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 as to parties never came into play.  It applied only consequentially if they were found not guilty of aggravated robbery and then only as to any included offence. 

[5]        Alternatively, the Crown contends, this Court vacated Mr Hunt’s conviction because it concluded that the evidence fell short of establishing that he was a principal in the joint enterprise.  That did not assist Mr Feterika.  On the evidence, this Court considered, Mr Feterika and the third boy acting together could well have been principals.

Assault and robbery

[6]        On 13 September 2005 towards 5 pm, Mr Feterika, Mr Hunt, the third boy never apprehended and two young women were travelling along Koppins Road, Otahuhu, in a borrowed station wagon.  They passed BJT, a boy of their own age, walking on his own.  They stopped.  Mr Feterika challenged BJT to fight.  BJT was unwilling.  Mr Feterika punched him to the ground where he remained.  Mr Hunt joined the assault.  He kicked BJT.  BJT said that the third boy removed his shoes.  He did not know who removed his jacket.

[7]        There was a momentary pause in the assault when a woman, outside whose house this happened, returned home.  She saw Mr Hunt holding BJT down and punching him.  She saw Mr Feterika kicking BJT to his upper body and face and punching him.  She noticed the third boy in the melee.  She did not see him clearly and for some part of the time he appears to have been at a distance behind trees.

[8]        This woman immediately challenged Mr Feterika and Mr Hunt.  Mr Feterika justified the assault, she recalled, by saying, “He’s my cousin and he’s got my jacket and I’m going to get it – I’m gonna get it off him”.  To that she responded, “If that’s your cousin then you should treat him better, you shouldn’t be doing that”.  Immediately she said that, however, she realised that what he had said to her had to be untrue.  She recognised BJT as the son of a near neighbour.

[9]        Mr Feterika and Mr Hunt continued with the assault and the witness left to alert the victim’s mother.  Both returned.  By then the assault had come to an end.  The witness saw BJT decamp, as it happens over her fence.  She noticed that he was without his shoes.  She did not see who took his shoes or his jacket.  She assumed that Mr Feterika had taken the jacket because of what he had said to her.  She saw Mr Feterika, Mr Hunt and the third boy go back to the station wagon.  She did not see any of them carrying the shoes or jacket.  She did note the registration number of the station wagon.

[10]     Two days later the police apprehended Mr Feterika and Mr Hunt.  They still had the station wagon, which belonged to a friend of theirs (not the third boy implicated in the robbery).  In the station wagon was BJT’s jacket.  Mr Feterika certainly, perhaps also Mr Hunt, admitted the assault.  They denied the robbery.  Each attributed that to the third boy.

Crown case and trial direction

[11]     Mr Feterika’s and Mr Hunt’s offence, according to the indictment and the jury’s verdict, was an aggravated robbery under s 235(1)(b) in which each was equally culpable.  The charge, as framed, included the third person never identified.  They were said to have robbed BJT of his jacket and shoes “being together and with another”.

[12]     In closing, counsel for the Crown confirmed to the jury that the Crown’s case was that Mr Feterika and Mr Hunt were equally implicated and the third boy perhaps also.  Counsel said:

To become an aggravated robbery you just need the involvement of two or more people.  The Crown case is simple, these two, and perhaps also the third person, the man in the cap were involved.

[13]     The question was, counsel said, what role each had played and that brought into play the law as to parties as to which, he said, he anticipated the Judge would direct them.  He then said almost immediately, however, that the offence itself called for more than one person and on the Crown’s case two at least were involved, Mr Feterika and Mr Hunt.  Their roles might have differed.  They were still equally culpable.  Each had joined in accomplishing the theft of the jacket and shoes by force.

[14]     There was no dispute, Mr Feterika’s counsel said in closing, that BJT’s jacket and shoes were taken.  Mr Feterika accepted also, his counsel said, that he had assaulted BJT.  He denied taking the jacket and shoes or any intent to take them.  He did he know that anyone else intended to do that.  They were taken by the third boy unexpectedly.  The assault and the robbery may have coincided.  They were unrelated.  That, in essence, was Mr Hunt’s stance as well.

