Papa v The Queen - [2015] NZCA 238

IN THE COURT OF APPEAL OF NEW ZEALAND

CA30/2015
[2015] NZCA 238

BETWEEN	KENNETH JAMES PAPA Appellant
AND	THE QUEEN Respondent

Hearing:	18 May 2015 (further submissions received 28 May 2015)
Court:	Harrison, Heath and Mallon JJ
Counsel:	M J Phelps for the Appellant J Carruthers for the Respondent
Judgment:	11 June 2015 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Kenneth Papa was jointly charged with Anthony Moore of demanding with menaces.[1] Both were convicted of that charge following a jury trial in the Napier District Court before Judge Mackintosh. Mr Papa appeals against his conviction.[2] The appeal is on the basis that the Judge’s directions on party liability and her response to a jury question were inadequate.

Background

[1]Crimes Act 1961, s 239(2).

[2]An appeal against the sentence imposed in R v Moore DC Napier CRI-2014-020-1099, 19 December 2014 was abandoned.

The charge concerned events that took place on 30 April 2014. A friend of Mr Papa’s had told him that Mr Grant (one of the complainants) had made inappropriate sexual advances on the friend’s daughter. The friend asked Mr Papa to have a word with Mr Grant about this. Mr Papa went to Mr Moore’s house in Hastings for that purpose. Mr Moore then invited Mr Grant to his house on a pretext. Mr Grant arrived with a friend, Mr Harris (the other complainant). They were met outside Mr Moore’s house by Mr Moore, who was wearing his Mongrel Mob patch, and Mr Papa. Mr Grant was confronted with the allegations. It was said that a payment of money could resolve the situation. Mr Moore went with Mr Grant and Mr Harris to obtain some money. Payment of $500 was made. Subsequently Mr Moore demanded $2,000 whereupon Mr Grant went to the police.
When interviewed by the police, Mr Papa said that, although he was “emotionally fired up” by the allegations, his intention was only to ask Mr Grant for his side of the story. He said that neither he nor Mr Moore demanded money from Mr Grant.[3] At trial Mr Papa’s defence was that he had only talked to the pair about the allegations and was not present when any mention of money was made. The issue for the jury was, therefore, whether Mr Papa had been involved in the demand for money, either by making the demand himself or by intentionally assisting Mr Moore in making it.
[3]For his part, Mr Moore said that he had not demanded money but Mr Grant and Mr Harris had proffered it.
At trial both Mr Grant and Mr Harris gave evidence:
(a)Mr Grant said that when they arrived at Mr Moore’s house, Mr Harris initially stayed in the car. Mr Grant approached Mr Moore, who was in the driveway, and Mr Papa came out of the house. Mr Papa and Mr Moore blocked him in and began yelling at him, accusing him of interference with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Papa v The Queen

Details

AGLC: Papa v The Queen [2015] NZCA 238
Case: [2015] NZCA 238
Decision Date: 11 June 2015 at 11 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal brought by Kenneth James Papa against his conviction for demanding with menaces. The appeal focused on the adequacy of the trial judge's directions to the jury on the matter of party liability and her response to a specific jury question during deliberations. The court was required to determine whether any errors in the judge's handling of these aspects of the trial process warranted a miscarriage of justice.

The appeal centred on two main legal issues: first, whether the trial judge's directions on party liability were adequate; and second, whether the judge's response to a jury question regarding party liability was sufficient. The court examined whether the judge's directions correctly explained the elements of the offence and the criteria for party liability, and whether her response to the jury question appropriately clarified the legal standards applicable to the case. The court noted that while a step-by-step jury question trail is generally considered best practice, its absence alone does not necessarily lead to a miscarriage of justice. The trial judge had provided a preliminary memorandum and expanded on the legal elements during her summing-up, which the court found to be adequate for the straightforward nature of the case. Regarding the jury question, the court found that while a more complete response might have been preferable, the judge's answer sufficiently clarified that mere passive presence without active involvement was insufficient to establish party liability.

The Court of Appeal dismissed the appeal, concluding that neither the trial judge's directions nor her response to the jury question gave rise to a risk of miscarriage of justice. The court highlighted the importance of ensuring that the appellate court receives accurate and complete information regarding the trial proceedings, including responses to jury questions, to properly assess the merits of an appeal. The court emphasised the need for thorough checks of the trial court's records, including the electronic log maintained by the Registrar, to facilitate a comprehensive review of the trial process.

Orders