Emery v The Queen

The appeals in Emery v The Queen and Williams v The Queen concern the convictions and sentences of Kelly James Emery and Lance Waka Williams, who were convicted of two aggravated robberies, and Williams was also convicted of unlawful use of a motor vehicle and conspiracy to commit aggravated robbery. The appellants challenge their convictions, alleging errors by the Crown prosecutor and the trial Judge, and their sentences, arguing that the starting points were too high, the Judge wrongly refused to adjourn sentencing for cultural reports, and it was wrong to impose minimum periods of imprisonment (MPI). The Crown contests all grounds of appeal except the issue relating to the cultural reports.

The Court dismissed the conviction appeals, finding that the jury would have reached the same verdicts even if the alleged errors had not occurred. The Court allowed the sentence appeals, finding that the sentences must be quashed and remitted to the High Court for re-sentencing in light of this judgment. The appellants were remanded in custody to appear in the High Court at Auckland on 9 June 2021 at 9.00 am.

The Court found that the prosecutor's remarks about the defendants being "known criminal associates" did not give cause for concern as they were made in the context of the defendants being accused of joint criminal offending. The Court also found that the Judge did not breach her duty to summarise the defence cases as the jury understood the defences and the jury's verdicts indicated that they paid close attention to the evidence. The Court held that the Judge gave a clear direction to the jury on the limited use of a communication by Mr Muraahi, and the prosecutor's references to the absence of other reasonable explanations did not risk reversing the onus of proof.

The Court found that the appellants must be re-sentenced, and the Judge was entitled to be concerned about delaying sentencing. The Court was prepared to allow the appellants an opportunity to remedy their omission by supplying cultural reports. The Court held that the sentences should be done by the trial Judge who heard the evidence and is best placed to gauge culpability, and the exercise will traverse all sentencing considerations because the appellants contend that the totality-adjusted starting points were too high and they will also rely on cultural reports to increase personal mitigation and eliminate the MPIs.