R v Mohetuki

[2008] NZCA 494

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA538/2008
[2008] NZCA 494

THE QUEEN

v

MELANIE MOHETUKI

Hearing:12 November 2008

Court:William Young  P, Ronald Young and Fogarty JJ

Counsel:P T R Heaslip for Appellant

M E Ball for Crown

Judgment:25 November 2008 at 12 noon

JUDGMENT OF THE COURT

AWe extend the time for appealing.

BThe appeal is allowed.

CWe quash the appellant’s conviction and order a new trial.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       The appellant, Melanie Mohetuki, and her co-defendant, Tia Hemopo, were tried before Judge Epati and a jury on a charge of injuring with intent to injure.  At the end of the trial the jury returned with what the Judge regarded as verdicts of guilty against both women on the injuring charge.  On a further charge of threatening to kill, Ms Hemopo was also found guilty.  The appellant was later sentenced to 12 months’ home detention.

[2]       She now appeals (slightly out of time) against conviction (arguing that the verdict was ambiguous) and sentence.  For reasons which we will explain, we are satisfied that the appeal against conviction must be allowed.  The merits of the sentence appeal will therefore not be addressed.

[3]       We allow the appeal with some reluctance.  As will become apparent, we do not see the appellant’s position as particularly meritorious.  We are also particularly concerned about the position of the complainant.  As a result of the attack, she suffered concussion, a broken nose, bruising to her face and, perhaps as seriously, long term consequences in terms of where she lives, the inconvenience for her of the criminal process and the stress and strain of giving evidence.  That there may have to be a retrial (depending on the view the Crown takes), with additional inconvenience and stress and strain for the complainant, emphasises the need for the utmost care in the conduct of the criminal jury trial process.

Background

[4]       The Crown case was that the appellant and Ms Hemopo held a grudge against the complainant because she had previously had them arrested and trespassed from her mother’s house.  They used the telephone of a friend of the complainant to text her and in this way arranged a meeting.  In the early hours of 10 November 2006, the complainant arrived at the place specified, thinking she was meeting her friend.  The appellant and Ms Hemopo emerged from hiding places and attacked the complainant.  They punched her in the face, knocking her to the ground, and continued punching and kicking her to the upper body and head.  In the course of this incident, Ms Hemopo threatened to kill the complainant. 

[5]       The indictment on which the appellant and Ms Hemopo were tried was in these terms:

1THE CROWN SOLICITOR AT AUCKLAND charges that TIA MARIA HEMOPO AND MELANIE MOHETUKI, on or about the 10^th day of November 2006, at Auckland, with intent to injure [the complainant] injured her.

2THE said Crown Solicitor further charges that TIA MARIA HEMOPO, on or about the 10^th day of November 2006, at Auckland, threatened to kill [the complainant].

[6]       At trial Ms Hemopo gave evidence and denied having any part in the attack on the complainant.  She was, however, faced with a particular problem: around the time at which she gave a statement to the police, she sent a text message to a friend in which she said, “Should I confess or just do what Mel’s doing and deny it”. 

[7]       No evidence was called by the appellant.  But her defence was essentially the same as Ms Hemopo’s as both defendants shared the same alibi.  Ms Hemopo claimed to have been at home on the night of 9 November.  In the early hours of the 10^th, she drove north with her children to attend a 21^st birthday party and, on her way, picked up the appellant.

[8]       In his summing up, the Judge told the jury that it had to address the cases of the two defendants, albeit that he did not do so with great clarity:

[11]     I now come to consider the indictment. … You will note up the front above the band, the middle band, it says injuring with intent, one charge, threat to kill, one charge. … Considering count one… I would like you to underline Tia Maria Hemopo and the name Melanie Mohetuki.  The reason why I want you to underline that is I want you to understand that is a charge against both of them and you must not forget that and I will talk to you through how that gets to be done…

[12]     Now in considering that charge, the Crown must prove beyond reasonable doubt that:

a)Both accused injured the complainant …

b)The second thing that the Crown must prove is that the accused, both of them, did so with intent to injure the complainant. ...

…

[13]     In terms, therefore, of both charges I put it another way.  You can only find the accused Hemopo and Mohetuki guilty if you are satisfied beyond reasonable doubt that the Crown has proved to you that both accused injured the complainant,… and secondly, that did both accused intended to injure her in that way.

…

[15]     Well you now have heard both counsel for defence and the Crown, but I must do is to explain to you first of all that one charge as I have said clearly is against both and the other charge is separate.  But I also tell you that each charge are separate.  You must determine each count on the basis of the evidence that relates to that count, although you may arrive at a conclusion that everything happened within a short period of time so that, therefore, it is related in that way, but you must also most especially consider the accused as separate accused.  You see, the two charges are tried in this one trial, but they are really separate trials found in one and the reason why it is found in this one trial is because of convenience and cost.  ...  You must consider each charge separately and additionally, you must consider each accused separately and in this trial, particularly, counsel have indicated to you there are different evidence that applies to one accused that will not apply to the other.  That is really the crunch of what [counsel for the appellant] indicated to you and she had asked you as is of her right and the constitutional right of her client, the accused that she represents that you separate the evidence and in going through the evidence as I shall now do with regard to each case, I will try to indicate to you where you may have to be cautious in terms of what to apply to the other.

…

[22]     The defence case is to be separate and in this case, I must direct you separately.  … [The Judge summarised the closing address of counsel for Miss Hemopo]

…

[28]     [Counsel for the appellant] raised a lot of matters.  Again she said well, the same thing, who done it.  Remember there is only one charge to Ms Mohetuki and that is the assault, not the last charge.  So you consider her case separately as well, although by and by, again it is the same matters that were raised that she is not the author of the text that the Crown relies on so much with regard to, so that, therefore, this is very important. … The only direction I give you is you must be careful about applying the evidence which applies to one to the other as well.  You must separate that which applies to one and not to the other.  … All in all and in totality, she said you must have a reasonable doubt as to if whether even Mohetuki was there at all, but consider that there is less evidence against her, she said, than there is against the other accused.  She reminds you finally that these are separate cases, although held together and that all in all, she invites you to return a not guilty verdict on the lack of evidence or at the very best that there is a reasonable doubt.

Towards the end of the summing up, the Judge said:

[29]     … Remember, when you have reached your verdict and returned to the Court, Madam Foreperson will be asked to stand and the Registrar will first ask whether the Jury, are you unanimously agreed upon your verdict on your indicating that you are.  Then Madam Foreperson will then be asked in relation to each count whether you find the accused guilty or not guilty.  …

[9]       We draw particular attention to the following aspects of the summing up:

(a)The Judge presented count one as a single charge against both women and later emphasised the need for the Crown to prove that they were both guilty.  We do not know why he did so.  In the context of a joint charge this approach was confusing and detracted from what he said as to the need to consider the cases of the two defendants separately. 

(b)His only reference to the unfortunate text message being evidence against Ms Hemopo and not the appellant was when he was summarising the address of the appellant’s counsel. 

(c)The Judge did not make it clear to the jury that the foreperson would be required to give separate verdicts in relation to each of the defendants in relation to count one.

[10]     When the jury returned with verdicts, the interchange which occurred in relation to count 1 was in these terms:

[2]       COURT REGISTRAR:  Please bring into Court Tia Maria Hemopo and Melanie Mohetuki.  Would Madam Foreman please stand.  Members of the jury, have you unanimously agreed upon your verdict?

[3]       MADAM FOREPERSON:  Yes.

[4]       On count one, do you find the accused, Tia Maria Hemopo together with Melanie Mohetuki guilty or not guilty?

[5]       MADAM FOREPERSON:  Guilty.

The jury went on to return a verdict of guilty in relation to count two against Ms Hemopo.  The jury confirmed that the verdicts were unanimous.  At this point, and apparently before remanding the defendants for sentence, the Judge thanked the jury and discharged them.  The transcript records only the prosecutor and the appellant’s counsel as being present for the verdict but we were told that Ms Hemopo’s counsel was there too.  We were told from the bar that Ms Sapolu, who appeared for the appellant at trial, then voiced some concerns about the way in which the verdicts had been taken but by the time she did so (or at least by the time these concerns came to the attention of the Judge), the jurors had dispersed.

Was there a verdict of guilty against the appellant?

[11]     In taking the verdicts on count one, the Registrar should have enquired first whether the jury found Tia Maria Hemopo guilty or not guilty.  The Registrar should then have made the same enquiry in relation to the appellant.  When the Registrar departed from appropriate practice, the Judge should have intervened to take separate verdicts in relation to each of the defendants.  The real issue on the conviction appeal is the materiality of the undoubted irregularity.

[12]     It is clear that the jury intended to and did return verdicts of guilty on both counts against Ms Hemopo.  The real question is whether the jury also returned a verdict of guilty on count one against the appellant.

[13]     Some context is important:

(a)Although the Judge’s summing up addressed the need for separate consideration of cases of the two defendants, he did not do so with great precision.  Nor was he particularly precise on the identification of which evidence was applicable to which defendant, a matter of considerable importance given the significance of the text message.  The Judge also did not make it clear to the jury that they would be required to give separate verdicts in relation to each defendant on count one.

