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R v Feterika

R v Feterika

Case [2008] NZCA 127 20 May 2008

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA422/07
[2008] NZCA 127
THE QUEEN
v
VAI FETERIKA
Hearing:22 April 2008

Court:William Young P, Chisholm and Ronald Young JJ
Counsel:J M Fuimaono-Sapolu and J Milo for Appellant

M D Downs for Crown

Judgment:20 May 2008 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
[1] In late March 2006 in South Auckland there was a violent confrontation between a group of young men and another young man who was seriously injured. Others who came to his aid were also attacked and injured by the same group. The appellant, Mr Feterika, was convicted of wounding the young man with intent to cause grievous bodily harm (s 188(1) Crimes Act 1961) and sentenced to 10 years’ imprisonment. He was acquitted of three other charges relating to the assault of those who came to the complainant’s aid. The appellant appeals against his conviction and sentence.
Conviction appeal
[2] The appeal against conviction is based on four alleged errors by Judge Wade, the trial Judge. They are:
(i)the Judge’s use of a bank robbery scenario as an analogy when explaining “parties” to the jury;
(ii)the Judge’s jury directions on parties;
(iii)the Judge’s jury directions on self-defence; and
(iv)the Judge’s failure to identify an alternative lesser charge for jury consideration.

(i) Robbery analogy
[3]       The Crown case was that members of a youth gang had been searching for members of a rival gang on the evening of the assault. The appellant and others were uttering violent threats towards this other group. When they eventually found the complainant, whom they believed was a member of the rival gang, the appellant yelled out his gang’s name and then punched the complainant in the face. The complainant was then assaulted by a number of members of the gang, some of whom had weapons.
[4]       The Crown accepted it could not specifically identify the appellant as an attacker after his initial punch. Its case was primarily that he was a party to the offending by virtue of either s 66(1) or s 66(2) of the Crimes Act 1961.
[5]       The Crown case for s 66(1) was based on the proposition that when the appellant yelled out the gang name and punched the complainant this was a signal (encouragement) to others in the group to attack the complainant. The Crown also pointed to the previous discussions between the group in support of their claim that the appellant knew what was going to happen.
[6]       The Crown case for s 66(2) was based on evidence that the appellant and other members of the gang discussed assaulting members of the rival gang beforehand. The Crown said that this evidence established a common intention to assault members of the rival gang. The fact the appellant had travelled in a convoy of cars with others who had weapons illustrated the appellant would have known that grievous bodily harm was…

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 R v Feterika

Details

AGLC: R v Feterika [2008] NZCA 127
Case: [2008] NZCA 127
Decision Date: 20 May 2008

CaseChat Overview and Summary

In the case of R v Feterika, the appellant, Vai Feterika, appealed against both his conviction and sentence. The appellant was convicted of wounding with intent to cause grievous bodily harm and was sentenced to 10 years' imprisonment. The appeal against conviction was based on four alleged errors by the trial Judge. Firstly, the appellant argued that the Judge's use of a bank robbery scenario as an analogy when explaining "parties" to the jury was inappropriate and misleading. Secondly, the appellant claimed that the Judge's jury directions on parties were inadequate. Thirdly, the appellant submitted that the Judge's jury directions on self-defence were misdirected. Lastly, the appellant argued that the Judge failed to identify an alternative lesser charge for jury consideration. The Court of Appeal dismissed the appeal against conviction, finding that the Judge's directions were clear and that the jury would have understood the Crown had to prove common intention before convicting the appellant. The Court of Appeal also dismissed the sentencing appeal, finding that the Judge had considered all relevant factors and that the sentence was not manifestly excessive. The sentence was deemed appropriate given the appellant's role in the offending and his prior criminal history.

Orders