TOKO (ASHLEY) SHANE REI WINTER v R [2022] NZSC 106

TOKO (ASHLEY) SHANE REI WINTER v R [2022] NZSC 106 [6 September 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlNOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFWITNESS/CONNECTED PERSON(S) PURSUANT TO S 202 OF THECRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.htmlNOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THEINDIVIDUAL WHO WAS FOUND UNFIT FOR TRIAL PURSUANT TO S 200OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 44/2022[2022] NZSC 106BETWEEN TOKO (ASHLEY) SHANE REI WINTERApplicantAND THE QUEENRespondentCourt: Ellen France, Williams and Kós JJCounsel: W C Pyke for ApplicantZ R Johnston and F E S F Girgis for RespondentJudgment: 6 September 2022JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] The applicant and Mr Kerry Te Amo were convicted after trial of murder. Boththe applicant and Mr Te Amo pleaded guilty to kidnapping the murder victim. A thirdperson, M, was also charged with murder but was found unfit to stand trial.1 Theapplicant appealed unsuccessfully to the Court of Appeal against conviction.2 She hasapplied for leave to appeal to this Court.Background[2] The murder involved the torture and hanging of a 17 year old girl. The keyCrown eye-witness evidence at trial came from M's younger sibling, R, who was14 years old at the time. R was present for much of the offending but she did not seethe victim being hanged. At that point she had been sent to another room in the housein which these events took place.[3] R was interviewed by the police and made a number of statements over a periodin July to August 2018, all of which were before the jury. She implicated the applicant,Mr Te Amo and M, and ascribed a leading role to the applicant. The jury also heardthat, subsequently, R was given Crown immunity on 13 November 2018. The juryheard evidence about the process leading to the issuing of the certificate of immunityincluding as to the provision of legal advice to R by an independent lawyer (on twooccasions). The certificate of immunity was read to the jury.3 There were someadditions to her evidence from that in her police statements prior to trial. Trial counselfor the applicant said the new material illustrated the fact that in her evidence R was"overcooking" the applicant's role.[4] The applicant made various admissions to the police, accepting that sheassaulted the victim. Her defence at trial was that her involvement was limited to heradmissions. Those admissions fell short of an intention to kill and she did not know1 The Crown advise that the Attorney-General has subsequently directed M be brought back beforethe Court.2 Te Amo v R [2022] NZCA 122 (Cooper, Peters and Palmer JJ) [CA judgment].3 The certificate notes that the undertaking of immunity would not protect R from the consequencesof giving untrue evidence.the others intended to kill the victim as opposed to giving her a scare. In closing(reflecting the cross-examination) defence counsel said there was room for areasonable doubt. That doubt was said to come from R's motive to downplay her ownrole, that of M and that of Mr Te Amo.[5] The Judge in summing up dealt with the effect of the immunity in this way:[29] [R] was given immunity from prosecution on condition she tell thetruth about what happened. Both defence counsel have criticised her for that.They say she got a "sweetheart deal" and they imply her evidence, in parts, issuspect as a result.[30] Well, the Solicitor-General has the power to grant an immunity toprosecution in circumstances where the Solicitor-General thinks it appropriateto do so. She did it in this case. Your task is to evaluate [R's] evidence. Ifyou think the immunity has any significance, then give it the significance youfind it has. Just do not say, "well, because she has immunity we cannot trusther". The point of immunity is to free a witness to tell the truth. Whether thewitness does tell the truth is best assessed by how their evidence stacks upagainst other evidence you accept.[6] In the Court of Appeal, the applicant said that a direction should have beengiven to the jury under s 122(2)(c) of the Evidence Act 2006 (witness who may havemotive to give false evidence). The Court of Appeal saw nothing in this or in thechallenge to the directions in relation to the immunity. The Court made the point thatthese issues were all well-ventilated at trial and R's incentives were plain. The Courtalso noted the Judge's direction on credibility and reliability identified R in particular(noting each defence counsel criticised her evidence when it referred to their clientsand the jury would have to assess her credibility and reliability).4 Further, there wascomprehensive discussion by the Judge of those criticisms of R's evidence. Finally,the Court distinguished this case from that of "an accomplice seeking to deflect blameor a prison informant".5 Instead, R's "evidence, which implicated a family member,was consistent with her statements to the police before she had immunity".64 At another point in summing up, in dealing with R's interviews with police, Brewer J referredagain to each party's case on R's evidence and the need for the jury to assess this. He saidrepetition of something did not of itself make something true or more correct than the first time itwas said.5 CA judgment, above n 2, at [25].6 At [25].The proposed appeal[7] The applicant wishes to argue a warning as to the reliability of R's evidence interms of s 122(2)(c) should have been given. That is because of R's young age andher involvement in the events. Moreover, she is said to have had an incentive to putherself in a more favourable light and attribute blame to the applicant to deflect it fromherself and from the other two, being M and a friend, Mr Te Amo.[8] The applicant also challenges the directions given by the Judge about theimmunity as conveying acceptance of the truth of what R told the police.Our assessment[9] We see the ultimate resolution of the proposed appeal as turning principally onthe factual matrix. In the circumstances, we are not satisfied the present case is anappropriate one for considering general questions about the approach to warningsabout reliability where a witness may have a motive to lie or the approach as to thedirections regarding immunity. In terms of that last point, there is also force in therespondent's submissions as to the limited impact of the immunity on the substance ofR's evidence. We add that the Court is addressing s 122 warnings further in anotherappeal.7 The proposed appeal does not raise questions of general or publicimportance.8[10] Nor is there an appearance of a miscarriage of justice.9 The arguments on theproposed appeal would in substance reprise those made before the Court of Appeal.Nothing raised by the applicant gives rise to an apparent error in the Court'sassessment. R did implicate M; the issues were very well ventilated; and counsel didnot seek a s 122 warning. Further, the directions on the immunity were tailored to thefacts and circumstances of the case. Finally, the immunity did not prevent R beingcross-examined on the basis her involvement was very much greater than sheadmitted, and that she minimised the part M played. These matters were put to her. Itcould not, on the other hand, have been suggested R took a leading part.7 Rippey v R [2021] NZSC 160.8 Senior Courts Act 2016, s 74(2)(a).9 Section 74(2)(b).[11] For these reasons, we do not consider the criteria for leave to appeal are met.Result[12] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent