R v Hunt

[2007] NZCA 179

IN THE COURT OF APPEAL OF NEW ZEALAND

CA402/06

CA487/06 [2007] NZCA 179

THE QUEEN

v

PETER HARRY JOSEPH HUNT

Hearing:  19 April 2007

Court:  Glazebrook, Randerson and Ronald Young JJ Counsel:    M A Edgar for Appellant

M D Downs for Crown

Judgment:  27 April 2007

Reasons for Judgment:     7 May 2007 at 4pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The conviction is set aside. C No retrial is ordered.

REASONS OF THE COURT

(Given by Ronald Young J)

R V HUNT CA CA402/06  27 April 2007

[1]      On Friday 27 April 2007 we allowed this appeal, set aside the appellant’s conviction, made an order that no retrial follow and advised reasons for these decisions would follow.  We now give our reasons.

[2]      On 4 July 2006 the appellant together with a co-accused Mr Vai Feterika was found guilty by a jury on one count of aggravated robbery.  Judge Blackie, the trial Judge, subsequently sentenced the appellant and Mr Feterika to two years and three months imprisonment.   The appeal against conviction was originally based on an allegation of a miscarriage of justice said to have arisen from the conduct of his counsel at trial.  During the hearing of this appeal further grounds of appeal came to light relating to the Judge’s summing up as it related to parties and a breach of s 366 of the Crimes Act by Crown (trial) counsel.   The appellant also appealed against sentence.

Background

[3]      The Crown alleged that the appellant, Mr Feterika and others were in a car in Otahuhu when they saw the victim whom they vaguely knew.  They stopped the car and Mr Feterika approached the victim and punched him to the ground.  Two others from the car joined the attack on the victim one of whom was the appellant.  The victim was punched and kicked a number of times.  One of the offenders, the victim said a man in a blue cap, then took a jacket and shoes from the victim.

[4]      Ms Carol Hutson was a witness to some of the incident.  She pulled up in her car at her home as the assault was occurring.  At trial she identified Mr Feterika and the appellant as the assailants.  She identified a third man who wore a cap as also present.  Ms Hutson said it was probably Mr Feterika who took the jacket and shoes. She said when she tried to stop the assault Mr Feterika claimed the jacket was his.

[5]      The appellant made a statement to the police.  He admitted he had been at the scene of the assault on the victim and had been right next to those involved.  The appellant denied he had assaulted the victim but said he had held the victim.   He agreed the victim’s jacket had been taken.  He said a boy from the car called Jack,

who it was agreed was the man in the cap, had assaulted the victim and taken his jacket and shoes.

[6]      Neither the appellant nor Mr Feterika were called to give evidence at trial.

[7]      The  Judge  in  his  summing  up  identified  the  case  for  the  appellant  as accepting that he may have been involved in some of the fighting with the victim but that it had never been his intention to rob the victim.

[8]      During counsel’s submissions to us we expressed concern about the Judge’s summing up as it dealt with the question of parties.  At that time we did not have counsel’s final addresses to the jury.  We therefore adjourned this appeal to allow copies of the addresses to be obtained and for counsel to file written submissions regarding the way in which the Judge summed up on this topic.  We have obtained a copy of these addresses and counsel have filed further submissions.  Counsel for the Crown’s submissions relating to the “parties” issue also raised a question of a breach of s 366 Crimes Act.  We consider that issue in this judgment.  We turn, firstly, to the issue of parties.

Parties

[9]      The Crown in its final address to the jury made it clear that its case against Mr Hunt was based on the proposition that Mr Hunt was a party to the robbery by either punching and kicking or holding the victim so that his jacket and shoes could be taken.   This was clearly a reference to s 66(1) of the Crimes Act alleging the appellant had aided and abetted the principal offender(s) ((1)(b)(c)).  The appellant’s defence  was  that  he  did  not  take  the  jacket  or  shoes  (and  therefore  was  not  a principal) and that he knew nothing about the robbery (and therefore not a party).

[10]     Given the evidence called at trial, an allegation that the appellant was a party pursuant to s 66(1) was the only way in which the Crown could have presented their case.  The Crown evidence against Mr Hunt was that he was present at the scene and that he assaulted the victim either by punching and kicking him or holding him.  The Crown invited the jury to infer that the appellant must have known that the victim’s

clothes were to be taken and that he assaulted the victim to try and facilitate this robbery.

[11]     In his summing up the Judge explained the legal ingredients of aggravated robbery to the jury in this way:

[24]      So there you are, it has got three legs.  The first leg the parties or the accused must act together.  The second leg is that there must be an assault, the use of violence, and the third leg is that the use of that violence was to rob or take the possessions off the victim, the complainant Mr Taku.  Theft, just a simple taking becomes robbery when you use violence, it becomes aggravated robbery when two or more people are using the violence, in this case against one.

[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.  We can only deal with the two persons that are before the Court.

[26]Think of it as a three legged stool.  Have the Crown proved, that is what they have to do, each of those legs, acting together for a joint purpose with the intention of robbing, that is taking off the personal items from the complainant, in this case shoes and the jacket.   So that is the count, only one, comparatively straight forward really when you boil it down.

[12]     After some evidential directions the Judge turned to the facts of this case.  He summarised  the victim’s  evidence  and  Ms  Hutson’s  evidence.    He  detailed  the relevant sections from the statements of the two accused.  He then summarised the case for the Crown and the two accused.  When summarising the case for the Crown he said:

[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 the shoes, there is no evidence of who actually did that other than what [the victim] 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 [the victim] 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 his 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 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 Mrs Hutson said when she asked them to stop and what Feterika said about his cousin’s jacket.

[13]     And his summary of the defence case was:

[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 this  statement  did  not  say  he  would  give  it  back,  but  was  not involved in the actual taking.

[14]     The Crown acknowledged the Judge had not dealt explicitly with s 66(1) but submitted there was no miscarriage of justice because the Crown and counsel for both Mr Feterika and the appellant focused their closing address to the jury on the need for the Crown to prove the appellant was acting with an intention to rob.  The Crown says the Judge directed the jury that they needed to be satisfied that the accused assaulted the victim or assisted in doing so with the appropriate intention and this was adequate in the circumstances.

[15]     We consider that the summing up did not adequately deal with the law as to parties as it affected Mr Hunt.  The Judge should have distinguished for the jury the difference  between  a  principal  and  a  party.    On  the  evidence  of  Ms  Hutson, Mr Feterika could have been a principal.   On the evidence of the victim the third man, Jack, could have been a principal.  There was no evidence that the appellant was a principal.  He could only be guilty as a party.

[16]     The  Judge  should  have  told  the  jury  the  Crown  had  to  prove  beyond reasonable doubt:

(a)That Mr Hunt knew that Mr Feterika or Jack (depending upon 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

(see R v Fa’apusa CA300/06, 13 December 2006).  The Judge should have told the jury that if the Crown failed to prove any one of those three propositions beyond reasonable doubt then Mr Hunt would be not guilty.   We are concerned that this message was obscured in the directions because the Judge did not explicitly make it clear to the jury.

[17]     The  Judge’s  summary  of  the  defence  case  at  [42]  failed  to  distinguish between the quite different cases against Mr Feterika and the appellant.  The Judge should have made it clear to the jury that the fact the appellant assaulted the victim some time during the melee when the victim was robbed, was not by itself sufficient to make Mr Hunt a party to the robbery.

[18]     The direction by the Judge to the jury covering both knowledge and intention was vital to the jury’s understanding of what the Crown had to prove.   It was not sufficient for the jury that the Crown and appellant’s counsel focused their addresses on an intention to rob.  The jury were not told, as they should have been, that the Crown had to prove both knowledge and intention on Mr Hunt’s behalf before the jury could convict Mr Hunt.  We consider this was a serious error by the Judge and meant that the jury could not  properly perform  its  function  because it  was  not properly focused on the legal elements necessary to establish guilt as a party under s 66(1).  We are satisfied that a miscarriage of justice has occurred.

Inferences

[19]     We are also concerned about the summing up as it related to inferences.  The

Crown invited the jury to infer that the appellant committed the assault intending to

assist in the robbery.   The Judge dealt with inferences in a general way at the beginning of his summing up when he said:

[10]If you find that fact proved, and that fact proved, from those two facts you can come to a conclusion, and you do this all the time in everyday life, and I am going to give you a very silly example of it, but nevertheless it makes the point.  You just pretend that you have a six year old at home, a boy or a girl, it doesn’t really matter.  You have instructions at your place that the biscuit tin in the cupboard is out of bounds unless you are there to give the biscuits.  When you come home one day, probably after school or something, you find your biscuit tin out on the kitchen bench, it is open and some of the biscuits are missing.  That is a fact, you see, because you see it with your own eyes.  You go through into the lounge and there is your six year  old  with chocolate around  the  mouth  and chocolate  on  the fingers.  That is a fact because you see it with your own eyes, and despite the six year old saying “Oh it wasn’t me mummy”, “It wasn’t me daddy”, what conclusion do you reach from the facts?   The biscuit tin with some of them missing, the chocolate on the fingers of the child?

