A lawyer for one of three men accused of murdering a Hamilton man in Auckland last year says there is no evidence his client was a party to the attack.
Murray Gibson was giving his closing address to a jury in the High Court at Auckland yesterday on behalf of Ali Rafiee, who is charged with Ahmad Matlobyaygazwini and Tuale Fuimaono with murdering Bjorn Henderson.
Mr Henderson was dumped at Auckland Hospital with severe head injuries on March 9 last year, about seven hours after he was allegedly struck three times with a piece of wood. He was pronounced dead early the next day.
Crown prosecutors said the trio acted together to plan and exact retribution on Mr Henderson, who had attacked and robbed Matlobyaygazwini on March 7.
They said Rafiee went to an Ellerslie-Panmure Highway address with Matlobyaygazwini knowing that an assault which could kill Mr Henderson would take place.
Mr Henderson had tried to escape when he saw Matlobyaygazwini running into another property.
Mr Henderson is said to have subsequently swung at Fuimaono with a block of wood, which Fuimaono caught and and used to strike Mr Henderson three times.
Mr Gibson said there was no evidence to suggest that Rafiee knew anything about planned assaults on Mr Henderson when he went with Matlobyaygazwini to the address.
He said the resident of the Ellerslie-Panmure Highway address was a mechanic and Rafiee had gone there to help him.
"The preponderance of evidence suggests he went round there to assist and consult on spark plugs," Mr Gibson told the jury.
"There's no firm or reliable evidence that Ali was a party to carrying out an assault against Bjorn."
He said Rafiee had been co-operative with police from the time that they sought him as a witness.
Mr Gibson said the Crown needed to prove beyond reasonable doubt that Rafiee was party to an agreement to attack Mr Henderson and that he took a firearm to the address, both of which the Crown had failed to do.
Only one witness told of seeing Rafiee with a firearm at the address, and that witness was unreliable, Mr Gibson said.
Fuimaono's lawyer, Stuart Grieve, QC, said his client admitted Mr Henderson's manslaughter but not his murder as he had always maintained there was no intention to kill Mr Henderson.
Mr Grieve said a pathologist had indicated that injuries suffered by Mr Henderson were caused by moderate force rather than severe.
"This is not a situation on his evidence where you may think that Mr Fuimaono simply lashed out with all his force," Mr Grieve said.
"Facing the deceased wielding this piece of wood, he disarms him and whacks him, and you may think it was a whack that was not intended to do really serious injury and certainly not intended to kill."
He also said there was no evidence Fuimaono was involved in a plan, if one existed, among the three accused to kill Mr Henderson.
Mr Grieve said much of the Crown's submissions on Fuimaono's involvement was guesswork, which was not enough to convict him.
The jury is expected to retire today after the closing address for Matlobyaygazwini and Justice Graham Lang's summary of the case.
- NZPA
Accused not part of fatal attack plan, says lawyer
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