Edwards v The Queen
[2018] NZCA 93
•2 May 2018 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA637/2017 [2018] NZCA 93 |
| BETWEEN | JOSHUA TEREHUNGA EDWARDS |
| AND | THE QUEEN |
| Hearing: | 18 April 2018 |
Court: | Kós P, French and Miller JJ |
Counsel: | M A Stevens for Appellant |
Judgment: | 2 May 2018 at 3 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
Two young men are heading home up High Street, Dunedin, after a shopping trip. One is carrying some newly-bought shoes and socks. At the corner of High and Hope Streets they are accosted by Mr Grace. The shoes and socks are taken from them. Mr Grace later pleads guilty to aggravated robbery and is sentenced to a term of imprisonment. He is to observe that they were most expensive shoes he ever acquired. But Mr Grace is not alone. The issue at trial was whether the appellant, Mr Edwards, was also guilty of aggravated robbery. He is Mr Grace’s cousin. It is common ground that he was present for at least some of the time before the two groups separated. He was charged with aggravated robbery, as a principal.
Mr Edwards was convicted by a jury and sentenced by Judge Phillips in the District Court to two years and two months’ imprisonment.[1] His appeal is against conviction only. It is brought on the single contention that the jury’s verdict is unreasonable given inconsistences in testimony of witnesses at trial.
[1]R v Edwards [2017] NZDC 24066 at [12].
This judgment addresses three questions:
(a)When is a verdict unreasonable?
(b)What had to be proved by the Crown?
(c)Were the verdicts unreasonable?
When is a verdict unreasonable?
In R v Owen, the Supreme Court said:[2]
… a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.
[2]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
This Court has said that it is not its function to substitute its view of the evidence for a view which is reasonably open to the jury.[3] The weight to be given to discrete pieces of evidence, and assessment as to witness credibility, are essentially jury functions.[4] In R v Patel we observed:[5]
Verdicts based on credibility are likely to be overturned only where there is contemporary evidence which clearly contradicts the witness or in cases of glaring improbability. Inconsistencies alone are unlikely to reach that standard.
[3]Tamati v R [2010] NZCA 49 at [48].
[4]P (CA84/2017) v R [2017] NZCA 319 at [49]–[50].
[5]R v Patel [2009] NZCA 102 at [27].
These principles were common ground between counsel.
What had to be proved by the Crown?
The charge in this case was aggravated robbery under s 235(b) of the Crimes Act 1961. The Crown case was that Messrs Grace and Edwards together participated in the robbery of the complainants. Its case was that Mr Edwards was a principal offender, not a party to Mr Grace’s robbery.
To prove the offence, the Crown needed to establish that Mr Edwards was physically present, shared an intention to rob and played an active part in the robbery. This Court explained the position in Feterika v R:[6]
[33] Two or more persons must be physically present and share an intent to rob, inherent in which is the intent to steal using their collective force should that be called for. Sharing that intent, each must play some definite part to accomplish the design. One may assault or threaten assault and rob and on a s 66 analysis be a principal. Another may be present when the assault happens or threats made, and the robbery is accomplished, and do little more than afford active support. This person may on a s 66 analysis be a party. Under s 235(1)(b) he or she will still be a principal.
[34] If, by contrast, two or more persons are present and assault or threaten assault and one robs without the other or others anticipating that or willing it, that will fall short of aggravated robbery under s 235(1)(b). The principal offender will be guilty of the included offence, robbery, and perhaps assault. Any secondary offender may under s 66(1) be a party to the robbery and also be guilty of assault, but not more.
[6]Feterika v R [2007] NZCA 526.
As Ms Grau submitted for the Crown, it was immaterial which of the pair struck one of the complainants, or which snatched the bag, as long as both were present and acting together. What was required was that they both were active participants in the threats made to the complainants. More than merely aiding and abetting robbery by the other is required.[7]
[7]R v Galey [1985] 1 NZLR 230 (CA) at 234.
These principles were also common ground between counsel.
Were the verdicts unreasonable?
The complainants were Messrs Tosh and Barnes. Mr Tosh was the owner of the new shoes and socks and was carrying them in the bag. They both gave evidence at trial. A third witness, Mr Membery, was walking down High Street at the same time. He saw the incident and he too gave evidence at trial.
It may be observed that Mr Grace gave evidence in Mr Edwards’ defence. He sought to take complete responsibility and suggested his cousin Mr Edwards was a late-arriving innocent. We think the jury was entitled to disbelieve the evidence of Mr Grace, for three reasons. First, because he had an ulterior interest in securing the acquittal of his cousin. Secondly, because his evidence was inconsistent with Mr Edwards’ own account in a police interview, which was before the jury. Thirdly, because in his own police interview Mr Grace had said that he could not remember anything, because he had taken a cocktail of drugs. Yet in evidence he purported to give a detailed account of exactly what had happened.
Mr Edwards did not give evidence at trial.
The evidence of Messrs Tosh, Barnes and Membery did vary in significant respects. There were also internal inconsistencies in their recollections.
First, as to the order of events. Mr Tosh said the two men (which had to be Messrs Grace and Edwards, there being no third person) crossed the road and approached him and Mr Barnes at about the same time, yelling and threatening. Mr Barnes however had Mr Edwards arriving later, getting out of a car. Mr Tosh remembered one of them having got out of a car, but that they nonetheless approached him at about the same time. Mr Barnes became confused in evidence as to whether Mr Edwards got out of the car before or after the bag had been snatched. Mr Membery described the two assailants as coming out of a building (neither one from a car) and confronting the complainants at the same time.
Secondly, as to who approached whom. Both Mr Barnes and Mr Tosh had difficulty identifying Messrs Grace and Edwards from photo montages. Mr Tosh identified a man (who proved to be Mr Edwards) as approaching Mr Barnes, with Mr Grace approaching him and taking his bag. He would not budge from that. Mr Barnes identified Mr Edwards as approaching Mr Tosh, and Mr Grace as the man who punched Mr Barnes and then stole Mr Tosh’s bag. Mr Membery remembered only one of the men having facial tattoos, and that that person punched one of the complainants and stole the bag. But both Messrs Grace and Edwards are facially tattooed, and the evidence was that they were fairly similar height and build.
Thirdly, as to how long it all took. Mr Membery thought that incident could have taken five to 10 minutes, and probably 15. Mr Tosh (who got the time of day wrong in evidence) thought it only took about one minute. Mr Barnes thought that the incident was over within 30 seconds of Mr Edwards arriving.
Mrs Stevens submitted for Mr Edwards that the evidence of Mr Barnes should be preferred as more reliable, and that of Mr Tosh and Mr Membery rejected because of Mr Tosh’s confusion as to identity, and Mr Membery’s confusion as to timing.
In a criminal trial, particulars of events may vary between witnesses. Traumatic events commonly produce eyewitness error. Here, Messrs Grace and Edwards had similar builds and superficially similar facial appearances, so there was scope for confusion as to which of them was doing what. The essential task for the jurors was to isolate the elements of the offence alleged and ask whether the evidence left them sure as to guilt on each element. Inconsistencies in evidence may leave a juror with uncertainty as to one or more elements. Or it may cause the juror to doubt the reliability or credibility of a witness, so that that witness’s evidence is either disregarded or downgraded in addressing the essential task. But after undertaking that exercise the question remains: is a broadly consistent evidential substratum left from which the jury could legitimately be sure of the defendant’s guilt?
In this case, a sufficient evidential substratum does exist for conviction. All three witnesses described two men together at a time when the robbery remained in progress. That certainly was the common account of Messrs Tosh and Membery. Mr Barnes’ evidence was that Mr Edwards arrived later. But his evidence does not really help Mr Edwards. Mr Barnes still said that Mr Edwards demanded wallets, and also supported Mr Grace by getting “beside or behind” the complainants. Given that evidence, it is immaterial whether the bag had been taken before Mr Edwards joined in, that being the point Mr Barnes was unsure of. None of the witnesses accepted that the robbery was a “one man job”.
Although the witnesses contradicted each other in certain particulars, they were consistent about the threats and demands being made by both men, including Mr Edwards. The inconsistencies in detail did not undermine the essential Crown case. Nor did it create a glaring improbability. Despite the differences, the jury was entitled to regard the evidence of the three Crown witnesses as credible, their essential substratum evidence as to Mr Edwards’ participation in the robbery as reliable, and the evidence of Mr Grace as unreliable. The inconsistencies between the Crown witnesses were not so substantial as to displace the common evidential substratum.
The inconsistencies in evidence were placed squarely before the jury in defence counsel’s closing address. The jury was invited to doubt the accounts given by the Crown witnesses, and correspondingly to give credence to that given by Mr Grace. The Judge drew attention to these matters in his summing-up. No complaint is made about the terms of that summing-up.
The jury was, therefore, entitled to be sure that Mr Edwards was acting together with Mr Grace when Mr Grace robbed Mr Tosh, and shared his intent to rob.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent