning thecharacteristics and customs of the Tribesmen gang to support its contention that thealleged rapes were conducted on the instructions of a patched member of theTribesmen gang and complied with by the defendants as a prerequisite to their16 R v Fantham-Baker, above n 5, at [15].17 Thacker v R [2019] NZCA 182.admission to the Tribesmen gang. Mr Stevenson did not challenge the appropriatenessof this Court's decision in Thacker. Mr Stevenson acknowledged that in that caseDetective Inspector Scott's evidence provided contextual information to help the juryinterpret the direct evidence concerning the instruction to the defendants to rape thecomplainant. Mr Stevenson said that situation was different from the case before usbecause Detective Inspector Scott's evidence in Thacker informed the jury why thedefendants might rape someone just because another person told them to do so.Understanding the dynamics of gang culture and admission to a gang helped explainthat aspect of the Crown case in Thacker.[55] In the United Kingdom, questions about the appropriateness of police officersproviding expert evidence in criminal trials has been settled. For example, in R vOakley, Lord Widgery CJ stated on behalf of the Court of Appeal of England andWales:18 we would like to make it quite clear straight away that there is no questionof a police officer being prevented from giving evidence as an expert if thesubject in which he is giving evidence as an expert is a subject in which hehas expert knowledge, and if it is restricted and directed to the issues in thecase.[56] Similarly, in Myers v R,19 the Privy Council said, when determining an appealfrom Bermuda, that police officers may give evidence about gangs provided theysatisfy the usual qualifications required of an expert and adhere to the rules that governthe giving of expert evidence.20 The Privy Council recognised that it can be difficultfor a police officer to be an expert when they are effectively combining the duties ofan investigator with that of an expert:21It is particularly important that such a witness should fully understand thatonce he is tendered as an expert he is not simply a part of the prosecution team,but has a separate duty to the court to give independent evidence, whicheverside it may favour.[57] In questioning the appropriateness of Detective Inspector Scott givingevidence in this case, Mr Stevenson drew support from a dissenting judgment of the18 R v Oakley (1980) 70 Cr App R 7 (Crim App) at 9–10.19 Myers v R [2015] UKPC 40, [2016] AC 314.20 At [57].21 At [60].United States 10th Circuit Court of Appeals in which the appellant argued a trial courterred when it allowed a police officer to give expert testimony about gangs.22 As wasnoted however in the dissenting judgment, in appropriate circumstances lawenforcement officers can give evidence about gang associations in federal trials in theUnited States.23[58] We agree with the approach taken by this Court in Thacker and by thePrivy Council in Myers. Police officers may be qualified as experts and be permittedto give expert evidence provided the usual rules concerning the qualification of expertsand the way they give their evidence is strictly adhered to.[59] In the present case, Detective Inspector Scott qualified himself as an expert inrelation to gang structures and culture in New Zealand. He has extensive experiencein this area of police investigation. The evidence which Detective Inspector Scott gavewas relevant to an issue in the trial and, as Ellis J determined, his evidence was likelyto be substantially helpful to the jury who were unlikely to have been familiar withgang structures and culture in New Zealand.[60] We therefore conclude that Detective Inspector Scott was not disqualified fromgiving expert evidence in the trial simply because he was a police officer.Detective Inspector Scott's ability to give evidence about the Whanganui Black Power[61] The second point urged upon us by Mr Stevenson was that Detective InspectorScott was not qualified to give evidence about the Whanganui chapter of theBlack Power. Mr Stevenson submitted that the culture and power structures of gangsvaries from region to region in New Zealand. He referred to Dr Gilbert's brief ofevidence prepared for the trial to support this proposition.[62] The difficulties with this part of Mr Stevenson's argument can be succinctlystated. First, Detective Inspector Scott's evidence was not challenged at trial. Heexplained his expertise. No issue was taken with his ability to be able to comment onthe structures and culture of the Black Power, Whanganui. Had there been a challenge22 United States v Archuleta 737 F 3d 1287 (10th Cir 2013).23 At [1300].to that evidence, perhaps supported by the proposed evidence from Dr Gilbert, thenwe would be better positioned to assess whether or not Detective Inspector Scotttrespassed beyond his area of competence when commenting on the command andcontrol structures of the Black Power in Whanganui.[63] Second, as we have noted, Dr Gilbert did not give evidence at the trial. Noapplication was made to adduce further evidence, and even if we were to allowDr Gilbert's brief to be adduced as fresh evidence before us, the Crown has had noopportunity to challenge Dr Gilbert's evidence.[64] We therefore reject the argument that Detective Inspector Scott's evidencelacked probative value in relation to the culture and power dynamics of the WhanganuiBlack Power. The evidence was relevant and not inadmissible under s 7 of theEvidence Act.[65] We accept Detective Inspector Scott's evidence was prejudicial to Mr Kuru. Itwas, however, not unfairly prejudicial primarily because Ellis J provided very cleardirections to the jury on what permissible use they could make of theDetective Inspector's evidence.[66] We therefore conclude that Detective Inspector Scott had the ability to giveevidence about the Whanganui Black Power.Answering the ultimate question[67] The modified evidence of Detective Inspector Scott went close to answeringthe ultimate question but did not actually do so. His evidence was sufficientlygeneralised to lead us to conclude that the Detective Inspector did not tell the jury thatMr Kuru must have known of the plan to intimate Mr Ratana and approved of thatplan before it was executed.[68] The Crown Solicitor tested the boundaries by the way he commenced hisclosing address to the jury. As we have previously noted, however, Ellis J directed thejury on the proper way in which to treat Detective Inspector Scott's evidence. She didso in a way that counterbalanced the robustness of the prosecutor's approach.[69] We have considered Cull J's discussion of Detective Inspector Scott'sevidence. We understand her position to be that whilst the evidence was admissibleunder s 25 of the Evidence Act, the use and effect of the evidence was unfairlyprejudicial because it accompanied a solely circumstantial case and became a coreplank of the Crown case and that, this meant the jury's verdict was unreasonable.[70] We respectfully disagree. Unfair prejudice arising from the evidence hasalready been assessed when it was ruled admissible. In the present case, the trial Judgewas clearly alive to the prejudicial effect of the evidence when she made the changesto the evidence and gave directions to the jury about how they could make legitimateuse of that evidence. In our view, if the evidence was unfairly prejudicial in its useand effect then it follows that it should have been excluded under s 8 of the EvidenceAct.[71] We agree, however, with the findings of the trial Judge that the evidence wasadmissible despite some prejudice arising. Once it was found that there was no unfairprejudice sufficient to warrant exclusion under s 8, the evidence is available to the jury(subject to appropriate judicial directions) and they can draw permissible inferencesfrom that evidence to support the Crown's case. We accordingly do not agree withCull J that the jury's reliance on admissible evidence was unreasonable.Third ground of appeal: Were the jury misdirected on the prerequisites to beingguilty as a party to manslaughter?[72] The third ground of appeal engages s 66(2) of the Crimes Act, which provides:66 Parties to offences(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.[73] In her summing up to the jury and in her oral directions, Ellis J told the jurythat, amongst other things, the jury needed to be sure:(a) Mr Kuru, together with at least one other person, formed a commonintent to prosecute an unlawful purpose and to assist eachother/participate in that unlawful purpose.(b) Mr Kuru had formed a common intention to threaten Mr Ratana anddamage his property, accompanied with firearms.(c) Mr Kuru needed to appreciate or foresee that as a probable consequenceof prosecuting the common purpose there would be an unlawfulshooting.[74] Mr Stevenson submitted Ellis J erred:(a) by failing to direct the jury that in order to be found guilty ofmanslaughter under s 66(2) Mr Kuru needed to foresee the risk of deathas a probable consequence of prosecuting the common purpose, notmerely an unlawful shooting; and(b) by directing that a "probable consequence" was something that "couldwell happen".Whether Mr Kuru needed to foresee the risk of death to be a party to manslaughter[75] In Edmonds v R, the Supreme Court found it unnecessary to deliver the finalword on the level of knowledge required of a defendant before they could be convictedof being a party to manslaughter pursuant to s 66(2) of the Crimes Act.24 However,the Court said that it was arguably unnecessary for the defendant to foresee that deathwas a probable consequence.24 Edmonds v R [2011] NZSC 159, [2012] 2 NZLR 445 at [10].[76] This Court revisited the issue in Burke v R.25 The Court considered and rejecteda submission that the defendant had to foresee that death was a probable consequence.Instead, the Court said the Crown was required to establish that the defendant knewthe common purpose involved "an unlawful act likely to do more than trivial harm tothe deceased [that was] a probable consequence of the prosecution of the commonpurpose".26[77] We consider the reasoning in Burke to be consistent with the offence ofmanslaughter. Manslaughter does not require a defendant to foresee that death is aprobable consequence. Furthermore, requiring a defendant to foresee that death is aprobable consequence to be a party to manslaughter would cause the distinctionbetween manslaughter and reckless murder to become illusory.