Papa v The Queen
[2015] NZCA 238
•11 June 2015 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA30/2015 [2015] NZCA 238 |
| BETWEEN | KENNETH JAMES PAPA |
| AND | THE QUEEN |
| Hearing: | 18 May 2015 (further submissions received 28 May 2015) |
Court: | Harrison, Heath and Mallon JJ |
Counsel: | M J Phelps for the Appellant |
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 the girl. Mr Papa said that he was leaving it to Mr Moore what was to happen, but that if it was up to him, he would take Mr Grant for a ride to get beaten up by mobsters. Mr Grant accepted in cross-examination that he had earlier told the police that Mr Papa had first mentioned getting money to make the problem go away. He said this was a mistake and that it was Mr Moore who first raised the payment of money. He clarified that both Mr Papa and Mr Moore demanded money from him. He said that once Mr Harris was out of the car it was really only Mr Moore who was talking to him. He accepted that Mr Papa had gone inside a few minutes before Mr Moore left with them to get the money.
(b)Mr Harris’ evidence was that when he joined Mr Grant on the driveway, both Mr Papa and Mr Moore were present. He initially said that Mr Papa wanted money. He said that Mr Papa went inside and Mr Moore said that he was here to help them and that “here’s an option money, two grand”. It was put to him in cross-examination that he had not mentioned in his statement to the police that Mr Papa had demanded money. Mr Harris said that Mr Papa “was just pretty much backing it up”. He said that Mr Harris was demanding money and Mr Papa was the one saying that Mr Grant would be chucked in the back of the boot. In re-examination he said that Mr Papa was in and outside the house but was backing up Mr Moore’s demand by saying “otherwise you’re in that boot”.
The Crown closed on the basis that Mr Moore had raised the payment of money as an option and that Mr Papa had backed him up by saying that Mr Grant would be going for a ride in the boot if he did not come up with the money. The defence submitted that the jury could not be sure that Mr Papa was present when money was sought from Mr Grant, as Mr Grant and Mr Harris had not given consistent evidence about that, and Mr Papa’s involvement ended when he went into the house.
Direction on party liability
Mr Phelps, who did not appear for Mr Papa at trial, submits that the Judge’s direction on party liability was inadequate. The Judge did not provide a jury question trail setting out a step by step approach with reference to the factual findings the jury needed to make.[4] Mr Phelps submits that as a result the Judge did not fully explain the elements of the offence,[5] identify the facts relevant to those elements and link them to what needed to be proved to establish liability, and did not indicate what the defence position was.
[4]R v Vaihu [2009] NZCA 111.
[5]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [83].
Although a step by step jury question trail is regarded as contemporary best practice in criminal trials,[6] a miscarriage of justice does not arise simply because the practice is not followed in a particular case.[7] The Judge provided a preliminary memorandum to the jury at the beginning of the trial which set out the legal elements of demanding with menaces and addressed what being a party to an offence meant. The Judge referred the jury to that memorandum in her summing-up and expanded upon the legal elements. In doing so she explained that party liability required proof of doing something to help a person commit an offence, with the intention of helping that person commit the offence and knowledge of the essential facts of the offence. It is not suggested that either the memorandum or the summing-up inaccurately set out the elements.
[6]Singh v R [2014] NZCA 306 at [1]–[2].
[7]See, for example, R v Hira [2009] NZCA 144 at [52].
Party liability can sometimes be complex and in such cases a step by step jury question trail should be provided.[8] However this case was straightforward. Either the jury were satisfied that Mr Papa knew of Mr Moore’s proposal for money and intentionally lent his support to that or they were not so satisfied. That would depend on whether the jury accepted the evidence of Mr Grant and Mr Harris that Mr Papa was present when money was discussed and that he backed that up with his own threats (as the Crown alleged).
[8]Ahsin v R, above n 5, was such a case.
The Judge accurately summarised the Crown and the defendants’ positions. She noted that the trial was really about the facts and said that “in order to find this charge proved you do have to be satisfied that each of the defendants was involved in making the demand for money”.[9] We are satisfied that there was no error in the Judge’s explanation of how party liability would be proven on the facts of this case.
Jury question
[9]The Judge had earlier explained to the jury that they could give different verdicts for each defendant.
The jury commenced their deliberations at 3.13 pm on the second day of the trial. At 4.51 pm the jury asked the following question:
If Papa does not assist or encourage the crime, but is aware of the crime and does nothing to prevent it, is he still a party to the crime?
The appeal was argued without reference to important information about the way in which the Judge responded to the jury question. On the information then available, it appeared that there were grounds for concern about the process followed in answering the question and the answer that was given. We directed that further enquiries be made and counsel were given an opportunity to make further submissions in light of those enquiries.
It transpired that the Judge had approached the question correctly by first discussing the question with counsel in chambers before providing her answer to the jury and that her answer was not as both counsel appearing on the appeal had originally understood it to be.[10] She had also prepared a minute recording her direction. The answer she gave to the jury was as follows:
The Crown case on parties in this trial is that both of the defendants actually made threats as have been described in the evidence and were lending support to each other by their presence and their words and actions. Being a party does involve the taking of some positive step by words or actions or both. Some degree of active involvement is necessary. Mere passive presence as a bystander or an onlooker is not enough. So if you took the view that Mr Papa was standing there with a passive presence and acting as a bystander or an onlooker, that would not be enough to make him a party to the crime.
[10]A transcript of that discussion and her direction was available. The discussion with counsel was at 4.51 pm and the direction to the jury was given at 4.55 pm.
Mr Phelps submits that this response was inadequate. He submits that the jury’s question revealed that the jury was focussed on the issue of party liability. He says that the Judge’s direction raised a real risk that the jury could find Mr Papa guilty if they were satisfied he had made the threats, without considering whether this encouraged or assisted Mr Moore, whether Mr Papa intended to encourage or assist Mr Moore, and whether Mr Papa knew the essential facts (namely that Mr Moore would make demands with menace and with an intention to steal).
We agree that a more complete response to the jury question would have covered those points. However we are satisfied that the response given did not give rise to a risk of miscarriage of justice. The jury’s question proceeded from the basis that Mr Papa was aware of the crime. The jury’s focus was on whether, in those circumstances, it would be enough if Mr Papa did nothing to prevent it.
The Judge’s direction made it clear that this was not enough, and that Mr Papa would need to take some positive steps to be guilty of the offence. She reminded the jury that the Crown case was that both Mr Papa and Mr Moore were making threats and lending support to each other by their words or actions. It was therefore clear to the jury that they could only find Mr Papa guilty if they were sure that this is what occurred.
Result
The appeal is dismissed.
Addendum
We have commented on the incomplete information provided to us about the way in which the Judge dealt with the jury question.[11] We emphasise the need, particularly in cases where trial counsel do not appear on appeal, for a thorough check of the trial court's record (including the electronic log maintained by the Registrar during the trial) to ensure that this Court receives all relevant information about the way in which the Judge dealt with any legal points arising during the trial, including responses to jury questions. The log can often identify times when discussions occur in Court for Chambers. Transcription of those discussions will often be helpful when considering the points raised on appeal.
[11]At [11] above.
Solicitors:
Crown Law Office, Wellington for Respondent