Emery v The Queen
[2021] NZCA 158
•21 May 2021
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA601/2019 [2021] NZCA 158 |
| BETWEEN | KELLY JAMES EMERY |
| AND | THE QUEEN |
| CA49/2020 | ||
| BETWEEN | LANCE WAKA WILLIAMS | |
| AND | THE QUEEN | |
| Hearing: | 22 March 2021 |
Court: | Miller, Brewer and Dunningham JJ |
Counsel: | S L McColgan for Appellant CA601/2019 |
Judgment: | 21 May 2021 at 12.00 pm |
JUDGMENT OF THE COURT
A The conviction appeals are dismissed.
BThe sentence appeals are allowed. The sentences are quashed and the sentences remitted to the High Court for re-sentencing in light of this judgment. The appellants are remanded in custody to appear in the High Court at Auckland on 9 June 2021 at 9.00 am.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Messrs Emery and Williams are two of five men who faced trial on charges relating to two aggravated robberies and conspiring to commit another during a spree that began on 5 March 2018 and ended with their arrests 23 days later. The robbers targeted a MoneyShop and an ACM security van using stolen cars and a firearm, obtaining a total of approximately $109,779.10 in cash.
The principal trial issue on the completed offences was identity. On the conspiracy charge the appellants denied that what was being planned was a robbery, or that they were parties to it. The appellants were found guilty of the two charges of aggravated robbery, and Mr Williams was also found guilty of one charge of unlawful use of a motor vehicle and one charge of conspiracy to commit an aggravated robbery.[1] Messrs Williams and Emery were sentenced to 12 and 11 years’ imprisonment respectively, both with a minimum period of imprisonment (MPI) of 50 per cent.[2]
[1]Mr Emery also pled guilty to two charges of unlawful taking of a motor vehicle and one charge of unlawful possession an explosive, being shotgun cartridges.
[2]R v Williams [2019] NZHC 2614.
They appeal their convictions, alleging overreach by the Crown and errors by the trial Judge, and their sentences, saying the starting points were too high, the Judge wrongly refused to adjourn sentencing for cultural reports, and it was wrong to impose MPIs. The Crown contests all grounds of appeal except the issue relating to the cultural reports, inviting us to remit the appellants for resentencing or call for reports and sentence the appellants ourselves.
Narrative facts
The Crown case was that sometime before 5 March 2018, the appellants entered a conspiracy with Kavae Teina (allegedly the ringleader), Benny Muraahi and Adrian Tepania to commit aggravated robberies using a firearm. They acquired a double-barelled shotgun, blue overalls, balaclavas and latex gloves.
The offending began on 5 March 2018 when a Subaru car was stolen. It is not in dispute that Mr Emery and Mr Tepania stole it. The car was driven to a MoneyShop in Takanini and reversed into a car park. Two men got out, wearing disguises, while a third, the driver, remained in the car. One of the robbers carried what is said to be the double-barrelled shotgun. They held up the staff and took all the cash on the premises, $454.10, and the handbags of two of the staff members. The robbery was recorded on CCTV, which the men disabled before leaving the scene. They abandoned the Subaru nearby. Police found Mr Williams’s fingerprints on the back of the rear vision mirror and the driver’s seatbelt buckle.
On 6 March another Subaru was stolen, again by Messrs Emery and Tepania. The following morning that car was filmed following a marked ACM cash transit van in Takanini as the van serviced automatic teller machines in the area. It is not in dispute that a white Honda Accord, registered to Mr Williams, was also observed following the van. Earlier that morning Mr Emery was filmed driving the Honda into a service station and refuelling it. He was wearing a white T-shirt. He was seen talking there to Mr Tepania, who was driving another car.
When the van stopped at a bank at the Southgate shopping centre, the Subaru pulled alongside as the two ACM staff members were loading cash from the automatic teller machine. Two masked men got out of the car, one carrying what is said to be the same double-barelled shotgun, and the driver remained inside. A total of $109,325 was stolen. The offenders fled, allegedly followed by the Honda. The Honda’s movements after the robbery were not recorded on CCTV but it was recorded being driven into the car park at the shopping centre at the time of the robbery. The Crown maintained that Mr Emery was the driver of the Honda, purporting to identify him by what a Police officer who viewed the footage considered was a white T-shirt. The Subaru was abandoned nearby, and the Crown alleged that the offenders fled in the Honda.
The Police quickly identified the five defendants as likely suspects. They were watched, their telecommunications data was analysed and their cellular devices tracked. The Crown alleged that the data evidenced the involvement of all the men. They used coded language such as “movie” meaning, the Crown alleged, an aggravated robbery, and “birthday present”, meaning a firearm.
The Crown alleged that the intercepted communications disclosed that the men were planning another aggravated robbery. On 27 and 28 March 2018 their addresses were searched and evidence seized, including cash. The Crown alleged that their recent spending showed they had come into possession of large sums of cash. In Mr Williams’s Honda they found a black beanie and a black balaclava. He was also in possession of several shotgun cartridges. Hidden in Mr Emery’s wardrobe and chest of drawers they found a total of seven shotgun cartridges.
