Nuku v R

[2016] NZCA 179

IN THE COURT OF APPEAL OF NEW ZEALAND

CA7/2015
[2016] NZCA 179

BETWEEN	KARL TEANGIOTAU NUKU Appellant
AND	THE QUEEN Respondent

Hearing:	9 March 2016
Court:	Winkelmann, Peters and Collins JJ
Counsel:	Appellant in person I R Murray for Respondent P L Borich as counsel assisting the Court
Judgment:	6 May 2016 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Background  [5]
     Aggravated Robbery  [5]
     Possession of firearms  [12]
First ground of appeal: unreasonable verdict  [15]
     Relevant principles  [19]
     Analysis  [21]
         Aggravated Robbery  [21]
         Possession of firearms  [30]
Second ground of appeal: a miscarriage of justice occurred
     because Mr Nuku and Mr Pandey-Johnson were tried together    [36]
Third ground of appeal: prosecutorial misconduct  [39]

(a)Late amendment of indictment[41]

(b)Comments made by prosecuting counsel during Crown

opening and closing   [44]
             The phone  [45]
             The guns  [52]
             Inviting jury to disbelieve a witness/suggesting a motive to lie   [60]
             The gloves  [67]
             Person of interest  [70]

(c)Use of leading questions by Crown counsel  [71]

(d)Failure to draw the Judge’s attention to the absence of an

appropriate direction in relation to Mr Banks’ evidence[76]
Fourth ground of appeal: errors on the part of the trial Judge          [78]

(a)Judicial interventions  [78]

(b)Direction on admissibility  [81]

(c)Failure to direct what actual assistance meant  [86]

(d)Intoxication direction not given  [89]

(e)Jury question trail  [93]

Fifth ground of appeal: conduct of police officer  [98]
Outcome on conviction appeal  [99]
Appeal against sentence  [103]
Result  [109]

1. Mr Nuku was convicted, following a trial in the Auckland District Court before Judge Collins and a jury, of one charge of aggravated robbery and one charge of unlawful possession of firearms.  His co‑accused, Mr Pandey‑Johnson, was convicted on the same counts.  Mr Nuku was sentenced to eight and a half years’ imprisonment.[1]  He now appeals against conviction and sentence.

   [1]R v Nuku DC Auckland CRI-2011-443-15, 10 June 2014 at [18] [Sentencing notes].

2. Mr Nuku is self-represented in respect of this appeal.   Mr Borich was appointed as counsel to assist the Court to ensure that all arguments that should be made on appeal were before the Court.  Although, as it transpired, Mr Nuku was an effective advocate of his own cause, we were assisted by additional matters that Mr Borich was able to draw to our attention by way of clarification or amplification.

3. Mr Nuku advances multiple grounds in support of his conviction appeal as follows:

   (a)The jury verdict was unreasonable as it was not supported by the evidence.

   (b)A miscarriage of justice has occurred because the charges against Mr Nuku should not have been heard alongside those against Mr Pandey-Johnson.  Because they were tried together, the jury heard highly prejudicial evidence which was inadmissible against Mr Nuku. 

   (c)The Crown’s conduct of the case caused him unfair prejudice and amounted to prosecutorial misconduct. 

   (d)There were various errors by the trial…