Rakena v The Queen - [2016] NZCA 357

IN THE COURT OF APPEAL OF NEW ZEALAND

CA747/2015
[2016] NZCA 357

BETWEEN	ZACHRIUS RAKENA Appellant
AND	THE QUEEN Respondent

Hearing:	19 July 2016
Court:	Randerson, Fogarty and Collins JJ
Counsel:	I M Brookie and C G Farquhar for Appellant B D Tantrum and S R Jacobs for Respondent
Judgment:	27 July 2016 at 11:30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 11 June 2015, Mr Rakena was convicted of one charge of aggravated robbery following a trial by jury.[1] Judge Paul sentenced Mr Rakena to four years imprisonment.[2]
[1]Crimes Act 1961, s 235(c). Maximum sentence is 14 years imprisonment.
[2]R v Rakena [2015] NZDC 16601.
Mr Rakena appeals his conviction on two grounds:
(a)The jury verdict was unreasonable having regard to the evidence.[3]
(b)A miscarriage of justice occurred through the Judge deciding not to poll the jury after delivering its verdict on 11 June 2015.[4]
[3]Criminal Procedure Act 2011, s 232(2)(a).
[4]Section 232(2)(c).
In the hearing before us, Mr Brookie, counsel for Mr Rakena, advised he did not wish to pursue a third point set out in his submissions, namely that Judge Paul should have discharged the jury on 10 June 2015. We explain this aspect of the case when considering the second ground of appeal.

Background

On 26 February 2014, Mr Ameer and Mr Sahar were working at Bamian Auto Parts, an automobile parts and scrap metal business in Onehunga. At approximately 5.20 pm a man entered the premises carrying a handgun. The offender was described as being a male aged between 19 to 24 years old, about 180 to 185 centimetres tall, of medium build and weighing 75 to 80 kilograms. He was described as having brown skin and spoke with a “Māori accent”. Counsel accepted that in general terms Mr Rakena’s physical characteristics are similar to those of the description provided by Mr Ameer and Mr Sahar.
Security camera footage from the scene showed the offender was wearing a cap, a bandana over his face, a fluorescent yellow-sleeved top under an orange fluorescent vest, and black track pants. The black track pants had two stripes down the side and a white logo on the upper left side adjacent to the offender’s left thigh.
The offender pointed his gun at the victims and demanded money. After taking approximately $300 cash and two cellphones the offender ran from the office and was pursued by Mr Sahar. The offender got into a silver Toyota Altezza. Mr Sahar recorded the number plate of the getaway car as FNC709.
The police were called. They identified on CCTV footage a vehicle similar to the getaway car heading from the scene of the robbery in the direction of a motorway ramp, which led towards Mangere.
Police then checked the details of the registration number recorded by Mr Sahar. The computer search revealed no vehicle had the registration number FNC709. The police then started to check other combinations…

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 Rakena v The Queen

Details

AGLC: Rakena v The Queen [2016] NZCA 357
Case: [2016] NZCA 357
Decision Date: 27 July 2016 at 11:30 am

CaseChat Overview and Summary

Zachrius Rakena was convicted of one charge of aggravated robbery following a jury trial. Rakena appealed the conviction on two grounds: first, that the jury verdict was unreasonable having regard to the evidence; and second, that a miscarriage of justice occurred through the Judge deciding not to poll the jury after delivering its verdict on 11 June 2015. The court was satisfied there was sufficient evidence for the jury to have been satisfied beyond reasonable doubt that Rakena was the offender. The court also concluded that no miscarriage of justice occurred by reason of the Judge's failure to poll the jury. The appeal against conviction was dismissed.

The facts of the case were that on 26 February 2014, Mr Ameer and Mr Sahar were working at Bamian Auto Parts, an automobile parts and scrap metal business in Onehunga. At approximately 5.20 pm a man entered the premises carrying a handgun and demanded money. After taking approximately $300 cash and two cellphones the offender ran from the office and was pursued by Mr Sahar. The offender got into a silver Toyota Altezza. Mr Sahar recorded the number plate of the getaway car as FNC709. The police were called. They identified on CCTV footage a vehicle similar to the getaway car heading from the scene of the robbery in the direction of a motorway ramp, which led towards Mangere. Police then checked the details of the registration number recorded by Mr Sahar. The computer search revealed no vehicle had the registration number FNC709. The police then started to check other combinations by replacing the “F” with the letters A to I. Those checks found that two cars with the registration numbers ENC709 and DNC709 were both silver Toyota Altezzas. The second of those vehicles was registered to a person in Southland. The silver Toyota Altezza, registration number ENC709, was registered in the name of the mother of Rakena’s girlfriend. There is no dispute that the vehicle in question was usually in the possession of Rakena’s girlfriend. It was an agreed fact that Rakena had been seen driving that vehicle in Onehunga earlier on the day of the robbery. The police located the vehicle at Rakena’s address in Mangere on 28 February 2014. The police also found at Rakena’s address a pair of black track pants with two white stripes down the side and a white logo on the left thigh. The pants were found in a recycling bin at the rear of Rakena’s address. The pants contained DNA from Rakena and at least two other people. Rakena was interviewed by the police. He explained that on the morning of 26 February 2014 he had taken his girlfriend to a job interview, returned home in her car and then worked for his father pouring concrete in New Lynn in the afternoon. He said he returned home with his father. Ms South, Rakena’s girlfriend, confirmed Rakena had driven her in the Toyota Altezza to a job interview and that in the afternoon they had returned home and gone to sleep. At one point Ms South woke and realised Rakena was not there and had taken the car. According to Ms South Rakena returned home with the car when “it had just started to get dark”. Rakena’s father gave evidence and said Rakena worked with him from 1.30 pm to just after 6.00 pm pouring concrete in New Lynn on 26 February 2014.

The court found that the evidence relating to the registration number of the getaway car, the location of the pair of track pants at Rakena’s home that corresponded with the track pants worn by the offender and the evidence that Rakena was driving a car that matched the getaway vehicle in the vicinity of the robbery were all powerful pieces of circumstantial evidence that properly convinced the jury of Rakena’s guilt. The court also found that no miscarriage of justice occurred by reason of the Judge's failure to poll the jury. The appeal against conviction was dismissed.

Orders