Juror out after dozing during trial evidence

9th February 2010

A 12-person jury in the trial of the man accused of murdering Mark McCutcheon has been reduced to 11 after a female juror was discharged for falling asleep.

The juror was dismissed at 4.30pm yesterday during the first day of the high-profile trial, which is scheduled to run for two weeks at the High Court in Napier.

Yesterday, Hulio Henry Ataria, 23, maintained his not guilty plea over the murder of Mr McCutcheon yet admitted he did stab the Tikokino father of three outside Ongaonga's Sandford Arms Tavern, about midnight, on January 23, last year.

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

The court heard how his wife, Paula McCutcheon, became worried about 4am when he hadn't returned home. After failing to find him, she contacted a friend who later spotted his ute, which had crashed through a fence and into a paddock. Mr McCutcheon's lifeless body was found slumped over the steering wheel.

Opening the Crown case, prosecutor Nicola Graham said Mr McCutcheon died from a knife wound which pierced his heart. He had been stabbed three times, twice to the chest area and once in the back.

"There's no dispute he [Ataria] caused the death but the question is whether he was criminally responsible for the death," Ms Graham said.

The jury was shown video evidence of Ataria, who was described as a Mongrel Mob "prospect", in the pub with a patched mobster, whose name is suppressed, about 11.30pm on January 22. Ms Graham described a "prospect" as someone who "must put the gang first above everything else and is expected to follow all the instructions given to them by patched members".

The publican, Patrick Quin, had asked the mobster to take his patch off or leave the tavern.

The man and Ataria went outside to where the mobster's girlfriend was waiting in a car. The mobster "laid into her" with punches, witnesses said. Mr McCutcheon had intervened, telling him to stop.

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

Mr McCutcheon produced a gun case and during a confrontation was stabbed three times.

Ataria's defence team of Paul Mabey, QC, and Tony Snell told the jury that matters of self defence and intent would be central to the case. "He [Ataria] denies murderous intent," Mr Mabey said.

The trial was not a matter of "the Mongrel Mob versus the rest", he said.

"This is not a case where you're adjudging people on an emotional level ... this is a case about human behaviour. Everybody is equal before the law, whether he be a Mongrel Mob member, a judge or a lawyer."

Evidence was interrupted yesterday after defence asked to talk to the judge in chambers.

After a brief adjournment, Justice Alan Mackenzie told the remaining 11 jurors that their fellow juror, who had been seen sleeping during evidence, would take no further part in the trial.

The seven-man, four-woman jury would continue to hear evidence today including a video-link testimony from a witness who now lived in the US.