Reddy v R
[2011] NZCA 184
•13 May 2011
| For a Court ready (fee required) version please follow this link |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA75/2011 [2011] NZCA 184 |
| BETWEEN KUNAL NAND REDDY |
| AND THE QUEEN |
| CA114/2011 |
| AND BETWEEN AUGUSTUS AH-CHONG |
| AND THE QUEEN |
| Hearing: 28 March 2011 |
| Court: Glazebrook, Simon France and Lang JJ |
| Counsel: A Shaw and F Geiringer for Appellant Reddy |
| Judgment: 13 May 2011 at 11.30 am |
JUDGMENT OF THE COURT
AMr Ah-Chong’s appeal against conviction for intentionally causing grievous bodily harm is dismissed. His appeal against conviction for aggravated robbery is allowed, and the conviction is quashed. No retrial is ordered.
B Mr Ah-Chong’s appeal against sentence is dismissed.
CMr Reddy’s appeal against conviction is dismissed. His appeal against sentence is allowed. The sentence of eight months’ imprisonment is quashed. In its place there will be a sentence of two months’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Table of Contents
Para No
Introduction [1]
Facts [6]
Mr Ah-Chong’s appeal [15]
Further facts [15]
First appeal ground – a second aggravated robbery charge should
not have been added [19]
Second appeal ground – the verdicts on count two and count three
are inconsistent [31]
Third appeal ground – directions on party liability for count one [43]
Fourth appeal ground – the taking of the verdicts[51]
Mr Reddy’s appeal[72]
Sentence appeals[101]
Mr Ah-Chong [101]
Mr Reddy [108]
Introduction
In August 2008, a shopkeeper was savagely beaten as he went to close his premises for the night. The attack was organised by a disgruntled employee, Ms Tanya Aziz. Ms Aziz had paid an associate, Mr Vaiula Luatua, to carry out the assault. He in turn co‑opted two others to help. They were the appellant, Mr Augustus Ah-Chong and a prosecution witness, Mr Vincent Suifua.
The Crown case was that Mr Ah-Chong and Mr Suifua were responsible for the initial attack. The idea was to render the victim unconscious so that Mr Luatua could then participate without being recognised by the victim who knew him. Ms Aziz’s instructions to Mr Luatua were to beat the victim so as to hospitalise him, and he successfully did this, using an iron bar he took with him.
Mr Aziz, Mr Luatua and Mr Suifua all pleaded guilty to their involvement. Mr Ah‑Chong went to trial where he faced charges of causing grievous bodily harm, and aggravated robbery of some items taken after the attack. The stolen items were money taken from the till and from the victim’s back pocket, and a satchel belonging to the victim. The idea behind the thefts was that they would make it look like a robbery and thereby hide the real purpose of the beating.
Mr Ah-Chong was convicted of causing grievous bodily harm. He was acquitted of the aggravated robbery. However, during the trial the Crown had added a second aggravated robbery charge in relation to a computer hard drive that was also taken. Mr Ah-Chong was convicted of this offence. He appeals both convictions on a variety of grounds, and also appeals sentence.
Mr Ah-Chong was joined at trial by two others. Mr Kain Shaw, who is not an appellant, was convicted of being a party to the assault. He acted as a lookout. Mr Kunal Reddy, the other appellant, was convicted of being an accessory after the fact. It was said that he destroyed CCTV footage of an area near the shop in order to hinder the arrest of the perpetrators. Mr Reddy appeals both conviction and sentence.
Facts
The victim, Mr Bryan Johnson,[1] owned a kebab shop in a North Shore mall. He bought the store two years before this incident, and kept two employees then working there. One of them was the offender, Ms Tanya Aziz.
[1] Also known as Ghulum‑Reza Kajaeveshekan.
Ms Aziz seemingly developed the idea that if Mr Johnson were absent for a while, she could take over the business. So she employed Mr Luatua to make it happen. He worked as a bouncer at a nearby bar, and as a security guard at the liquor store which was across the arcade from the kebab shop.
Using the facts set out during sentencing by the trial Judge, Winkelmann J, it seems Mr Luatua was paid $3,000 to carry out the attack. He brought Messrs Suifua and Ah-Chong in to help him. The attack was planned, and there were discussions in advance about the location of the surveillance recording device within the shop.
It was agreed that Mr Suifua and Mr Ah-Chong would carry out the initial assault while Mr Luatua hung back as a lookout. This is what happened. Mr Suifua struck first, hitting the victim hard and forcing him back inside the store. Mr Luatua watched on from the liquor store doorway.
The victim fell to the floor. When he tried to get up Mr Ah-Chong joined in and punched him. The victim fell unconscious, was dragged to the back of the shop and then Mr Luatua joined in. Before doing so, and as he left his observation post at the front of the liquor shop, he asked Mr Kain Shaw to take over as lookout, which he did.