[15]     The principal issue, the Judge directed the jury, was whether Mr Hunt and Mr Feterika had, together and with another, robbed BJT of his jacket and shoes.  The essence of the offence, he said, was that two or more were involved.  He likened the offence to a three legged stool, each of which must be present for the stool to stand:

[20]Let us look at the legs that are required here.  The first leg is that the Crown must prove beyond reasonable doubt that the accused were acting together, they were involved together.  At least two of them were acting together.  In other words they had a joint purpose.  They were ‘in it’ together.  They might have played different parts in what the activity was but nevertheless those parts when combined put them in the same boat as it were.  They were in it together.  They must have been involved in some way in what was taking place.  That is the first leg that the Crown must prove, leg no. 1.

[21]Leg no. 2 is that while acting together in their joint purpose, to use that word, they assaulted the complainant … Assault has got a legal meaning.  It simply means the deliberate application of force.  What is force? It can be the slightest touch or it can be a substantial blow or a kick or something of that nature.  In this case you have heard what the Crown has said about the force that was used.  You have heard BJT speak about it, you have heard … (the witness) talk about it, so there has got to be the use of force by these accused, whether the two of them or the three of them.  So they have got to be involved in the use of force.

[22]Then the third leg is that the intention of using this force was to rob the complainant, BJT.  Again people do different things in the enterprise but the use of the force was to rob the complainant.  ‘Rob’ simply means to steal or take somebody’s possessions.  I talked yesterday about how you can rob somebody by simply pulling a handbag out of their hands as you walk past, using force.  Assault of course to pull away the handbag.

[23]Likewise the Crown say here that the force was used to subdue BJT on the ground and in the course of that to take his shoes and take his jacket.  The Crown must prove in the taking that the accused were acting dishonestly, in other words they had no right to take it, it was not theirs, they had no right to take it, and that their intention in taking the jacket and shoes was to deprive BJT of those items permanently …

[16]     After then summarising these three legs of the offence the Judge went on to say this:

[25]I think we can accept that there were a total of three people involved in this alleged robbery, the two accused, it is alleged and a third person who we haven’t heard from or have not heard about except by name, called Jack, and it would seem that he was the person wearing the blue cap.  He is not before the Court but that does not matter as far as the prosecution of this particular charge is concerned.  You can only deal with the two persons that are before the Court.

[17]     The Judge reminded the jury a second time of the three stool analogy, culminating in the achievement of the joint purpose, the intent to rob; and then, when he came to summarise the Crown and defence cases, he outlined them in this way:

[40]What do the Crown say that you should draw from this evidence? They say that the ingredients of a robbery have all been proved.  They were acting together, the three of them.  It was a joint enterprise, they were all in on it, they all took part in the assault and whereas they may not all have physically removed the jacket or shoes, there is no evidence of who actually did that other than what BJT says about the shoes being moved by the man with the cap, that nevertheless they all took part in it because it would be difficult to get a jacket off somebody, and you will remember BJT was wearing his jacket.  They all took a part, whether it was holding him down, subduing him in some way, the jacket was taken as part of that common enterprise.

[41]That is what the Crown is saying, they were all in it together, they all knew what was going on and they took off with the jacket in the same car.  The jacket was found in the car two days with the accused there, both of them there, and this third person who apparently ran off.  So that is what they say.  They say that they have proved the charge beyond reasonable doubt.  The inevitable only inference you can draw about the intention of these two men is that they were involved in this robbery.  It was more than just an assault, it was an assault with intention to steal, to take these items off the victim and the Crown reminds you of what … (the witness) said when she asked them to stop and what Feterika said about his cousin’s jacket.

[42]The defence on the other hand say, no, no, just pause.  Yes we accept that there was some fighting, accept we were involved in the assault but we had nothing to do with the taking of the jacket or the shoes, that was done by somebody else, we had no arrangement, we had no intention to get involved in the taking of anything.  As far as Mr Feterika says, I would not be involved in that sort of thing, I would have given it back, he says.  Likewise, Mr Hunt similarly in his statement did not say he would give it back, but was not involved in the actual taking.

