R v Feterika - [2007] NZCA 526

IN THE COURT OF APPEAL OF NEW ZEALAND
CA208/07
[2007] NZCA 526
THE QUEEN
v
VAI FETERIKA
Hearing:18 September 2007

Court:O'Regan, Potter and Keane JJ
Counsel:I S Sapolu and J M Fuimaono-Sapolu for Appellant

B J Horsley for Crown

Judgment:21 November 2007 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed

____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
[1]        On 4 July 2006 Vai Feterika and his co-accused, Peter Hunt, both aged 18, were found guilty at trial of aggravated robbery under s 235(1)(b) of the Crimes Act 1961. Their offence lay, the jury accepted, in together robbing on the street of his jacket and shoes another 18 year old boy, BJT. A third boy, considered to have played a part, was never apprehended. The trial Judge, Judge C S Blackie, considered that the parts they had played in the offence were virtually indistinguishable and sentenced each to two years and three months imprisonment.
[2]        On 19 April this year this Court set aside Mr Hunt’s conviction and sentence: R v Hunt [2007] NZCA 179. This Court held that Mr Hunt at most assaulted BJT, holding, punching and kicking him. There was no evidence that he had robbed him. The jury ought to have been directed, this Court held, that Mr Hunt could only be culpable as a party: if he assaulted intending to assist the principal offender or offenders to rob. The omission to direct the jury in that way, this Court was satisfied, and there were lesser causes for concern, had resulted in a miscarriage of justice. The Court discharged Mr Hunt outright. He was about to become eligible for parole.
[3]        This appeal, brought on 14 May this year, out of time, and only after Mr Hunt’s appeal succeeded, rests on the decision of this Court on that appeal. Mr Feterika contends that the part he played in the incident was indistinguishable from that played by Mr Hunt and that in his case also the Judge’s directions were deficient. He also contends that he was compromised in his defence by Mr Hunt’s counsel, who was meant to call the third boy and did not. He relies on lesser grounds that found favour, but were not independently decisive, on Mr Hunt’s appeal. As a matter of parity, he contends, his conviction and sentence ought to be set aside.
[4]        The Crown’s response to Mr Feterika’s primary point with which we are chiefly concerned is that, notwithstanding the decision of this Court in Hunt, the Judge directed the jury accurately as to the elements of the offence as they related to each accused and as to the Crown’s case against each. Mr Feterika and Mr Hunt, the Crown contended at trial, and contends still, were equally culpable. They may have played different parts. They engaged in a joint enterprise. They together assaulted with intent to rob, and indeed robbed, BJT. The third boy could equally have been implicated. That was enough. The law…

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 [2007] NZCA 526
Case: [2007] NZCA 526
Decision Date: 21 November 2007

CaseChat Overview and Summary

Vai Feterika and Peter Hunt, both 18 years old, were convicted of aggravated robbery under s 235(1)(b) of the Crimes Act 1961 for robbing BJT of his jacket and shoes. Hunt's conviction was quashed by this Court in April 2007, and he was discharged. Feterika appeals against his conviction, arguing that his culpability was indistinguishable from Hunt's and that the trial judge's directions to the jury were deficient. He also contends that his defence was compromised by Hunt's counsel's failure to call a third boy as a defence witness. The Crown contends that the trial judge's directions were accurate and that the law as to parties never came into play because Hunt and Feterika were equally culpable and engaged in a joint enterprise. The Court held that the trial judge's directions did not call for a direction under s 66 as to the culpability of the parties. The Court agreed that the standard direction the trial judge gave did not go far enough in the case of lesser players like Hunt, but in the case of Feterika, his part in the offending was plain, and no more detailed direction was necessary. The Court held that parity did not require that Feterika's conviction and sentence also be set aside, as his conviction and sentence fairly reflected his culpability. The Court also held that Feterika's other grounds of appeal were unavailing. Feterika's appeal against his conviction is dismissed, and he will be granted leave to appeal out of time. His sentence is not appealed, and it is largely served.

Orders