[20]     The Judge did not relate those general observations on inferences to the facts of this case.   The example given relating to the chocolate biscuits concerned an inference of a fact, the taking of the biscuits.   Here, the issue was whether an inference of an intention and of knowledge of a state of affairs had been proven.  The example was unnecessarily complicated by the addition of the denial by the child of taking the biscuits.  We do not consider an example not related to the facts of this case would have been helpful to the jury.  It would have been of more assistance to the jury if the Judge had followed general comments about inferences by specifically identifying what inferences the Crown and defence said were available from the evidence in this case and focusing the jury on what they had to decide was proven. By itself this may not have caused a miscarriage of justice however it adds to our concern about the verdict.

Section 366 Crimes Act

[21]     Counsel for the Crown in their submissions drew to the Court’s attention what they accepted was a breach of s 366 of the Crimes Act by Crown trial counsel (commenting on the appellant’s failure to give evidence).  In his closing address to the jury Crown counsel said:

First of all, onus and standard of proof.  Onus, it’s my Office that needs to prove the charges against the two accused.  It is not for them to ever prove that they’re innocent.  The Crown accepts that.  The fact that they did not give evidence doesn’t matter, that is their right, they don’t need to.   It is because it is from my Office to always prove the charges against them and to what standard.  You need to be sure, that is, that once you’ve looked at the evidence, and I ask you to look at it carefully, you need to be sure that these two men were involved in the robbery of Mr Taku.

Crown counsel went on to describe the elements of the charge of aggravated robbery and then how the Crown said the jury should view the facts.

[22]     This comment was a breach of s 366 of the Crimes Act which prohibits anyone other than the Judge and the accused (or his counsel) from commenting on the fact that an accused refrained from giving evidence.  This Court has previously observed that s 366 is equally designed to prohibit remarks not intended “to be adverse to the defendant” (see R v Ngatai [1999] 1 NZLR 446).

[23]     As to this topic the Judge in his summing up said:

[15]I must also remind you, and perhaps this is the most important issue of all when it comes to our Justice system, of what I said yesterday about  this  being  a  criminal  trial  and  the  burden  of  proving  the charge, which you have got to consider rests on the Crown.  It rests on the Crown as we have said from the beginning of the trial to the end.  There is no responsibility on an accused person to prove their innocence, they are entitled to sit at the back of the Court and say nothing.  The responsibility is on the Crown to prove guilt and that responsibility never shifts.

[24]     In this case the prosecutor’s remark was clearly not intended to be adverse to the  appellant.    It  was  neutral.    It  reflected  what  Judges  typically  tell  jurors  in summing up.  It said that the appellant did not need to give evidence, that not giving evidence was the appellant’s right and that it was always the Crown who had to prove the case.

[25]     While this was a breach of s 366 we do not consider the prosecutor’s remarks gave rise to a miscarriage of justice.  His remarks, as we have said, were neutral and did no more than reflect what Judges typically tell jurors.   These remarks alone would  not  have  been  sufficient  to  allow  the  appeal  (see  R  v  Smiler  CA2/05

14 June 2005).

Allegations of counsel error

[26]     The  appellant’s  appeal  as  filed  alleged  a  miscarriage  of  justice  occurred because:

(i)relevant  witnesses  were  neither  interviewed  nor  called  to  give evidence at trial on the appellant’s behalf;

(ii)       the appellant’s defence was not adequately put at trial; and

(iii)      the appellant was not allowed to give evidence at trial.

[27]     In the circumstances, we do not need to deal with these allegations.  We have already concluded that a miscarriage of justice occurred in this case.

Result

[28]     It is not necessary for us to consider the appeal against sentence given our conclusion on the appeal against conviction.

[29]     Counsel for the Crown accepted, given the appellant is almost immediately eligible for parole, that if we allowed the appeal, no retrial should be ordered.  In the circumstances we agree.   The appeal is allowed, the conviction quashed and no retrial is ordered.

Solicitors:

Crown Law Office, Wellington