The trial
The men were all charged with the two aggravated robberies and conspiracy to commit a third. Messrs Teina, Muraahi and Williams were described at trial as the “A team” who actually committed the robberies. They were further charged with using the two cars dishonestly and without claim of right during the robberies. Mr Williams was said to have been the driver. Messrs Emery and Tepania, the “B team”, were charged with theft of the cars. Mr Emery was further charged with unlawful possession of an explosive, being the shotgun cartridges.
The trial began on 5 August 2019 in Auckland. On 14 August 2019, Peters J delivered a ruling which is important for reasons we explain later.[3] She allowed the Crown to adduce hearsay statements as evidence against the defendants under s 22A of the Evidence Act of the 2006, reasoning that there was sufficient evidence of a joint enterprise to commit aggravated robberies, that the enterprise encompassed both aggravated robberies and the subsequent specific conspiracy, and that the defendants were members of the conspiracy. She rejected a defence submission that there were two joint enterprises, the first culminating after the ACM security van. She also rejected the submission that there was insufficient evidence that the criminal offending being planned subsequently was aggravated robbery. Citing the judgment of this Court in R v Messenger, she accepted the Crown argument that it would be artificial to sever the period.[4] She was also satisfied that there was reasonable evidence that what was under discussion after 16 March 2018 was another robbery.[5] This ruling is not challenged on appeal.
[3]This is recorded in a reasons judgment of 18 February 2020: R v Teina [2020] NZHC 202.
[4]R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779.
[5]R v Teina, above n 3, at [19].
Mr Williams accepted that he knew the other defendants and was in communication with them throughout the period of the alleged conspiracy. He admitted that his fingerprints were in the first Subaru but maintained that was consistent with him getting into the car without realising it was later to be used for an offence. It was his case that the balaclava in his car could not be the one seen in the CCTV footage and described by the MoneyShop staff; that there was no evidence connecting him with the Honda Accord on the day of the second robbery; that he is much older than the estimate of the driver’s age given by an eyewitness at the MoneyShop; that around $10,000 in cash he and his partner had spent (buying a car for her and new wheels for the Honda) did not come from the robberies and the Police had returned the cars rather than forfeit them as proceeds of crime; and that the jury could not be certain that what the men were planning before 28 March 2018 was another aggravated robbery.
Mr Emery accepted that he knew the other defendants and was in communication with them throughout the period. He pleaded guilty during trial to stealing the two Subarus but maintained he had no idea what the others planned to use the cars for. He pleaded guilty also to possession of the shotgun cartridges. He admitted that it was he who refuelled Mr Williams’s Honda Accord before the second robbery, but he denied driving it at the Southgate shopping centre. He pointed out that $2,600 cash found in his possession and property purchased had not been forfeited but rather had been returned by the Police. His case on the conspiracy charge was that the Crown had not proved he was party to a conspiracy to commit an aggravated robbery and what they were discussing was some other criminal activity, likely drug dealing.
Crown counsel delivered a detailed closing address which marshalled the circumstantial evidence against the defendants. The address took much of the day of Friday 16 August 2019. Defence counsel delivered their closing addresses on 19 and 20 August and the Judge summed up for a little over an hour on 21 August 2019.
The jury found three of the five defendants, including the appellants, guilty of both the aggravated robbery charges.[6] The “A team” were convicted on the conspiracy charge but Mr Emery was not. Mr Williams was also found guilty of unlawfully using the first Subaru but acquitted of using the second.
The conviction appeals
[6]The two remaining defendants were Mr Teina (the jury could not reach a verdict for either charge) and Mr Tepania (the jury found him not guilty for the first aggravated robbery but could not reach a verdict on the second charge).
The appellants engaged new counsel for these appeals but there is no allegation of error against trial counsel. The appeals focus on the conduct of the prosecutor and the Judge’s rulings and summing-up.
Mr McColgan and Mr Niven helpfully provided joint submissions. The grounds concerned the prosecutor’s description of the defendants as “known criminal associates”, and multiple alleged failures by the Judge: to direct the jury on cross-admissibility of evidence as among the charges; to summarise the defence cases; to direct adequately on the inadmissibility of a statement by Mr Muraahi against other defendants; and to direct the jury on the Crown contention that there was no alternative explanation consistent with the defendants’ innocence. Mr McColgan also submitted that the jury heard inadmissible opinion evidence of a police officer purporting to establish that the driver of the Honda at the Southgate shopping centre was wearing a white T-shirt, and that the prosecutor wrongly asserted that Mr Emery was seen driving the Honda during the second robbery.
Known criminal associates
Prosecuting counsel, Ms Norrie and Mr Rhodes, twice referred to the defendants as “known criminal associates”, once at the end of Ms Norrie’s opening address and once when Mr Rhodes began his closing. Ms Norrie said in opening:
… The fact is that while there are lots of pieces of evidence, lots of different strands to this case, at the end of the day this really is a straightforward case. And the Crown case is that all five defendants are known criminal associates. As a group, the defendants formulated a plan to commit a number of robberies, specifically targeting premises where large amounts of cash were expected to be present. …
And in closing Mr Rhodes said as follows:
… . As Ms Norrie told you at the start of this trial last Monday this is from the Crown’s perspective a straightforward case. That doesn’t mean it isn’t detailed but the Crown says that the overall picture painted by the evidence is abundantly clear. Repeating what Ms Norrie said in opening to you the Crown case is that all five defendants are known criminal associates. As a group they formed a plan to commit a number of robberies, specifically targeting premises where large amounts of cash were expected to be present. Plans were made to steal cars shortly before each robbery for the purpose of driving to and from the targeted premise. Mr Tepania and Mr Emery were tasked with taking those cars. Mr Tepania and Mr Emery of course now have pleaded to guilty to doing so.
Mr McColgan submitted that the natural meaning of these remarks is that the Police knew the five defendants had offended together prior to the events that were the subject of the trial. The defendants were members of a gang, the Killer Beez, and there was propensity evidence that Mr Muraahi and Mr Teina had previously committed aggravated robberies, but there was no evidential foundation for a submission that the defendants were known criminal associates.
Ms Hoskin, for the Crown, readily accepted that in normal circumstances these statements would give cause for concern. But in this case the Crown alleged that the defendants were all engaged in joint criminal offending. They were accused of committing two robberies and planning a third. The jury heard intercepted communications in which criminal offending was clearly the subject of discussion. Indeed, the defendants did not really dispute that. Mr Emery accepted that criminal activity was afoot but suggested it was not aggravated robbery. In her summing-up the Judge told the jury that there was “no real argument from the defendants that the defendants were discussing committing some form of offence but the issue is what?”
We agree. We further observe that the Judge did not remark upon the statements by the prosecutor. No one asked her to. That strongly suggests that the statements did not assume the significance at trial that they are now said to bear.[7] In context, we do not think the jury would have taken the prosecutor’s statements to refer to offending on previous occasions. We observe that they were unable to reach verdicts on some of the charges against Mr Teina, one of the defendants in respect of whom propensity evidence was led.
Cross-admissibility of evidence as between charges
[7]See for example Arona v R [2018] NZCA 427 at [38] where inadmissible evidence was led at trial, but it did not assume the significance at trial the appellants later argued.
Mr McColgan submitted that the Judge failed to warn the jury about cross‑admissibility of evidence as between the charges, or to give the jury a propensity direction. That led to a risk that the jury might reason that if the defendants committed one of the robberies they must also have committed the other. Far from addressing this risk, the Judge repeated the Crown contention that when all the evidence was taken together the jury could properly infer that each defendant was guilty of the robberies. Counsel cited the judgments of this Court in R v Ngawhika, Knight v R and KM (CA249/2013) v R for the proposition that cross-admissibility and propensity directions were required,[8] and argued further that, the issue being identity, it was necessary that the propensity evidence show a distinctively similar fact pattern.[9]
[8]R v Ngawhika [2016] NZCA 311, (2016) 28 CRNZ 100; Knight v R [2018] NZCA 350; and KM (CA248/2013) v R [2014] NZCA 120.
[9]R v Ngawhika, above n 8, at [34]–[35].
We do not accept these submissions. As noted earlier, the Judge had ruled during the trial that hearsay statements were admissible against all of the defendants under the co-conspirators rule, reasoning that there was a single joint criminal enterprise from beginning to end.[10] The specific charges are merely instances of this conspiracy in action. The evidence of a conspiracy was all admissible on all charges. Of course the Crown had to prove that each defendant was involved, whether as principal or party, in the specific offence the subject of each charge. The Crown case rested heavily on communications in furtherance of the conspiracy, as the trial issue was identity and those communications tended to identify the defendants. Beyond that the Crown relied for the most part on circumstantial evidence linking the defendants’ movements and actions to the robberies.
[10]R v Teina, above n 3, at [20].
In these circumstances the Judge need not direct the jury that the evidence on each charge was not cross-admissible unless it qualified as propensity evidence. All that was necessary was that the Judge instruct the jury, as she did, that they must give separate consideration to each charge and must not assume the defendants were guilty of one charge merely because the Crown had proved its case on another. None of the cases cited by counsel involved a joint criminal enterprise. Knight and KM (CA249/2013) do not stand for counsel’s proposition at all and Ngawhika was a pre-trial appeal addressing the question whether evidence of burglaries widely separated in time and circumstance was cross-admissible as propensity evidence.
In the circumstances, we do not accept that any question of cross-admissibility arose in this case; and if it did, the evidence was so interconnected as to not require a direction.[11] There was no risk of illegitimate reasoning by the jury.
Failure to summarise defence cases
Parties’ submissions
[11]R v S [1998] 3 NZLR 392 (CA) at 400; and Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [41].
Counsel for the appellants argued that the Judge failed to summarise the defence cases and submitted that she was required to do so in a multi-accused case of some complexity in which the closing addresses took several days and bridged a weekend.
In relation to Mr Williams, counsel submitted that the Judge did not address his defence to the first robbery at all. When addressing the second robbery the Judge said only that the mere fact of a fingerprint in the earlier vehicle did not mean Mr Williams must be guilty. She made no mention of any of the defendants’ defences to the conspiracy charge, other than to note they had suggested it could have related to something other than an aggravated robbery.
In relation to Mr Emery, counsel submitted that the Judge contented herself with noting that Mr Emery said he did not know what the first car was to be used for and denied being the second getaway driver. She also pointed to the poor-quality photographic evidence of the Honda at the shopping centre.
Counsel submitted that trial counsel for Messrs Williams and Emery had adopted and added to the critique of “communal” aspects of the Crown case made by various defence counsel during closings. These included alternative explanations for text messages, gaps in time between those messages and the offences, and in relation to the second robbery the absence of any connection between the defendants and anyone who worked at ACM. They submitted that none of this was mentioned by the Judge.
Counsel submitted that the adequacy of the Judge’s summing-up was raised with her when the jury retired. The Judge called the jury back to address a communication received from them and took the opportunity to add that she had not repeated everything that counsel had said in their closing remarks and had observed that the jury had been taking notes, which she invited them to review during their deliberations. In short, the Judge refused to elaborate on what she had told the jury. As we explain at [53] below, this narrative is incorrect; trial counsel actually asked the Judge not to say more. Before us, however, appellate counsel maintained that the Judge was obliged to summarise the defences, trial counsels’ preference notwithstanding.
Ms Hoskin submitted that the Judge’s summaries of the defence cases, while brief, were adequate. They sufficed to identify the key themes of the defence cases. The Judge was evidently satisfied that the defence cases were fully understood by the jury. She was not required to do more in the circumstances. It was a relatively straightforward case in which the evidence was uncomplicated and substantially agreed. It was largely contained in 12 pages of agreed facts, a booklet containing the transcribed phone calls and messages, and a booklet containing photographs and CCTV stills. The respective arguments had been plainly and thoroughly stated by counsel. Against this backdrop, the Judge’s decision to summarise the cases broadly, reminding the jury of “some of the key points that you will want to consider” was appropriate. Ms Hoskin emphasised that the mix of verdicts indicates the jury understood and responded to the defences. She submitted that the Judge’s approach withstands scrutiny in the particular circumstances of this trial. And if the Court thinks the Judge ought to have done more, no possibility of a miscarriage arises.
Legal principles
The leading authority on a judge’s obligation to put the defence case is still R v Shipton, in which this Court said:[12]
[33] The underlying principle is that it is the absolute duty of a trial Judge to identify and adequately remind the jury of the defence case in relation to each defendant. It follows that a failure to refer in the summing up to a central line of defence that has been placed before the jury will generally result in the conviction being set aside, and a new trial ordered.
…
[35] There never has been, and is not now, any dispute as to the character of this fundamental requirement of a summing up. The difficulty in the vast majority of cases which advance on appeal under this head has lain rather in what is required in the fact-dependent circumstances of each case.
[12]R v Shipton [2007] 2 NZLR 218 (CA). Because of suppression orders, the judgment was issued, and is often cited, as A (CA301/05) v R CA301/05, 11 April 2006. We cite the reported version.
This Court went on to emphasise that a judge cannot, in general, rely on counsels’ closing speeches, for a trial judge speaks from a position of great authority. For that reason, judges should distinctly hesitate before concluding that they can safely rely on what has been said by counsel.[13] This Court cited observations of the English Court of Appeal in R v Amado-Taylor, in which it was said that the fact that members of the jury were taking notes does not relieve a judge of this responsibility.[14]
[13]At [38].
[14]At [39], citing R v Amado-Taylor [2000] 2 Cr App Rep 189 (CA).
That said, what is required of the judge always depends on the particular circumstances of the case at hand, particularly when it comes to the extent to which it is necessary to go into detail. As this Court explained in Waters v R:[15]
… there are limits on a judge’s duty to put the defence case to the jury. The judge must be satisfied that the defence case is fully understood by the jury. The extent of the detail that the judge must traverse will depend on the case. In a complex case, the judge will generally need to go through the key factual allegations for both sides, to give them order and coherence for the jury, and make it easier for them to carry out their assessment. In a simple case this is not as important, because the issues will be obvious and the facts to be determined will not require particular organisation to assist in deliberations, or particular elucidation to ensure a clear understanding of the respective positions. A judge is not required to repeat all defence counsel’s arguments or assist the defence case by setting out inconsistencies or other matters already referred to by counsel.
[9] But the Crown and defence case should be summarised at least as to their broad form in a balanced and clear way by the judge. It is a judge’s duty to assist a jury in its difficult task, and such a summary will help them. …
[15]Waters v R [2018] NZCA 84 (footnote omitted).
In Shipton this Court addressed the consequences of a breach of a judge’s duty to put the cases, holding that:[16]
[56] In New Zealand, a finding that the trial Judge failed to adequately put the defence case to the jury will normally result in a new trial (R v Maney, affirming R v Hopkirk (1994) 12 CRNZ 216).
[57] The relationship to a miscarriage of justice was put in the following terms by the English Court of Criminal Appeal in R v Badjan (1966) 50 Cr App R 141 at p 144:
“Where a cardinal line of defence is placed before the jury and that finds no reflection at any stage in the summing-up, it is in general impossible, in the view of this court, to say that the proviso [that is, not interfering with the verdict unless there is a substantial miscarriage of justice] can properly be applied so as to say that the conviction is secure in those circumstances.”
[16]R v Shipton, above n 12.
Shipton and the cases cited there[17] were decided under s 385 of the Crimes Act 1961. This case is governed by s 232 of the Criminal Procedure Act 2011, which provides that:
[17]Notably Maney v R CA116/99, 21 October 1999, which cited at [33] the judgment of this Court in Campbell v R [1954] NZLR 22 (CA). In Campbell this Court held that before allowing an appeal on this ground it must consider the “substantial miscarriage of justice” proviso in the statutory predecessor of s 232 of the Criminal Procedure Act, s 385 of the Crimes Act 1961: at 24–25.
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case.
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
As the Supreme Court explained in Haunui v R, agreeing with what this Court had said in Wiley v R, s 232 did not alter the task for an appellate court on a conviction appeal,[18] but it did reframe the test. The Supreme Court explained what is now required of an appellate court:[19]
… The question under s 232(4)(a) is “whether the error, irregularity or occurrence in or in relation to or affecting [the] trial has created a real risk the outcome was affected”. That question “requires consideration of whether there is a reasonable possibility another verdict would have been reached”. If the answer to that question is “no”, that is the end of the matter and the appeal will be dismissed. If the answer to that question is “yes”, we consider the effect of the Criminal Procedure Act is that the appeal court then asks whether it is sure of guilt. If the answer is “no”, the appeal will be allowed. If the answer is “yes”, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed. Finally, as we have noted, if the appeal court is satisfied that the jury’s verdict was unreasonable (s 232(2)(a)) or that the error has resulted in an unfair trial or a trial that was a nullity (s 232(4)(b)), the appeal will be allowed and the proviso reasoning does not apply.
(Footnotes omitted.)
[18]Haunui v R [2020] NZSC 153 at [50], citing Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
[19]At [67].
A trial judge’s failure to sum up the defence cases is not among the class of fundamental errors that will normally cause an appellate court to condemn the trial as unfair without further inquiry.[20] In Shipton, this Court recognised that a failure to put the defence case is not invariably fatal — rather the language used was that it will “normally” result in a new trial.[21] The Court usually inquires into the likely effect of the omission. When doing so, it considers whether the addresses of counsel adequately explained the respective cases on the trial issues and whether the jury would still have had the addresses clearly in mind when they began their deliberations.[22]
[20]There is a class of fundamental errors comprising counsel’s failure to follow instructions about plea, the election to give evidence, and whether to advance a defence based on the defendant’s version of events: Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65]. In R v Young [2009] NZCA 453 a trial was deemed unfair for a number of reasons including the Judge’s failure to put the defence case.
[21]R v Shipton, above n 12, at [56].
[22]See for example R v Young, above n 20 (the case was based around circumstantial evidence and this framework needed to be, and was not, explained to the jury: at [58]–[59); Gurran v R [2015] NZCA 347 (defence counsel heavily relied on an argument regarding a bloodstain in closing, meaning it would have been prominent in the jury’s mind when considering the evidence: at [58]); and Waters v R, above n 15 (closings and summing-up were all on one day, so they would have been fresh in the jury’s mind: at [11]).
It follows that an appellate court faced with this ground of appeal must first decide whether the judge’s duty to put the cases was breached. If it was, the breach was an error for the purposes of s 232(4). The court must next consider whether the error created a real risk that the outcome was affected; put another way, whether there is a reasonable possibility another verdict would have been reached. If the answer to that question is no, the appeal will be dismissed. If the answer is yes, the Criminal Procedure Act envisages that the court may go on to consider whether it is satisfied beyond reasonable doubt of the appellant’s guilt.
If satisfied that the duty was breached and there exists a reasonable possibility that the jury would have reached another verdict, it may be that the appellate court will find itself unsure of the appellant’s guilt. This is such a case. If satisfied that the Judge erred and the jury might have reached a different result, we would think it necessary to direct a retrial.
The Judge did not breach her duty to put the cases
The first question is whether the Judge breached her duty to put the defence cases. We are satisfied that she did not. Before explaining why, we summarise what she had to say about the defences.
The Judge dealt with the cases on a charge-by-charge basis rather than party by party.
(a) First aggravated robbery (charge 3)
The Judge summarised economically and clearly the Crown case about the role played by each defendant, distinguishing between principals and parties.
She did not specifically mention Mr Williams’s defence (or that of other members of the “A” team). He had attempted to exploit a gap in time between the theft of the first car and its recovery to explain the presence of his fingerprints. He also contrasted the presence of his fingerprint with the Crown’s insistence that the offenders were forensically aware and had worn gloves, suggesting that shows that when he sat in the driver’s seat he did not know the car was to be used in the robbery. He had further relied on the age discrepancy in the eyewitness description of the getaway driver, and he had also alleged that the balaclava found in his car did not match those described by witnesses.
The Judge did address Mr Emery’s defence, reminding the jury that he and Mr Tepania admitted stealing the Subaru but denied knowing what it was to be used for. While the Judge mentioned Mr Emery’s comments in a police interview that he had a limited role, she did not emphasis his argument that he was telling the truth (as compared to the Crown who alleged he was lying in this interview). The Crown had also alleged that he was the backup driver, collecting the robbers when they dumped the Subaru; she reminded the jury that this rested on an inference based on the Crown’s claim about the role he played in the second robbery.
(b) Unlawful use of the first Subaru (charge 2)
The Judge did not mention Mr Williams’s defence to this charge, which was the same as his defence for the robbery.
(c) Second aggravated robbery (charge 6)
With respect to Mr Williams, the Judge reminded the jury that counsel had said the fingerprint on the first car did not make him guilty of the second robbery. She did not remind the jury that Mr Williams’s position on the use of the Honda was that only Mr Emery had been seen doing anything with it, or that Mr Williams had contended that his communications around the robbery more likely related to drugs.
With respect to Mr Emery, the Judge reminded the jury that counsel had said the Crown case was drawing a very long bow, for the evidence showed only that early in the morning Mr Emery had been seen refuelling the Honda. The photographs from the second robbery did not show that he was driving or that the driver was wearing a white T-shirt.
(d) Unlawful use of the second Subaru (charge 5)
The Judge did not mention Mr Williams’s defence, which was the same as his defence to the aggravated robbery. However, this is the offence of which he was acquitted.
(e) Conspiracy to commit aggravated robbery (charge 7)
The Judge explained that there was no real dispute that the defendants were discussing the commission of some form of offence. The question was what offence. She reminded the jury that they had to be sure the codes used related to aggravated robbery and sure that what was being discussed was an aggravated robbery.
Mr Emery was acquitted of this charge. His counsel had drawn the jury’s attention to communications which he said evidenced friendship rather than any agreement to do anything. Mr Williams contends that the Judge did not adequately put his defence that the communications did not show he was party to a conspiracy. However, this argument rested on the proposition, which the Judge did put, that the codes may have referred to something else. It is true that the Judge did not mention specific examples of communications which counsel focused on, but she did not have to descend to that level of detail.
(f) Summary of Mr Emery’s defence adequate
We are satisfied that the summary of Mr Emery’s defence was adequate. Subject to what we have to say next, that for Mr Williams would not have been adequate, for the reasons given when discussing charges 2 and 3, above.
(g) Counsel asked the Judge not to say more
The trial record confirms that after the summing up concluded some counsel, notably counsel for Mr Teina, took issue with the absence of a summary of their client’s cases. However, counsel for Mr Williams was not among them. Counsel noted that Mr Williams maintained there was an innocent explanation for the fingerprints, but his preference was that the Judge “not say anything”. An adjournment was taken, during which counsel for the defendants plainly reached a consensus. When they returned to chambers the Judge made it clear that she was prepared to say more about the defence cases, but counsel withdrew their request that she do so. All counsel, including those for Messrs Williams and Emery, expressly confirmed their preference that she not say anything. Following this discussion the Judge spoke to the jury, as noted at [30] above, and reminded them that they must consider what counsel had said and make use of their notes.
In the circumstances the argument that the Judge refused to summarise the defence cases is untenable. So too is the argument that she was in breach of duty by failing to do so. The critical point here is that this has not been run as a counsel error appeal. In the absence of evidence from trial counsel we must assume that they had good reason to approach the case in the way they did and were confident that the jury adequately understood the cases. We add that the Judge evidently thought the defence cases had been well put by counsel and she formed the impression that the jury attended closely to what had been said.
There is no reason to think the jury overlooked the defence cases
The case was circumstantial but reasonably straightforward. The existence of a joint criminal enterprise was not in dispute. The question was whether each defendant was involved in each specific offence in the specific ways alleged by the Crown. The verdicts tend to confirm that the jury understood the defence cases and paid close attention to the evidence, as the table below shows:
| Charge 3: first robbery | Charge 2: first unlawful use | Charge 6: second robbery | Charge 5: second unlawful use | Charge 7: conspiracy | |
| Teina | No verdict | No verdict | No verdict | No verdict | Guilty |
| Muraahi | Guilty (majority verdict) | Guilty (majority verdict) | Guilty (majority verdict) | Guilty (majority verdict) | Guilty |
| Williams | Guilty | Guilty (majority verdict) | Guilty | No verdict | Guilty |
| Emery | Guilty | N/A | Guilty | N/A | Not guilty |
| Tepania | Not guilty (majority verdict) | N/A | No verdict | N/A | N/A |
Mr Emery must have been found to have been part of the overall criminal enterprise, but he was acquitted of the specific charge of conspiring to commit another aggravated robbery. Mr Williams’s acquittal on the charge of unlawful use of the second Subaru indicates that the jury were not sure he acted as driver but were sure that he was party to the offence.
This ground of appeal fails for both appellants.
Inadequate direction on inadmissibility of Mr Muraahi’s statement against the appellants
The appellants accept that many of the text messages and phone conversations led as part of the Crown case were admissible against all defendants as having been made in furtherance of a joint enterprise. Some, however, were not. This ground of appeal focused on a communication by Mr Muraahi to an unknown number in which he referred to a “solo movie” that he, the appellants and another defendant had made. That statement was admissible against Mr Muraahi alone.
Counsel accept that the Judge sought to explain this to the jury in conventional terms. She identified two specific passages in the transcript and said:
[53] On each of those pages, page 3 of both of those conversations, Mr Muraahi says something to the effect that he, Mr Teina, Mr Williams and Mr Emery have “pulled off a solo movie” or “thinged a little movie”. If you look at page 3 of tab 4, at the bottom right hand of page 3 “But, yeah, um, went and thinged, ah, like, solo movie” “just me, Karvs, Boldes and Kels”. And if you go to tab 20, page 3, again towards the bottom of the page “yeah just thinged a little movie” and then “just me, Karvs, Boldes and Kels”.
[54] What a “a little movie” might be or what a “movie” is, is something I will come back to a bit later but I am instructing you now that Mr Muraahi’s statements in those two specific passages are evidence for or against Mr Muraahi but no one else. You are not to put any weight on the references to Mr Teina, Mr Williams or Mr Emery in those specific passages.
The Judge went on to suggest that the jury put a line through the references to Mr Teina, Mr Williams and Mr Emery, referred to in the messages by known nicknames, and said:
[56] Is everyone following me? You’re not following me, ok. Go to tab 4, page 3 I want you to put a line, a couple of lines from the bottom you see Mr Muraahi says “Yeah. Oh, um, just me, Karvs, Boldes and Kels” “Just pulled off a solo”. Put a line through “Karvs, Boldes and Kels”. And do the same thing on page 3 at tab 20 and that way there is no risk of any problems, so take out “Karvs, Boldes and Kels”.
Mr McColgan suggested that it is evident the jury were confused by this direction. He submitted that the jury were left unsure as to whether that statement was admissible against the other defendants.
We do not accept this submission. In our view the Judge gave a clear direction and the passage to which counsel referred us simply confirms that the Judge was making sure the jury were left in no doubt as to the limited use that could be made of this evidence.
Failure to direct the jury on the Crown’s “no reasonable explanation” contention
Mr McColgan observed that the prosecutor suggested in closing that the jury should consider whether there were any reasonable alternative explanations for the evidence. Mr Rhodes made sure initially to note that the defendants were under no obligation to explain themselves, as that would entail a reversal of the burden of proof, but he went on to refer repeatedly to the absence of other reasonable explanations. Counsel submitted that this approach risked reversing the onus of proof.
We do not accept these references risked reversing the onus of proof. After using the phrase, the prosecutor made it clear that there could be no reversing of the onus. Defence counsel made the same point. They did not invite the Judge to correct what the prosecutor had said, suggesting that in context they did not think he had gone too far. The Judge both opened the trial by mentioning the onus and summed up on the topic, giving an orthodox direction that the onus lay on the Crown throughout and repeating that the Crown had to prove each element of each charge beyond reasonable doubt as she went through the question trail.
CCTV footage: Mr Emery
As noted, part of the Crown case against Mr Emery for the second robbery was that he had been seen driving Mr Williams’s car both when he refuelled it at a service station and at the shopping centre. This evidence depended on CCTV images.
The images from the service station were uncontroversial. They showed Mr Emery wearing a white T-shirt. The footage from the shopping centre was viewed by Detective Petersen, who tried to capture the content in photographs he took on his own phone as he sought to establish whether the Honda had been at the shopping centre. Through some miscommunication another officer did not retrieve the CCTV footage from the shopping centre, so the Crown found itself having to rely on Detective Petersen’s copied images at trial. The quality of the images was mediocre. The officer was permitted to give opinion evidence, based on extensive review of the footage, that he believed the driver was male and wearing a white T-shirt.
Mr Niven submitted that in the result, the jury neither saw the footage nor heard from an expert who had viewed it. Detective Petersen had no expertise in the area. His evidence accordingly had little probative value but carried a considerable risk of unfair prejudice. The Judge ought to have excluded the evidence, and if it was admitted, she ought to have issued a reliability warning.
We note that no objection was taken to the evidence at trial, nor did trial counsel request such a warning. As Ms Hoskin noted, it was initially agreed that the Detective’s evidence should be read and the CCTV stills were produced as part of the agreed facts. The defence stance was that the images showed the driver was wearing a long-sleeved garment of light colour.
We consider the Detective’s evidence was admissible as expert evidence founded on the time he had spent reviewing and analysing the images he had taken. His opinion evidence extended no further than saying he believed the man shown was wearing a white T-shirt. He did not venture an opinion as to identity. In the circumstances we are not persuaded that the evidence was unfairly prejudicial. On the other hand, it was probative. One of the images clearly suggests to us that the driver was wearing a white top, possibly a T-shirt, meaning that Mr Emery could not be excluded as the driver. The Detective was robustly challenged about his evidence and the jury had before them the still images to form their own opinion.