[78] The directions given by Ellis J were in accordance with this Court's analysisin Burke. Ellis J may have set the threshold for guilt higher than necessary by sayingthat Mr Kuru had to foresee an "unlawful shooting" as opposed to any unlawful actcausing more than trivial harm. The Judge's summing up on this point probablyfavoured Mr Kuru.Meaning of probable consequence[79] We consider it well-established that "probable consequence" in this contextdoes not require an event to be more probable than not. In Uhrle v R, this Courtexplained that "probable consequence" meant an event that "could well happen".27Ellis J's directions were consistent with the language in Uhrle.[80] It is not necessary for us to comment on Cull J's observations concerning thethird ground of appeal as we all are satisfied no miscarriage of justice arose throughthe Ellis J's directions on the application of s 66(2) of the Crimes Act in this case. Weaccordingly reject the third ground of appeal.25 Burke v R [2022] NZCA 279, (2022) 30 CRNZ 387.26 At [66].27 Uhrle v R [2015] NZCA 412 at [66].Result[81] The appeal against conviction is dismissed.CULL J[82] I am unable to agree with the majority that the jury's verdict was reasonable. Iconsider there was insufficient evidence for the jury to have been satisfied to thecriminal standard that Mr Kuru was guilty of manslaughter under s 66(2) of the CrimesAct. The lack of probative evidence and the expert evidence from Police DetectiveInspector Scott, on whether Mr Kuru likely knew and sanctioned the common purpose,led the jury into impermissible reasoning and an unreasonable verdict resulting in anunsafe conviction.28[83] I agree, however, with the majority's conclusion on the admissibility ofDetective Inspector Scott's evidence. It is the use and effect of that evidence which isof concern.[84] I diverge from the majority view on the mens rea threshold for party liabilityfor manslaughter under s 66(2) on foreseeability of the risk of the charged offence, inthis case, an unlawful shooting.First ground of appeal: Was the jury's verdict unreasonable?[85] There are three reasons why I consider the required standard of proof beyondreasonable doubt was not met and why the jury could not have been reasonablysatisfied of Mr Kuru's guilt.Lack of evidence[86] First, it was accepted that there was no direct evidence that Mr Kuru knew ofor participated in the common purpose or plan. The need for knowledge of the planwas emphasised by the Judge in addressing the common understanding required for28 Owen v R, above n 13, at [17].party liability for manslaughter. The Judge pointed to the four co-offenders, who hadaccepted they knew about the plan and the weapons:[85] Those other four have accepted that they had an understandingbetween themselves that they would go to 144 Puriri Street on 21 August 2018with a shared intention of damaging Mr Ratana's property and threateninghim, and that one or more of them would be armed with guns.[87] But there was no direct evidence involving Mr Kuru in that plan. The Judgeconfirmed that there is no direct evidence that Mr Kuru knew about any of the detailof the plan:[168] There is of course no direct evidence that Mr Kuru knew about any ofthis. And there is no direct evidence of when he is supposed to have gainedthis knowledge or authorised a plan, how he conveyed his approval or who heconveyed it to. So your answer will, again, depend on whether you can besure that he did, as a matter of inference.(Emphasis in original)[88] In the absence of any direct evidence, text or electronic messaging, previousplanning meetings, or other evidence tying Mr Kuru into the plan, the Crown caserested on circumstantial evidence and principally the expert evidence on gangs fromDetective Inspector Scott.[89] Second, the strands of circumstantial evidence, when taken together, lackedprobative value to the required standard in my view. Each strand does not have to beproved to the highest standard, but the overall strength of the combined strandstogether must satisfy the criminal standard.29[90] In her summing-up, the Judge summarised the five strands of circumstantial"evidence" upon which the Crown relied and upon which the jury could drawinferences:[169] firstly, the accepted evidence that Mr Kuru was the president ofWanganui Black Power at this time;secondly, the expert evidence of Detective Scott about what being presidentmeans in terms of gang activity of this kind;29 Shepherd v R (No 5) (1990) 170 CLR 573, (1990) 97 ALR 161 at 175 per McHugh J; Thomas v R[1972] NZLR 34 (CA) at 38 per North P; R v Puttick (1985) 1 CRNZ 644 (CA) at 647; and R v Guo[2009] NZCA 612 at [49].thirdly, the evidence about what happened at Puriri Street, which the Crowncharacterises as a planned and coordinated attack against a rival gang, and alsothe consequences such an attack would likely have for Black PowerWanganui;fourthly, the evidence that the Crown says shows the "launch" of the PuririStreet mission near Mr Kuru's home on Matipo Street and the return of someof the men there afterwards; andfifthly, where Mr Kuru accepts that he was on Tiki Street and then outside hishome at around the relevant times.