The jury considering the fate of the two men accused of murdering journalist Phillip Cottrell have asked for clarification of the legal standard they have to apply.
After starting their deliberations at 10.15am today in the High Court at Wellington the seven women and five men returned to court at 2.25pm wanting another direction from Justice Forrie Miller.
He told them that the elements the Crown had to prove for murder had to be proved beyond reasonable doubt, meaning that the jury had to be sure that each ingredient of the charge was established.
Nicho Allan Waipuka, 20, admits he is guilty of manslaughter for having punched Mr Cottrell, 43, causing him to fall and hit his head on the ground.
In the High Court at Wellington the lawyer for Manuel Renera Robinson, 18, said he should be acquitted of both murder and manslaughter, was on the other side of the road and not involved in the incident.
But the Crown said both men had told friends that they had kicked Mr Cottrell and both should be found guilty of murder if the jury accepted that evidence.
Mr Cottrell died from severe head injuries on December 11 last year, the day after he was attacked in Boulcott St, central Wellington, walking home from a night shift at Radio New Zealand.
During the trial some witnesses withdrew statements they had earlier made to police. Some said they could not recall making the statements, that they contained lies, or that they felt police forced them to give the statements.
In his summing up Justice Forrie Miller told the jury that if the jury accepted that the witnesses did make the statements they became part of the evidence in the case and the jury should decide what weight, if any, they attached to the differences in the statements and what the witnesses said in court.
The Crown did not allege that either Waipuka or Robinson had meant to kill Mr Cottrell but that they meant to cause bodily injury, knowing it was likely to lead to death, and that they consciously took, the risk of causing death.
Either could be guilty as a party to murder if they did or said something intended to assist or encourage the other but mere presence, or not taking steps to prevent an attack, was not enough to be a party to the crime.
The Crown said each man tried to shift the blame to the other. Justice Miller said it was a matter of simple fairness that statements made out of court by one of the accused when the other accused was not present and could not contradict it, were evidence only against the person who was making the statement.
Waipuka and Robinson have had a Corrections officer sitting between them in the dock during their trial which entered its third week today.
- © Fairfax NZ News
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