WHAT HAPPENED?
McGrath and Daniel Hatcher lived in Christchurch and were in a relationship.
On the morning of Sunday August 30, 2015, the pair were arguing.
Hatcher went to visit a friend at a house-bus in the suburb of Northwood, where his mother and her partner lived.
McGrath was at her home in Hornby and as the day progressed, she began recruiting friends to "smash Dan" and sending him threatening text messages and phone calls
McGrath's first recruit was Bandidos gang prospect Nicholas Andrew Hanson who joined her in making threats to Hatcher via text and phone calls.
Later in the day, Jesse James Winter, 29 and Alvin Rivesh Kumar, 34, joined the pair.
The Crown alleged that the group formed a plan to go to the house-bus and seriously assault Hatcher.
Polling data showed Kumar on his way to McGrath's just before 8pm, while text message and polling data put Winter there just before 10pm.
From then, the four left McGrath's home and were in the vicinity of the house bus about 10.20pm.
It was Hanson who knocked on the door and the partner of Hatcher's friend's mother who opened the door.
He was then subjected to what trial Judge Stephen O'Driscoll described as a "frenzied attack", where he was sliced across the nose, shoulder, neck, arm, hand and face. Another man then came to the door and was stabbed by Hanson in the forehead before being kicked and punched by Winter and Kumar.
The woman at the house was also assaulted and had her thumb cut.
The group then fled back to McGrath's house.
Prior to the trial kicking off, Hanson and McGrath pleaded guilty to charges of wounding two men and assaulting a woman and were jailed for 10 years and nine months and six years respectively.
Kumar and Winter, probationary members of the gang, were found guilty at trial where a central issue the jury had to decide was whether they knew that Hanson had a knife.
As the Crown case was based on circumstantial evidence, one of those key pieces was a text message which the Crown was allowed to submit as evidence.
It was one sent by Hanson to his girlfriend at 7.13pm on the night of the attack saying "Arming up to dn wht we do" [meaning "Arming up to do what we do"].
There were then attempts by Hanson to contact Kumar by phone and at 7.52pm Kumar sent a text message to Hanson saying that he was "On my way homie".
Winter sent a text to his girlfriend at 9.01pm saying that he was on a "mish".
However, there were no texts or messages from Kumar or Winter about possession or even knowledge that there could be knives.
Judge O'Driscoll's directions to the jury were that the text was admissible to prove what the object of the joint enterprise was but not admissible to prove what Winter's participation in the joint enterprise was: that is, whether he intended to assist the joint enterprise to carry out a serious assault on Hatcher knowing that Hanson was carrying a knife.
The Court of Appeal said the judge made it clear dealing with the risk of any prejudice that Winter knew there could have been a knife involved.
The Court of Appeal said some judges could have ruled the texts as "incidental text to a third party" rather than furtherance in any possible conspiracy.
"In our view it was open to the Judge to take the view he did. We consider the Judge appropriately dealt with any unfair prejudice arising from the text through the direction he gave.
"We note that had Mr Hanson not pleaded guilty, there could be no question that the text was admissible against him. The Judge would have made a similar direction about it not being evidence that Mr Winter knew about the knife.
"The jury would be expected to follow that direction. There is no reason to expect the jury not to have followed the Judge's direction here."
As for appealing the fact there was no lesser offence included in the Crown's case, Winter contended the judge erred in not providing an included lesser offence for the jury to consider on the wounding with intent charges.
It has been held, for example, previously that injuring by an unlawful act was necessarily included in wounding with intent or injuring with intent or that assault using a knife is necessarily included in wounding with intent to injure if the wound was caused by a knife.
Through his lawyer, Andrew Bailey, Winter submitted the jury should have been directed to have that consideration if they were not sure that Winter knew about the knife.
Winter asked the court to "reconsider the New Zealand approach" and instead take guidance from overseas courts including the United Kingdom.
However, the Court of Appeal said they considered it wasn't "appropriate for a divisional court to review the existing position in New Zealand".
The judge considered there was also reasonable evidence that Winter was a member of the joint enterprise.
That was due to Winter's text and phone messages and phone calls to Hanson; Winter's text messages and phone calls to McGrath; the text message from Winter to his girlfriend that he was going on a "mish"; cellphone polling data, which showed his phone travelling from the vicinity of McGrath's house to the vicinity of the house bus and travelling back to McGrath's house, consistent with the timing of the offending; and evidence that two males, in addition to Hanson, had inflicted the violence.
The trial Judge ruled that the text message, "Arming up to dn wht we do", sent
by Hanson to a third party, was admissible against Kumar and Hanson. In
the Judge's view, this was an action done in furtherance of the joint enterprise to inflict
violence on Hatcher.
The Court of Appeal said absent knowledge of the knife, there was no specific evidence as to the level of violence to someone other than Hatcher that Winter should have anticipated as a probable consequence.
In the Supreme Court decision, released today, the court held while the text message should not have been admitted as evidence, there was no miscarriage of justice.
"The unfair prejudice which might attach to the text was that the jury would have treated it as tending to prove that Mr Winter knew Mr Hanson was armed with a knife.
"But the Judge directed the jury that the text could not be used for this purpose."
It also held the Court of Appeal was correct not to offer a lesser charge, injuring with intent to injure, to the jury.