[91] Critically, when addressing those factual strands (without Detective InspectorScott's evidence) the Judge warned the jury that they might think that those establishedfacts alone, even when woven together, would not be enough to make them sure thatMr Kuru knew about the plan beforehand or that he ordered the attack.[92] It is salutary, in my view, that the Judge was concerned that the "establishedfacts alone" would not be enough to establish that Mr Kuru knew or sanctioned theplan. Even the plan itself was organic. At sentencing, the Judge confirmed her viewthat the "plan" was hastily formulated on the morning of the shooting:30 I would not pitch the degree of premeditation involved in this "plan" ashigh as the Crown did at trial or in submissions. My own view of the matter isthat it was hastily formulated on the morning of the shooting. That isconsistent with the evidence at trial The fact that everything took place inbroad daylight on a busy suburban street also does not suggest much of a plan.(Emphasis added)[93] I respectfully agree with the Judge's assessment. The four "factual"circumstantial strands (1, 3-5) of evidence on their own at best create suspicion or apossibility or even a probability that Mr Kuru knew and/or approved the attack. Butas juries are regularly directed, suspicion and/or probability is not enough. If theevidence at trial revealed the plan was hastily formulated on the morning of theshooting, there was little or no foundation for the jury to be sure "that Mr Kuru knewabout the plan and about all of it" as the Judge directed.31 Even "woven" as "strands30 Sentencing notes, above n 1, at [12].31 Judge's summing-up at [166] was:[166] first to be sure that Mr Kuru knew about the plan and about all of it – the plan to goto Puriri Street, the plan to threaten Mr Ratana, the plan to damage his property and the planto take guns along. You will need to be sure that he participated or helped prosecute the planby doing that – by authorising it or sanctioning it or ordering it.of a rope", the "established facts alone" are not enough, as the Judge warned, for ajury to be reasonably satisfied or sure, to the requisite standard, of Mr Kuru's guilt.32[94] I depart therefore from the reasons of the majority at [47] as to why theyconcluded the jury's verdict was reasonable. The knowledge imputed to Mr Kuru ofthe activities of the local chapter of Black Power and the previous incident withMr Ratana may well have likely been known to Mr Kuru but there is no evidence thatMr Kuru was involved in that incident, or that he co-ordinated the previous attack onMr Ratana; his presence in Tiki Street could not have "knowingly encouraged" theothers as there is no evidence he was seen by them; and the others did not assembleoutside his house but nearby. The jury would have had to engage in speculativereasoning, with respect, that Mr Kuru "would have been likely to have seen" (emphasisadded) the assembly in Matipo Street and "realise that they were planning on headingtowards Mr Ratana's house"; that he "would have also anticipated [they] werecarrying weapons" (emphasis added), that "he anticipated trouble" and "was keepinga supervisory eye on the members of his chapter", as the language itself suggests.[95] In summary, Mr Kuru was not present at the scene of the shooting; thedefendants did not collect outside his house (at 60 Matipo Street) but outside a nearbydefendant's house at 55 Matipo Street; the plan was hastily formulated on the morningof the attack; there was no evidence that he communicated with the other defendantsbefore the event; no evidence that there were arrangements put in place with Mr Kuru'sknowledge of the attack; no evidence that he knew or saw any weapons being taken;and nor was he with the other defendants, who admitted they had a common intention,before they departed for Pūriri Street. The evidence falls well short of proving thatMr Kuru knew of the plan, foresaw that an unlawful shooting was a probableconsequence, and sanctioned the plan.[96] That leads to my third reason for the unreasonable verdict and that is the effectof the expert evidence of Detective Inspector Scott.32 Munro v R, above n 14.The expert evidence[97] The fifth strand of the evidence against Mr Kuru described in the Judge'ssumming up, was the expert evidence of Detective Inspector Scott, that "as President[Mr Kuru] would be likely to have known about and would need to have authorisedan attack of this kind."