Unlawful assembly charge dismissed

Press, 29 June 1983, Page 18

Unlawful assembly charge dismissed

Eleven members of the Highway 61 motor-cycle gang, after a two day hearing in the District Court, yesterday had a joint charge of unlawful assembly outside the No. 1 District Court on April 25 dismissed. Judge Palmer said the evidence fell short of proving a common purpose, and participation by the defendants in that common purpose. He said the prosecution case was speculative and conjectural. Suspicion was not proof and he could not find there was an unlawful assembly to which the defendants were parties. The Judge also held that one defendant, Taui Thompson, aged 28, unemployed, had been taken unlawfully into custody by the police, by being arrested for an alleged offence of which he was not informed at the time of his arrest. He and others had been held in custody for 10 days, pending a successful bail application to the High Court. After dismissing the charge against Thompson, and then the other 10 defendants, the Judge upheld submissions by Thompson’s counsel (Dr W. G. G. A. Young) for costs for the defendant. He awarded costs of $2OO, to be paid by the Justice Department. The defendants, who all denied the charge, were: Bernard Peter Leca, aged 25, Augustine Stanley Rangi, aged 30, Kevin Korau, aged 26 (all represented by Ms E. H. B. Thompson), Matthew Bernard Grant, aged 19, James Tuwairua Wirihana, aged 25 (both represented by Mr G. R. Lascelles), Sonny Morehu, aged 25, Taui Thompson, aged 28 (both represented by Dr W. G. G. A. Young), Ashley Vernon Davies, aged 23, Patrick Napier Hutana, aged 19, Paul Paki Mason, aged 24, (both represented by Mr M. J. Knowles), and Piwhara Anthony Tupara, aged 29 (Mr E. Bedo). The charge of unlawful assembly had been laid as a result of an incident outside the District Court when the 11 defendants were amongst persons who arrived while six men, most of them members of the Devils Henchmen gang, were appearing on a charge of murder arising from the shooting of a Highway 61 member two days before. The door had been locked, barring their entry. A court room window had been broken, language directed at the defendants inside, and

gesticulations were allegedly made. In dismissing the charges yesterday, the Judge said it would be difficult for witnesses to identify the members in a group, particularly with the activity taking place. It was clear from prosecution evidence that the 11 defendants were not the only members of the Highway 61 group present outside the court. He was not prepared to rely on purported identifications from any witnesses in this case, except of that of defendants’ admissions of being present at the scene. The Judge said there was nothing in the defendants’ statements which led him to conclude that there were admissions of participating in an unlawful assembly. In further prosecution evidence yesterday Constable T. A. Te Paa said there were no more than 16 persons in the motor-cycle group. When they realised they could not get into the court, they had banged on the door and windows. They had jumped up and down, abusing persons inside the court. There was “chaos” for a couple of minutes, he said. Some members had banged on windows with their helmets. Not all members had taken part in the incident. Some had just milled about. The group left together, blocking the roadway with their machines before moving of, said Constable Te Paa. Several constables gave evidence of interviewing defendants. They stated that they had gone to the court to see six Devil’s Henchmen gang members being charged with the murder of one of their members. Constable M. J. Davis said Thompson, when interviewed, said the group had gone to the court “to see those dudes.” They had intended to leave for the funeral of their shot member later and were not “tooled up” that day to “get them.” Morehu, questioned by Constable G. A. R. Brown, said they did not get into the court because the door was locked. They had not gone intending to cause any trouble. He had known of no plan to cause any damage or trouble. He said he did not think they would get locked out of the court as it was a public court. Constable J. C. Stokes said she interviewed Mason, who said that when the group was not allowed entry

to the court he just stood around. A few of the guys were yelling, he had said.

After the window was smashed, they had all left. They had been on their way home when stopped by the police. They had intended to get ready that afternoon to leave for Dannevirke for the funeral of the member who was shot. Constable R. J. Sloan said Wirihana, in a written statement said it had been decided amongst the group that probably not everybody would be allowed into the court, and only he and his friend were to watch the court proceedings. They had found the main door and other doors locked. Other members had then arrived and tried to jump up at windows to look inside. A window had then been broken by a member as he tapped on it. Wirihana had said there was no sign at the court to say it was closed, and nobody came out to say why the door was locked. Constable P. R. Kench said Hutana admitted having broken the window, with his hand. He had not meant to smash the window. Constable J. M. Fittock said Korau stated he had gone to the court to see what was happening about the case which involved the shooting of a friend, and flat-mate. Korau said he had just arrived when his friends left, so he turned around and went with them. To Ms Thompson, the constable said he had arrested Korau on an unlawful assembly charge, on instructions from the station senior- sergeant, acting under directions from the police superintendent. To a question from the Judge, the constable said that to his mind there was no other evidence to charge Korau with unlawful assembly, but there was another matter. Constable A. R. Phillips said he questioned Grant, who had said he did not know who made the decision to travel to the court. He had travelled as a pillion passenger and did not know where the group was heading. At the court he had looked inside, at the end farthest from the door, “to have a look who did it.” Constable Phillips said he could not identify the persons he had seen jumping at the windows. Cross-examined by Mr Lascelles, the constable agreed that there was nothing from his interview

with Grant that would have justified his arrest. He said he did not collate all the evidence and there might have been other evidence. He had received instructions to arrest Grant. Constable T. C. R. Riwaka said Leca when interviewed had said he had been outside the court building but did not do anything. He had arrested Leca for unlawful assembly. To Ms Thompson, the constable said he would not have arrested Leca on the information Leca had told him. He had been directed by the station senior-ser-geant to arrest Leca. Counsel for the 11 defendants submitted there was no case to answer to the unlawful assembly charge, and indicated that no defence evidence would be called. Dr Young submitted there was no evidence against the defendants in general, and particularly in the cases of Morehu and Thompson, that there was a shared purpose from the outset to cause trouble. It was a difficult charge for the prosecution to proceed on. He said the prosecution had relied on the assumption that the original

assembly was a lawful one, which then became unlawful. The defendants were not guilty of the offence unless wilful participation in lawful conduct was proved; mere presence at the scene was not enough. None of the prosecution evidence, coupled with whatever admissions defendants made about their presence at the scene, constituted a prima facie case against them, Dr Young submitted. Mr Lascelles said Wirihana had found the courtroom door locked with no judicial authority, and advised others of this. His behaviour had been completely law-abiding and he had gone to the court to watch proceedings, and not to cause trouble. Grant’s “misfortune” was that he was there at the time. There had been no evidence that they contemplated trouble or had gone to the court to be an unruly element there. Mr Bedo said the evidence had gone no further than to establish that Tupara was present at the scene. There had been nothing to implicate him in the activi-

ties that prosecution witnesses had alluded to. Ms Thompson said there had been no specific evidence of when the common purpose, if there was one, became unlawful. The individual reactions of the persons at the scene that day had been occasioned by a judicially unauthorised blocking of their legitimate entry to a public court, Ms Thompson said. Evidence was that one gang member was already in the court, giving no trouble. There was no reason to suspect that other members of the Highway 61

gang would have caused trouble. Mr Knowles submitted there was no case for Mason, Davies, or Hutana to answer to the unlawful assembly charge. Mason’s and Davies’ roles had been barely a physical presence. Prosecution witnesses had said that Hutana appeared surprised when the window broke. They could not say it was deliberately broken.’ “Even if the window had been deliberately broken that would not make him a member of an unlawful assembly.”