[43]In other words, it was not their intention to rob.  Whatever the intention of the other guy, it wasn’t theirs.  It was not their intention to rob.  They point out of course that it is for the Crown to prove that it was their intention, for the Crown to prove that that is the inference that you should draw, that is the logical inference that you should draw.  And if the Crown falls short on doing that, you will remember Ms Hughes going through grades, grades of falling short.  Possible, yes that’s not good enough.  Probable, well that is not good enough.  You have to be sure that it was the intention of these two to be involved in the physical taking of the clothes, the shoes and the jacket.  And Mr Patea said similar things.

Hunt appeal

[18]     Mr Hunt’s defence at trial, this Court said on his appeal, was that while he may have assaulted BJT, he played no part in the robbery.  He denied taking the jacket or the shoes (and thus being a principal) and he denied knowing that the robbery was impending or intending it (and thus was not a party either).  The Crown’s case, this Court held, was and had to be that he was a party.

[19]     Counsel for the Crown in closing, the Court noted, referred to the concept of parties, thus invoking, under s 66(1) of the Crimes Act, the concept of aiding and abetting.  That indeed, this Court held, on the evidence against Mr Hunt, was the only way in which the Crown could have advanced its case.  The evidence went no further than that Mr Hunt was active in the assault and in holding BJT.  He could only have been complicit, and then only as a party, if he knew that the jacket and shoes were to be taken and assaulted to assist that to happen.

[20]     This Court did not accept, at [14], that it was enough for the Judge to have directed the jury, as he did, that it had to be satisfied that Mr Hunt had an intent to rob.  BJT’s evidence, it said at [15], implicated the third boy as a principal and the witness’s evidence implicated Mr Feterika as a principal equally.  There was no such evidence directly implicating Mr Hunt.

[21]     Drawing on R v Fa’apusa CA300/06 13 December 2006, this Court held, at [16], the Judge should have directed the jury that they could only convict Mr Hunt of the offence if they were satisfied beyond reasonable doubt:

(a)that Mr Hunt knew that Mr Feterika or Jack (depending on who was the principal) intended to rob the victim of his clothes;

(b)that Mr Hunt actively assisted in the robbery by punching, kicking and/or holding the victim to facilitate the robbery;

(c)that Mr Hunt intended his actions to aid the robbery to occur.

[22]     Mr Feterika’s counsel submits, therefore, on this appeal that the Judge should have directed the jury first to consider whether he was a principal, then a party.  Could they be satisfied beyond reasonable doubt that he joined with at least one other in assaulting BJT, intent on robbing him and indeed robbed him? Or if not that, could they be satisfied beyond reasonable doubt that he knew that BJT was to be robbed, that he intended that to happen and actively assisted?

Aggravated robbery – s 235(1)(b)

[23]     On Mr Hunt’s appeal this Court did not express any concern about the directions the Judge gave as to the elements of aggravated robbery under s 235(1)(b).  The Court considered rather that the direction the Judge gave ought to have been supplemented, in the case of Mr Hunt at any rate, by a s 66(1) party direction.

[24]     The direction the Judge gave was, in fact, the standard direction as to the elements of aggravated robbery under s 235(1)(b), a direction endorsed in essence by this Court in R v Gruenwald CA99/04 9 August 2004 at [18] – [23].  The Court said at [23]:

The jury are to be directed that, to succeed on this kind of charge, the Crown has to prove beyond reasonable doubt: first, that an accused was acting “together with” at least one other person (that is, with a joint purpose); second, that as part of the joint purpose the accused, or one of them, assaulted the complainant or threatened to assault the complainant; third, that the joint intention or purpose in assaulting the complainant was robbery. 

[25]     The Court in Gruenwald derived this prescription from R v Galey [1985] 1 NZLR 230 at 234 (CA); and, indirectly, from The Queen v Joyce [1968] NZLR 1070 (CA). And in Joyce this Court, at 1075, made a distinction critical to this appeal.

[26]     Aggravated robbery under s 235(1)(b), this Court held, was to be distinguished from its two cognate offences, robbery aggravated by grievous bodily harm (s 235(1)(a)) and robbery aggravated by possession of a weapon (s 235(1)(c)).  It was to be distinguished equally, the Court held, from assault with intent to rob under s 237; an offence analogous to wounding with intent to cause grievous bodily harm under s 188, the offence in Fa’apusa.

[27]     Each of those offences from which s 235(1)(b) was to be distinguished, this Court held, could under s 66 be committed by a party.  But aggravated robbery under s 235(1)(b) stood differently.  It contained as it does still a distinctive aggravating ingredient, “being together with any other person or persons”.  That collective element, this Court held in effect, displaces s 66.  Each participant must be principally culpable; and two or more must be so for the offence to be committed at all.  The Court said:

In the case of a charge laid under that paragraph, in our opinion, the Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred.  We reach this conclusion for the reason that we are of opinion that the Legislature, in enacting s 235(b) carrying as it does a higher penalty, intended to provide for cases where the victim was confronted by two or more persons acting in concert.

[28]      In Joyce the victim was confronted by only one person.  The appellant was not immediately and actively present.  He was lurking nearby.  He could not then have been convicted, the Court held, of being a party to aggravated robbery.  There was no aggravated robbery.  Two or more had to be immediately involved.  The jury could only, if invited, have convicted him of being a party to the included offence, assault with intent to rob. 

[29]     In Galey this Court held consistently, at 234:

We believe that the expression “being together with any other person or persons” … [is] intended to apply only in situations where the presence together is proved of two or more persons having the common intention to use their combined force, either in any event or as circumstances might require, directly in the perpetration of the crime.

[30]     The Court also, at 234, went to the corollary:

[T]he judgment in Joyce strengthens our view that s 235(1)(b) was intended to apply only to cases where the forces of two or more persons, acting in concert, are deployed against the victim in the actual commission of the offence.  Joyce demonstrates that a lack of physical proximity may negative the statutory requirement of “being together”.

[31]     There is also this further nuance.  In R v Edwards CA60/00 25 July 2000 this Court, at [17], confirmed that when in Galey this Court spoke of “force” it did not mean actual violence:

The dictum in that case requires only that there be a common intention by the co-offenders to use their combined force directly in the perpetration of the crime.  It does not matter that no violence occurred or that no violence was necessarily intended.  What is required for the purposes of R v Galey is that the co-offenders have combined for the purpose of committing the crime in question; in this case, the crime of aggravated robbery.

[32]     The result is, as we understand these cases, that the primary issue for the jury, whenever an aggravated robbery is alleged under s 235(1)(b) is whether each accused, and there must always be more than one, is complicit in the joint enterprise.  It is not relevant whether under s 66 one may be a principal and another a party.  That distinction has no part in the analysis.  Section 235(1)(b) is sufficient unto itself. 

[33]     Two or more persons must be physically present and share an intent to rob, inherent in which is the intent to steal using their collective force should that be called for.  Sharing that intent, each must play some definite part to accomplish the design.  One may assault or threaten assault and rob and on a s 66 analysis be a principal.  Another may be present when the assault happens or threats made, and the robbery is accomplished, and do little more than afford active support.  This person may on a s 66 analysis be a party.  Under s 235(1)(b) he or she will still be a principal.

[34]     If, by contrast, two or more persons are present and assault or threaten assault and one robs without the other or others anticipating that or willing it, that will fall short of aggravated robbery under s 235(1)(b).  The principal offender will be guilty of the included offence, robbery, and perhaps assault.  Any secondary offender may under s 66(1) be a party to the robbery and also be guilty of assault, but not more.

[35]     With deference then to this Court in Hunt, we consider that the directions the Judge gave the jury as to the parts Mr Hunt and Mr Feterika played in the offence charged, an aggravated robbery under s 235(1)(b), did not, indeed could not, call for a direction under s 66 as to their culpability as parties.  To the extent then, we consider, that the Court, at [16] of its decision (see [21] above), required that such a direction be given, in addition to the standard s 235(1)(b) direction, it acted per incuriam.  That aspect of its decision cannot bind.

[36]     We do agree with the Court in Hunt that the standard direction the Judge gave did not in the case of Mr Hunt go far enough.  Almost invariably offenders in an aggravated robbery play different parts.  Those played by the principal players may be self-evident and the general direction adequate.  Those played by lesser players like Mr Hunt may be less self-evident.  Then, as this Court said in Hunt, the trial Judge will need to be more particular.

[37]     In the case of lesser players certainly, but perhaps also sometimes in the case of major players, the Judge will need to clarify for the jury what part that player played actually.  The jury will need to know that to find that player guilty of aggravated robbery they must be satisfied beyond reasonable doubt that he or she:

(a)Intended to rob – to steal by violence or threats of violence - knowing that intent to be shared by at least one other person immediately present.

(b)Assaulted or threatened assault, or was immediately present and at least actively encouraged it.

(c)Stole from the person assaulted or threatened, or was immediately present and at least actively encouraged it. 

Relative culpability and parity

[38]     We have not on this appeal been confronted with the argument that because Mr Hunt’s conviction has been quashed there ceased to be an aggravated robbery.

[39]     One reason may be that in quashing Mr Hunt’s conviction this Court was far from saying that he was an innocent bystander.  His conviction was quashed because the jury had not been directed to consider what he knew or intended.  Whether or not Mr Hunt remains in the equation, however, does not matter.  As this Court said in Hunt, on the evidence the third boy, like Mr Feterika, was also a principal.  The witness saw him in the melee and BJT said that it was this boy who took his shoes.  The offence still stands complete.

[40]     The question remains whether Mr Feterika’s conviction should be set aside, as was that of Mr Hunt, because the Judge’s direction in his case too was deficient.  The jury was not directed to consider whether they could be satisfied beyond reasonable doubt that he was active in the common design, knowing what it was and sharing it.  We do not think that he should be discharged on that account.  In contrast to Mr Hunt, as this Court said on that appeal, Mr Feterika’s part in this offending was plain.  No more detailed direction was necessary.

[41]     Mr Feterika justified the assault by telling the woman who challenged him that he was intent on BJT’s jacket.  That had to be evidence of his intent to rob.  The jury could also have inferred that Mr Feterika assumed, and with reason, that Mr Hunt shared his intent.  When Mr Feterika spoke to the witness Mr Hunt was as engaged in the assault as he was and, after Mr Hunt spoke with the witness, continued just as he did.  Or, if that inference is inconsistent with the decision in Hunt, the jury could still have concluded that Mr Feterika and the third boy were actively engaged in the offence.  That the jacket was discovered in the station wagon two days later confirms Mr Feterika’s part at least. 

[42]     The question is rather this.  Given, as the Judge held on sentence, the parts Mr Feterika and Mr Hunt played could be seen to have been virtually indistinguishable, does parity require that Mr Feterika’s conviction and sentence also be set aside? Again we do not think so.  The question has finally to be whether Mr Feterika’s conviction and sentence fairly reflects his culpability.  We consider that they do.  His offence was plain.  He was a principal player in a serious street assault, in which the third boy certainly and Mr Hunt arguably played a part, in which he was intent on robbery and in which robbery was accomplished.  His conviction and sentence should, we consider, stand.

[43]     In that conclusion we do not ignore that Mr Feterika has three other grounds of appeal, two of which derive from Hunt.  Not one, we think, assists him.

Other grounds unavailing

[44]     In Hunt this Court found the Judge’s direction as to inferences unhelpful, because it depended on an example unrelated to the case.  The Court also found that the prosecutor breached s 336 of the Crimes Act by commenting on Mr Feterika’s and Mr Hunt’s decisions not to give evidence.  Neither, this Court then held, was an independent reason to grant Mr Hunt’s appeal.  Mr Feterika is no better placed.

[45]     Mr Feterika also complains that his defence was compromised by Mr Hunt’s counsel.  It had been agreed before trial that Mr Hunt’s counsel would call the third boy as a defence witness for Mr Feterika as well as Mr Hunt.  Inexplicably, Mr Hunt’s counsel failed to do so.  Mr Feterika was left exposed.  As to that, all we need say is this.  To assist Mr Hunt or Mr Feterika the third boy would have had to run the risk of incriminating himself.  The trial Judge would have had to identify that risk for him and advise him of his privilege against answering any such question.  Almost inevitably the third boy would have invoked his privilege.

Result

[46]     Mr Feterika will be granted leave to appeal out of time.  His appeal against his conviction is, however, dismissed.  He does not appeal against his sentence, which is largely served.

Solicitors:

Sapolu Law, Manurewa, Auckland
Crown Law Office, Wellington