[98] Detective Inspector Scott was called by the Crown as an expert to giveevidence about gangs in New Zealand. His evidence was grouped under headingssuch as "Patching and the Patch", "Gang structures", "the Prospect" and "Violence".The defence took objection to the part of Detective Inspector Scott's evidence whichdescribed the role of the President of a gang. His initial brief (at [28] above) includedthe following paragraphs:3339. The President is the figurehead of the gang or chapter, and is the chairmanat meetings.41. He has the final authority over all chapter business and its members.42. An organised gang crime against another gang would only occur with thesanction of the president.43. The president's authorisation would be required due to the obvious risksand consequences that the particular gang would be exposed to(Emphasis added)[99] In a pre-trial ruling, after canvassing the authorities of Thacker v R34 and R vHoltham,35 the Judge found that Detective Inspector Scott's evidence "at paragraphs41-43 (at 42, in particular) goes too far" in that it:3633 R v Fantham-Baker, above n 5, at [7].34 Thacker v R, above n 17.35 R v Holtham [2008] 2 NZLR 758 (HC).36 R v Fantham-Baker, above n 5, at [16] (footnote omitted).would effectively suggest to the jury that [he] was expressing the expertview that:(a) the attack on Mr Ratana was an "organised gang crime"; and(b) it occurred with the President's (Mr Kuru's) authority.[100] Ellis J directed that paragraphs 42 and 43 needed to be re-framed by referenceto Detective Inspector Scott's experience, such as "in my experience it is unlikely that".37 I consider that, given the appellate authority, the Judge was not in error inadmitting the Detective Inspector's evidence on this basis.[101] At trial, Detective Inspector Scott's amended evidence included:The President is the figurehead of the gang or chapter, and is the chairman atmeetings. In some gangs the President can also be known as the 'Prez orCaptain'. He is a senior member who has developed into the recognised leaderusually through a combination of personal strength, leadership skills andpersonality. He has the final authority over all chapter business and itsmembers. In my experience a (serious) organised gang crime against anothergang would likely occur with the sanction of the president. This is due to theobvious risks and consequences that the particular gang would be exposed towhich would likely include intense scrutiny by the Police and seriousretaliation by the opposing gang.(Emphasis added)[102] Despite the amendment and the Judge's caution that the Detective Inspectorcould go no further than speaking in general terms about his experience and knowledgeof a President's role, the Detective Inspector's evidence was the key piece of evidenceto fill the gap in the Crown's case against Mr Kuru. The Detective Inspector'sevidence on gangs and gang leaders in general became the focus of the Crown's case.[103] In his closing address, Mr Wilkinson-Smith for the Crown commenced byinviting the jury to look at the sequence of events through the lens of DetectiveInspector Scott on gangs: I want to start with the evidence from the gang expert, Detective InspectorCraig Scott, because this is a gang shooting and it's that gang context that Isuggest this whole event needs to be looked at and considered in. That's thelens, if you like, that we should look through to understand what has gone onhere and put briefly, Detective Inspector Scott provides us with that lens.37 At [18]. See [29] above for full quote.[104] The phrases used by the prosecutor to describe Mr Kuru's role in this plan —something at the front of his mind, being on a war footing, his decision being likenedto a declaration of war with high stakes — were not only colourful but in the absenceof any evidence that Mr Kuru knew about the plan, invited the jury to engage in war-like speculation about his role:It's something the President would have at the front of his mind and thedecision to move against the opposing gang is one that has extremely highconsequences for the whole gang. It's like a declaration of war, members ofthe jury, and the chain of violence that would trigger not to mention the riskto their own gang members and what it might mean for them. And that, in theCrown submission to you, is exactly what the stakes were here. [Mr] Kuru asPresident of this chapter with Mr Ratana living in their midst is effectively ona war footing.[105] This had to be addressed by the Judge in her direction. In dealing with theCrown and the defence addresses, the Judge reminded the jury that "Detective Scott'sevidence was that as president [Mr Kuru] would be likely to have known about andwould need to have authorised an attack of this kind." The Judge then summarisedthe prosecution's contention of what kind of attack this was:[172] [He] described it as a premeditated, organised, co-ordinated attackon a rival gang, the Mongrel Mob, the arch enemy of Black Power. He saidthat from a Black Power perspective Mr Ratana had committed some cardinalsins—sins that the president would know about and would want to stomp on:living in Castlecliff, going around with a gun, wearing a patch and humiliatinghis members. If you accept that analysis then it is perhaps easier to draw thatinference inherent in Detective Scott's evidence—the proposition thatMr Kuru must have been involved.