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Black Power boss loses manslaughter appeal, despite being 100m away when rival was shot

2 Jun 2023

| Author: Jasmine Jackson

Manslaughter – unreasonable verdict – expert evidence – gang experts – jury directions – s 232 Criminal Procedure Act 2011 – s 147 Criminal Procedure Act 2011 – s 25(1) Evidence Act 2006 – s 7 Evidence Act 2006 – Thacker v R [2019] NZCA 182 – s 66(2) Crimes Act 1961 – Burke v R [2022] NZCA 279

Kuru v R [2023] NZCA 150

Mongrel Mob member Ratana was shot dead at his partner’s home, which was located in an area considered to be Black Power territory. Members of the Black Power gang went to Ratana’s address with firearms and other weapons to intimidate and persuade him to leave the neighbourhood.

Damien Kuru, the president of a Whanganui Black Power chapter, was not part of the group that shot Ratana, but was seen approximately 100 metres from the scene at the time of the killing. It was accepted there was no direct evidence that Kuru knew of the plan or participated in any common purpose of the plan.

The Crown case was presented on the basis that, as president of the local chapter of Black Power, Kuru must have known about the gang’s intention to intimidate Ratana into leaving the area and would also have approved of the plan. A significant portion of the Crown’s case hinged upon the evidence of Detective Inspector Scott concerning gangs in New Zealand.

Kuru appealed his conviction on the basis that:

  • The jury’s verdict was unreasonable and not supported by evidence;

the judge erred when she allowed the Crown to adduce evidence from the police about the structure and chain of command in gangs in New Zealand. That evidence was relied upon by the Crown when it submitted to the jury that Kuru must have approved of and supported the plan to intimidate Ratana; and

  • the trial judge misdirected the jury on the prerequisites to being a party to manslaughter.

Was the jury’s verdict unreasonable
In its assessment, the court concluded the jury’s verdict was not unreasonable. It listed a number of reasons, including the relevance of Kuru’s role as president of the local Black Power chapter and the likelihood that he would have been aware of the conflict between Ratana and Black Power.

Was Detective Scott’s evidence admissible?
Detective Inspector Scott’s brief of evidence asserted the president’s authorisation would have been required due to the obvious risks and consequences the particular gang would be exposed to, which would likely include intense scrutiny by the police and serious retaliation by the opposing gang. Kuru’s defence counsel did not cross-examine Detective Inspector Scott.

The defence obtained a brief of evidence from another gang expert, Dr Jarrod Gilbert, but he was not called as a witness at trial. Gilbert’s brief of evidence said caution should be exercised when considering the evidence of Detective Inspector Scott and that gang skirmishes occur with little planning and quickly escalate out of control. Furthermore, Gilbert said a president of a gang will not inevitably be able to exercise authority over a rebellious and difficult gang member.

Through discussion as to whether police officers should be qualified as experts, the court agreed with the approach taken in Thacker v R and the Privy Council in Myers v R, which found police may be qualified as experts and be permitted to give expert evidence provided the usual rules about the qualification of experts are strictly adhered to. The court concluded Detective Inspector Scott was not disqualified from giving expert evidence because he was a police officer.

The court also found Detective Inspector Scott’s evidence was sufficiently generalised, meaning it did not tell the jury that Kuru must have known of the plan to intimidate Ratana and approved of the plan before it was executed, and the trial judge directed the jury on the proper way to treat the evidence.

Were the jury misdirected on the prerequisites to being guilty as a party to manslaughter?
The court found that while the trial judge may have set the threshold for guilt higher than necessary, by saying Kuru had to have foreseen an “unlawful shooting” as opposed to any unlawful act causing more than trivial harm, the judge’s summing up on this point probably favoured Kuru.

Held: The appeal against conviction is dismissed. Cull J dissented.

Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee.

Kuru v R [2023] NZCA 150

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