Juror discharged after falling asleep

06:13, Feb 08 2010

A judge today discharged a juror who appeared to doze off during a murder trial in the High Court at Napier.

After concerns were raised by defence counsel about the woman's apparent inability to remain awake, Justice Alan Mackenzie met with the juror in chambers and she was discharged. He said he would continue the trial, which is expected to continue into next week, with the 11 remaining jurors.

The incident happened on the opening day of the trial of Hulio Henry Ataria, 23, who is charged with the murder of agricultural contractor Mark McCutcheon in January last year outside the Sandford Arms Tavern in the Central Hawke's Bay rural township of Ongaonga.

Mr McCutcheon was stabbed during a confrontation in the tavern's carpark but drove away. He was found dead from stab wounds in his utility several kilometres away the following morning.

Opening the Crown case, prosecutor Nicola Graham, said Mr McCutcheon, the father of three, lived locally and had been at the tavern on January 22. During the evening a patched Mongrel Mob member, whose name has been suppressed, came into the tavern accompanied by Ataria, who was a gang "prospect" or potential member.

The publican, Patrick Quin, approached the mob member and told him to take his patch off or leave the tavern. The man and Ataria went outside into the carpark where the mob member began abusing his girlfriend who was sitting in the back seat of a car. Witnesses said he had "laid into her" with punches and at some point, Mark McCutcheon had intervened, telling him to stop.

When the mob member ignored him, Mr McCutcheon said he would get his gun and walked across the road to his ute. The mob member told Ataria to "deal with him".

Mr McCutcheon produced a gun case from the ute, which he threw at Ataria.

At some stage during the confrontation, Mr McCutcheon was stabbed three times, twice in the chest and once in the back by Ataria. The lower chest wound penetrated his heart and subsequently proved fatal.

Mr McCutcheon drove off in his ute but did not arrive home. A search by friends and family the next morning found him dead in his ute, which had run off the road into a paddock.

Ms Graham said it had been accepted that Ataria had stabbed Mr McCutcheon and the issue was whether it was in self-defence or in the defence of another person.

Defence counsel Paul Mabey said his client would deny any murderous intent.

"This is not a case about the Mongrel Mob versus the rest. It is not a case where you are judging people on an emotional level. This is a case about human behaviour," he told the jury.

Publican Patrick Quin (crrct) gave evidence of telling the mob member to leave because of his patch and described the man's attitude as "aggressive".

He said he went outside after someone told him something was happening in the carpark outside the tavern.

He saw several people coming from another carpark across the road, where Mr McCutcheon's ute was parked. He saw someone carrying the gun case and the group stopped near the car where the girlfriend was sitting in the back seat.

One of Mr McCutcheon's friends handed Mr Quin the gun case, which had not been opened, and he took it inside for safekeeping.

When he went back outside, people were standing around waiting to see if anything was going to happen. He remembered seeing Mr McCutcheon drive away in his ute.

Mr Quin's evidence was interrupted after the defence counsel asked to talk to the judge in chambers.

After a brief adjournment, Justice Mackenzie told the remaining 11 jurors that their fellow juror would take no further part in the trial.