[106] In my view, the evidence given by Detective Inspector Scott and the way inwhich the Crown used it led the jury into impermissible deductive reasoning, namely:Presidents of gangs know about and sanction rival gang attacks; this was a rival gangattack by Black Power on the Mongrel Mob; Mr Kuru is a gang President; andtherefore, he must have known and sanctioned this rival gang attack.[107] With the combined circumstantial strands not being enough to convict Mr Kuruof manslaughter as a party, Detective Inspector Scott's expert evidence that thePresident would likely have known and sanctioned a rival gang attack assumed criticalimportance. It provided a basis for the proposition that Mr Kuru must have beeninvolved in the shooting, which the jury were invited to accept.[108] This is not to say that evidence from police or Corrections officers on the useof language and gang hierarchy should not be admissible to provide substantial helpto the jury. However, here the use of the Detective's evidence as the key plank of theCrown's case, amounted to a proposition that Mr Kuru must have been involved, basedon likelihood. This contrasts markedly from cases such as Poutai v R,38 whereevidence of gang membership and status within the gang was "plainly relevant"39 andsupported the other direct and circumstantial evidence.[109] In Poutai, Mr Poutai was convicted of inciting, counselling or procuring anassault on a prison inmate, in a co-ordinated attack under s 66(1) of the Crimes Act.The Crown's case was that while he did not physically participate in the beating, (beingin his cell at the relevant time) he orchestrated it. The evidence of Mr Poutai's seniorgang membership was admitted to explain why the principal attackers (junior gangmembers) were accustomed or prepared to act in accordance with Mr Poutai'sdirections. Thus, the evidence was material to the motives of others participating inthe beating and Mr Poutai's modus operandi for exacting retribution.[110] However, in Poutai this Court noted that the Crown's case was bothcircumstantial and direct.40 An eyewitness called by the Crown, saw and heardMr Poutai throughout the attack period. Further, evidence was given that meetingswere held on the morning of and the day prior to the beating, where Mr Poutaiorganised the other prisoners to act at his direction. He was heard to inquire whetherthe attackers had caused the victim harm, observing that the victim deserved to die.The gang evidence, led from two prison officers, painted a picture of the offending inconjunction with, and as explanatory of, the other direct evidence.[111] In the absence of sufficient evidence against Mr Kuru, the risk of unfairprejudice associated with Detective Inspector Scott's evidence is significant. Theauthors of Phipson on Evidence describe "reasoning prejudice", a process by which38 Poutai v R [2010] NZCA 182.39 At [13].40 At [18].the jury may give evidence more probative weight than is warranted. An element ofsuch reasoning prejudice is described as "moral" or "bad person" prejudice:41Put simply, the jury may be tempted to convict because someone like theaccused should not be out on the street.[112] The same risk was recognised by the Supreme Court in Mahomed v R, albeitin relation to specific propensity evidence:42 As noted, the cogency of [propensity] evidence usually turns on ideas aboutcoincidence and probabilities but the associated principles of probabilitytheory are likely to be unfamiliar to most jurors. There may also be a risk thatthe jury may seek to reason directly from a conclusion that the defendant is ofbad character to a finding of guilt. This risk will be enhanced if the true andlegitimate relevance of the evidence is either not obvious or not explained tothe jury.(Emphasis added)[113] Where, as in the present case, the evidence of gang membership is theparamount plank of the Crown's case in the absence of evidence to the criminalstandard, the risks of impermissible reasoning and "bad person" prejudice aresignificantly higher. The jury had to be sure that "Mr Kuru knew about the plan andabout all of it" including "the plan to take guns along." Not only was there an absenceof evidence to that effect, but the Privy Council warning in Pora v R is applicable:there are dangers inherent in an expert expressing an opinion "as an unalterable truth"where "the opinion is on a matter which is central to the decision to be taken by ajury." 43[114] Standing back and applying the principles articulated by the Supreme Court inOwen v R,44 set out at [43] above, there is no question of weight to be given to anyparticular piece of evidence and nor is there an assessment of the credibility ofwitnesses engaged here.41 Hodge M Malek (ed) Phipson on Evidence (20th ed, Sweet & Maxwell, London, 2022) at 601–602. See also 562–563.42 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [81] per McGrath and William Young JJ.43 Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [27].44 Owen v R, above n 13, at [5] and [13].