LT GEN SIR JERRY MATEPARAE, Governor-General
ORDER IN COUNCIL
At Wellington this 29th day of October 2012
Present:
HIS EXCELLENCY THE GOVERNOR-GENERAL
PRESIDING IN COUNCIL
His Excellency the Governor-General, acting under section 406(a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers to the Court of Appeal the question of the following convictions of Tyson Gregory Redman, entered in the District Court at Auckland on 17 August 2007:
(a) 6 counts of injuring with reckless disregard for the safety of others contrary to sections 189(2) and 66(2) of the Crimes Act 1961; and
(b) 1 count of injuring with intent to cause grievous bodily harm contrary to sections 189(1) and 66(2) of the Crimes Act 1961; and
(c) 1 count of wounding with intent to cause grievous bodily harm contrary to sections 188(1) and 66(2) of the Crimes Act 1961.
The background to, and reason for, the reference appear in the Schedule.
Schedule
1. Interpretation-In this schedule:
"the applicant" means Tyson Gregory Redman.
Background
2. Trial and appeal-(1) On 17 August 2007, the applicant was convicted in the District Court at Auckland of the following offences:
(a) 6 counts of injuring with reckless disregard for the safety of others contrary to sections 189(2) and 66(2) of the Crimes Act 1961; and
(b) 1 count of injuring with intent to cause grievous bodily harm contrary to sections 189(1) and 66(2) of the Crimes Act 1961; and
(c) 1 count of wounding with intent to cause grievous bodily harm contrary to sections 188(1) and 66(2) of the Crimes Act 1961; and
(d) 1 count of unlawful assembly contrary to section 86(1) of the Crimes Act 1961.
(2) The applicant's convictions relate to 2 incidents that occurred at a 21st birthday party in September 2005.
(3) Following an altercation earlier in the evening, a group of youths, including the applicant, assembled at the end of the driveway of the house where the party was being held. The applicant and others were convicted of unlawful assembly in regard to this conduct.
(4) Many of the same youths returned to the birthday party later in the evening and attacked the partygoers. The applicant, along with many of his associates, faced multiple charges of wounding and injuring. The applicant stood trial with some of the accused, while others pleaded guilty.
(5) At trial, 2 of the partygoers gave evidence that the applicant was present at, and had participated in, the attack.
(6) The applicant did not testify, but his mother gave alibi evidence to the effect that he arrived home before the attack and did not leave the house again that night.
(7) The jury accepted the evidence of the partygoers
and returned guilty verdicts on the charges in clause 2(1). On 30 November 2007, the applicant was sentenced to
two-and-a-half years' imprisonment.
(8) The applicant appealed his convictions to the Court of Appeal on the basis of alleged deficiencies in the trial Judge's jury directions, particularly on alibi, witness reliability, identification evidence, statements by co-accused, and party liability. On 5 May 2008, the Court of Appeal dismissed the applicant's appeal.
3. Application for exercise of the Royal prerogative of mercy-(1) On 25 February 2009, the applicant applied to the Governor-General for the exercise of the Royal prerogative of mercy in respect of the convictions described in clause 2(1)(a) to (c).
(2) The applicant submitted that he was not present at the attack and that his convictions were unsafe in light of
the evidence from 8 potential witnesses who had provided affidavits sworn between December 2008 and February 2009.
(3) The deponents were not called to give evidence at trial or on appeal. The applicant submitted that:
(a) he and his family instructed both trial and appeal counsel to consider the evidence of these potential witnesses; and
(b) on appeal, he and his family were concerned that the witnesses had not been called at trial and instructed appeal counsel to raise this as a ground of appeal, but this was not done.
(4) The applicant acknowledged that the information in the affidavits may not be regarded as fresh, but submitted that the consistency of the evidence and number of potential witnesses meant it was credible and cogent.
4. Evidence not given at trial or on appeal-(1) In support of his application for the Royal prerogative of mercy, the applicant provided affidavits from the following deponents whose evidence was not given at trial or raised on appeal:
(a) affidavit of Maka Diamond Feki dated 18 December 2008; and
(b) affidavit of Nathan Joe Lumbers dated 18 December 2008; and
(c) affidavit of Jonathan Manu Ma'u dated 6 January 2009; and
(d) affidavit of Paul Kolo Finau dated 21 January 2009; and
(e) affidavit of Pliskin Philip Samuel Wichman dated
6 January 2009; and
(f) affidavit of Winston Mafua Uepi dated 9 December 2008; and
(g) affidavit of Janine Barbara Tatana dated 19 January 2009; and
(h) affidavit of Sian Nuala Zoey Wichman dated
23 February 2009.
(2) Messrs Feki, Lumbers, and Ma'u, who went to the attack, deposed that they saw the applicant at the Ma'u household immediately after the unlawful assembly, but did not see him later in the night or at the attack.
(3) Mr Finau, who did not go to the attack, deposed that he drove the applicant home from the Ma'u household before the attack.
(4) Pliskin Wichman and Mr Uepi, who arrived at the Ma'u household a period after the unlawful assembly and who went to the attack, deposed that they did not see the applicant at the Ma'u household or at the attack.
(5) Mrs Tatana and Sian Wichman, who were at the 21st birthday party and saw the attack, deposed that they did not see the applicant at the attack.
5. Instructions to trial and appeal counsel-(1) The Ministry of Justice sought comment from the applicant's trial and appeal counsel on the submissions outlined in clause 3(3)(a) and (b).
(2) Trial counsel told the Ministry that, apart from the applicant's parents, the only potential witness he recalled discussing with the applicant and his family was Mr Finau, although he was aware of, and considered, other potential witnesses. His assessment was that:
(a) the applicant's mother could provide reliable alibi evidence; and
(b) exposing Mr Finau and others involved in the incident to cross-examination could undermine that evidence.
(3) Trial counsel said that this assessment, made in discussion with the applicant and his parents, led to the decision to rely on the evidence of the applicant's mother.
(4) Appeal counsel told the Ministry that he discussed the case fully with trial counsel and was broadly aware of the existence of potential alibi witnesses. He said that he did not consider trial counsel had erred in not relying on such witnesses and that his advice to the applicant, which was accepted, was not to appeal on the ground of counsel incompetence.
Reason for reference
6. Reason-The reason for the reference is that the information referred to in clause 4(1) indicates that evidence is now available that:
(a) was not given at the applicant's trial or raised on appeal; and
(b) could lead the Court of Appeal to conclude that a miscarriage of justice may have occurred.
MICHAEL WEBSTER, for Clerk of the Executive Council.