Crown claim in opening about the evidence against Mr Emery
Mr Niven also contended that the prosecutor misstated the evidence in opening the Crown case, stating that Mr Emery was seen driving the Honda in convoy with the stolen Subaru as the two cars began to follow the ACM van and again as the cars left the scene of the second robbery. We do not accept that this was a misstatement of the evidence. As Ms Hoskin submitted, it was merely the Crown articulating its case in its opening address. We accept that the evidence ultimately did not show that Mr Emery was seen driving the Honda in convoy with the stolen Subaru or away from the scene of the robbery, but the Crown prosecutor did not suggest otherwise in his closing address.
It follows that the conviction appeals must fail.
Letter of remorse from Mr Williams
Ms Hoskin invited us to rely on a letter of remorse written by Mr Williams before sentencing when considering the conviction appeal. In the letter he took “full responsibility for [his] actions” and apologised to the victims of the offending. Mr McColgan urged us to place little weight on this letter, arguing that had the trial not miscarried there is every chance it would not have been written and adding that it is in any event ambiguous.
We accept that a court may place weight on an admission made in such circumstances,[23] but we do not regard the statement in this case as a clear admission of guilt.
The sentence appeals
[23]See R v Vaitulia [2007] NZCA 525 at [21]–[24].
It was common ground before us that the appellants must be re-sentenced. They sought to, but ultimately did not, offer cultural reports under s 27 of the Sentencing Act 2002. Under that section an offender may request a sentencing court to hear a person called by the offender to speak on their background and its relevance to sentence.[24] The Court must hear that person unless satisfied that some special reason makes it unnecessary or inappropriate.[25]
[24]Sentencing Act 2002, s 27(1).
[25]Sentencing Act, s 27(2).
Counsel told us that they understand the Judge was not prepared to countenance a delay in sentencing and took the view that reports would make no difference as the appellants did not plead guilty. Counsel did not appear at trial, however, and the record does not support that contention. Rather, Peters J told counsel by minute of 19 September 2019 that she was not prepared to delay sentencing until mid‑November. That would have been three months after trial. At a callover the previous day the Crown had elected not to pursue a retrial for Mr Williams on the one charge that had not resulted in a verdict, but that ought to have had no bearing on preparation for his sentencing, which had been scheduled for 10 October 2019.[26] No reason has been given for delay in Mr Emery’s case.
[26]The Crown did suggest delaying sentencing for Messs Teina and Tepania pending their retrial.
The Judge was entitled to be concerned. Section 27 recognises that it can be appropriate to delay sentencing where necessary to obtain information, but it has not been suggested that the delay was necessary for that reason in this case. The public has an interest, as do victims, in bringing proceedings to an end. Nor did she refuse to receive reports. Rather, she indicated that she was prepared to grant a short adjournment “for a week or so”. She did express doubt that the sentences could be affected by the matters typically addressed in a cultural report, but she did not express a final view. Rather, she asked counsel to advise whether a short adjournment would assist them. Counsel elected not to offer information under s 27. We observe that such information need not take the form of a written report. Section 27 envisages that a defendant will call a person with knowledge of their background and rehabilitative prospects to speak to those matters at the sentencing hearing.
We are nonetheless prepared to allow the appellants an opportunity to remedy their omission by supplying reports, for two reasons. It may be, though there is no evidence of it, that there is an explanation for their inaction. And while accountability, denunciation and deterrence must be leading sentencing considerations for repeated offending of this dangerous kind the possibility that a report will affect the sentences cannot be excluded.
The appellants asked this Court to re-sentence them rather than remand them to appear in the High Court. The Crown took a neutral stance.
This Court has sometimes adjusted a sentence in reliance on a s 27 report prepared after sentencing where that is the practical course. In this case, we think sentencing should be done by the trial Judge who heard the evidence and is best placed to gauge culpability. There will be a contest; the Crown strongly resists the appeal on the merits. The exercise will traverse all sentencing considerations because the appellants contend that the totality-adjusted starting points were too high[27] and they will also rely on cultural reports to increase personal mitigation and eliminate the MPIs. We observe that counsel criticised Peters J for giving only brief reasons for the MPIs, but we expect that happened because trial counsel agreed 50 per cent was warranted. An appeal lies as of right against the resulting sentence, which is an important consideration in a case where the sentence is at large. If the sentencing were done here, they could appeal only by leave of the Supreme Court.
Decision
[27]Mr Williams received a starting point of 12 years’ imprisonment and Mr Emery received a starting point of 11 years’ imprisonment. Both appellants argued these starting points were too high when compared to cases that received comparable starting points but featured more serious offending: Lavea v R [2014] NZCA 192 (starting point of 10 years); and R v Collett CA83/04, 30 August 2004 (starting point of 11 years).
The conviction appeals are dismissed.
The sentence appeals are allowed. We quash the sentences and remit the sentences to the High Court to re-sentence in light of this judgment. We remand the appellants in custody to appear in the High Court at Auckland on 9 June 2021 at 9.00 am. That is a nominal date, fixed so the High Court can schedule the sentencing hearing.
Solicitors:
Crown Law Office, Wellington for Respondent
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