[115] Having regard to all the evidence, I consider the jury could not havereasonably been satisfied to the required standard that Mr Kuru was guilty. For thesereasons, I find the jury verdict was unreasonable and the conviction is unsafe.Third ground of appeal: Were the jury misdirected on the prerequisites to beingguilty as a party to manslaughter?[116] Finally, I diverge from the majority's support for the lower threshold test forparty liability under s 66(2) for manslaughter, enunciated in Burke v R.45 Although Iagree that the Judge did not misdirect the jury on foreseeability, I disagree with themajority view that the trial Judge here "may have set the threshold for guilt higherthan necessary by saying that Mr Kuru had to foresee an 'unlawful shooting' asopposed to any unlawful act causing more than trivial harm."[117] In favouring the lower threshold direction in Burke, the majority here havereferred to Edmonds v R,46 stating that the Supreme Court found it unnecessary todeliver the final word on the level of knowledge required before a defendant could beconvicted of being a party to manslaughter under s 66(2) of the Crimes Act. There aretwo responses to that I wish to make.[118] First, the trial Judge in Edmonds had directed the jury that the appellant couldbe found guilty of manslaughter only if the jury were satisfied that he appreciated thatthe killing of somebody was a probable consequence of the prosecution of the commonpurpose. The Court noted that this was arguably unnecessary but left it to another dayto resolve the issue and addressed the appeal on the assumption that the trial Judgewas correct. However, the Court noted at [47]:The approach of New Zealand Courts to common purpose liability must befirmly based on the wording of s 66(2). That section recognises only onerelevant level of risk, which is the probability of the offence in issue beingcommitted. If the level of risk recognised by the secondary party is at thatstandard, it cannot matter that the actual level of risk was greater than wasrecognised.[119] The facts of Edmonds cannot be overlooked. The appellant had armed himselfwith a firearm and knew that one of his associates had a baseball bat. In that context,45 Burke v R, above n 25.46 Edmonds v R, above n 24, at [10].it did not matter that he did not necessarily know that his co-offender was armed witha knife and the Supreme Court rejected his argument that the trial Judge should havedirected the jury that it could only find him guilty if he had known that the principaloffender was armed with a knife. The Court held that s 66(2) requires one level ofrisk, which is the probability of the offence in issue being committed. It cannot matterthat the actual level of risk was greater than was recognised.[120] Although accepting that there was no standalone legal requirement that aparty's knowledge must extend to whether the group were armed and if so, with whatweapons, the Supreme Court in Edmonds accepted there were circumstances in whicha knowledge of the weapon-direction may be required as part of the Judge's discussionof the evidence in particular in relation to:47(a) establishing the extent of the common purpose;(b) deciding whether the party recognised that the commission of the offence was aprobable consequence of the commission of the common purpose; and(c) determining whether the offence committed by the principal was in the course ofthe implementing of the common purpose.[121] Second, four years later the Supreme Court in Ahsin v R revisited the broadquestion of the elements for party liability and the level of knowledge required of thecommon purpose under s 66(2).48 The Court held that the Crown must prove beyondreasonable doubt that:49(a) the offence to which the defendant is alleged to be a party was committed by aprincipal offender;(b) there was a shared understanding or agreement to carry out something that wasunlawful;(c) the person(s) accused of being parties to that agreement had all agreed to helpeach other and participate to achieve their common unlawful goal;(d) the offence was committed by the principal in the course of pursuing the commonpurpose; and(e) the defendant intended that the offence that eventuated be committed, or knewthat the offence was a probable consequence of carrying out the common47 At [48].48 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493.49 At [102].purpose. This requires foresight of both the physical and mental elements of theessential facts of the offence.[122] In Ahsin, the trial Judge was criticised for failing to refer to and explain theneed for knowledge that the offence was a probable consequence. On the basis of theSupreme Court authorities, I consider that Ellis J was correct in her direction that MrKuru had to foresee an "unlawful shooting". The lower threshold, as the majorityfound in Burke, that foreseeability is confined to any unlawful act causing more thantrivial harm, sets too low a threshold for criminal liability as a party for unlawfulkilling.[123] I would allow the appeal and set aside the conviction.Solicitors:Crowley Waugh, Whanganui for AppellantCrown Law Office, Wellington for Respondent