(b)There was nothing particularly surprising about both defendants being found guilty on count one.  On the other hand, however, there was telling evidence in the form of the text message, which was admissible against Ms Hemopo but not against the appellant.  This text might be thought to have been tantamount to a confession by Ms Hemopo that she and the appellant had attacked the complainant.  So it was at least theoretically possible that the jury might have been satisfied beyond reasonable doubt on the evidence admissible against Ms Hemopo that she and the appellant attacked the complainant, but left in doubt on the same question on the evidence admissible against the appellant.

(c)Although, as we have noted, the transcript of what happened after the verdicts were taken suggests that the Judge discharged the jury before dealing with the appellant and Ms Hemopo, it could hardly have escaped the attention of jurors that both defendants were being treated as having been found guilty – something that produced no complaint or expression of concern from any of the jurors concerned.

[14]     All in all, we think it clear that the jury had concluded that the appellant was guilty on count one.  That, after all, is the most plausible interpretation of the answer given to the question posed by the Registrar.  It is also consistent with the absence of any later protest or expression of concern on the part of jurors about what happened subsequently.  If the jury had intended to acquit the appellant, its members would have protested when that verdict was not taken and the appellant was treated as having been found guilty.  (We add for the sake of completeness that there is no indication that the jury were dead-locked as to the appellant’s guilt.)

[15]     This, however, is not conclusive at to whether the jury can be taken to have returned a verdict of guilty against the appellant on count one.  The phrase “together with” in the question put by the Registrar puzzles and troubles us.  It is not taken from the indictment.  If the Registrar had simply said “and”, the answer of the foreperson could more easily be taken to have applied unequivocally to both defendants.  Even with the phrase “together with” in the question, that remains the most likely interpretation of what was said.  But there is an alternative and not completely implausible interpretation that the foreperson of the jury was expecting a further question in relation to count one, namely whether the jury found the appellant guilty on that count.  If this is the correct interpretation of the question and answer, the foreperson’s answer of “guilty” in relation to count one was a verdict against Ms Hemopo only and it follows that no verdict was taken in relation to the appellant on count one. 

[16]     It sometimes happens that a Judge by mistake discharges a jury before it has given a verdict upon which it has decided.  This occurs most commonly where the Judge has overlooked the possibility of a verdict on an included charge.  Such an event can be expected to evoke complaints from jurors.  In this case, the absence of any complaint from the jury that the foreperson had not been given an opportunity to return a verdict on count one in relation to the appellant is thus a pointer against the alternative interpretation.  But, although this is a relevant consideration, we do not see it as decisive, as the jurors presumably saw the Judge treating the appellant as having been found guilty and thus may have thought that there was no need to complain.  The situation we are postulating here is, of course, not exactly the same as the one under consideration in [13] above.

[17]     The majority decision of the Privy Council in Ramstead v R [1999] 1 NZLR 513 suggests that in respect of the taking of verdicts, all reasonable intendments are made in favour of a defendant. The judgment also underscores, at 517, the paramount importance of following standard procedures in taking jury verdicts:

Subject to the narrowest exceptions a jury verdict is final. That attribute of a jury verdict is a matter of paramount importance: upon it hinges the effectiveness of the system of trial by jury. For that reason the procedures regarding the taking of jury verdicts are necessarily formal acts which must be complied with in order to ensure the integrity of the system. These procedures form part of the body of procedural rules which are designed to ensure that a defendant receives a fair trial. A substantial failure to comply with these rules may lead to the quashing of an otherwise true verdict. Fortunately, the applicable rules are simple and ought to cause no difficulties in practice.

On this basis, we are left with the view that the exchange between the Registrar and the foreperson was insufficiently clear to be properly treated as a verdict of guilty against the appellant.

[18]     The appellant’s position is not very meritorious.  We are satisfied that the jury did not intend to acquit her.  If clarification had been sought at the time, we are practically certain that the jury would have returned a verdict of guilty against her.  But on a matter which is as fundamental as the delivery of a verdict, we do not think that we are entitled to resort to the proviso.

[19]     The corollary of all of this is that the appellant was not found guilty of injuring with intent to injure.  We think it right, however, to recognise that she has nonetheless been sufficiently convicted to invoke our jurisdiction under s 385 of the Crimes Act 1961.

Disposition

[20]     We extend time for appealing.  With some reluctance we conclude that the appeal must be allowed.  The appellant’s conviction is quashed and we direct that there be a retrial.

Solicitors:
Crown Law Office, Wellington