At sentencing, Winkelmann J found that when Mr Luatua arrived, the assault by the other two was continuing. It involved punching, kicking, and stomping, all generally aimed at the victim’s head. Mr Luatua had brought a tyre iron with him, and he used that. The victim suffered significant head injuries, and was bleeding profusely.
Mr Luatua and Mr Suifua took cash from the till and from the victim’s back pocket. They also took a satchel. Mr Suifua and Mr Ah-Chong unplugged the hard drive of the computer and took that. It contained the in‑store CCTV footage. The offenders left in a car. They drove around the front of the mall and stopped to talk to Mr Reddy, who was the manager of the bar located there. Mr Reddy knew of the planned assault but had not been involved. Mr Reddy noticed blood on Mr Luatua’s jeans. Once the offenders had driven off, he sent a text to Mr Luatua telling him about the blood.
Sometime later that night, an investigating officer known to Mr Reddy spoke to him about the CCTV footage from the bar. The Crown case was that he was asked to preserve it but did not do so. It was said that Mr Reddy deliberately wiped the footage to prevent it being used as evidence. Mr Reddy initially said it was an accident that the footage was destroyed. However, he later said it was deliberately removed but only because he did not know it was still wanted, and because he wanted to free up the large amount of computer storage space it occupied.
Generally the grounds advanced by each appellant are unrelated, so we will address each appeal separately. However, the appellants join in one challenge, which relates to an incident that occurred at the time the verdicts were taken. We will deal with this as part of Mr Ah-Chong’s appeal.
Mr Ah-Chong’s appeal
Further facts
The primary version of events implicating Mr Ah-Chong come from his co‑offender Mr Vincent Suifua, who testified for the prosecution. Mr Suifua said that Mr Ah-Chong knew in advance that the plan was to hospitalise the victim. He also knew about the concerns with the surveillance system and the plan to take whatever stored the camera footage. As regards what happened during the assault, Mr Suifua said Mr Ah-Chong was fully involved. He alleged that Mr Ah-Chong punched and kicked the victim, used a chair to hit him, and generally went beyond what their expected role was.
Mr Suifua said it was him who took the satchel, and that taking the bag had not been discussed in advance. However, he said that it was Mr Ah-Chong who took the hard drive because he was directed to by Mr Luatua. He agreed that it was a threatening atmosphere at the time that Mr Luatua issued the instruction to Mr Ah-Chong to take the computer.
As for Mr Ah-Chong’s version of events, he had made a statement to the police. In that he said he did not know the plan in advance. It was only at the time of the assault that Mr Luatua had said to him to knock the guy out. He said he hit the victim with punches around the body and on the arms. Then Mr Luatua asked him to hold the victim’s arm while he hit it with the tyre iron, but he declined. He was directed to take the hard drive and did so. Later in the interview Mr Ah-Chong appeared to acknowledge that he knew in advance that the plan was to knock the victim out, and that there was talk that Mr Luatua would break the victim’s arms, but Mr Ah‑Chong thought it was a joke.
At trial Mr Ah-Chong gave similar evidence but minimised his role further. He said that he was not part of a common plan with the others, but rather he just went along to back up his mate, Mr Suifua, if needed. He claimed that he had only thrown a couple of ineffectual punches. It follows that he denied Mr Suifua’s evidence about what he did during the assault, and he denied telling another witness that he had kicked the victim. He accepted that he knew Mr Suifua’s task was to knock the victim out, but maintained he was not a party to the plan. Mr Ah-Chong said the first time he heard of the computer hard drive being taken was when Mr Luatua told him to take it.
First appeal ground – a second aggravated robbery charge should not have been added
This ground of appeal deals with the decision to amend the indictment during the trial by adding a second aggravated robbery count which alleged theft of the computer hard drive (count three). Mr Lawry submits that the Court erred in allowing the Crown to make this amendment during trial to the indictment. There was no good reason for such a late change and it was prejudicial. It is also submitted that there was no power to amend in the circumstances which applied to this trial.
The issue of when a court may amend an indictment during trial was recently considered by this Court in Satybaldin v R.[2] We do not intend to repeat the exercise but will address the points relevant to this case. Before considering the statutory provisions, it is helpful to first discuss what the background circumstances were.
[2] Satybaldin v R [2010] NZCA 593.
It was known from the outset that the hard drive had been taken during the assault. It seems as if there was always the theory that it was taken in order to suppress the surveillance footage. However, when an indictment was presented against all the offenders there was no reference to the hard drive at all. This must have been a conscious choice. Count two, the aggravated robbery count that was laid, specifically listed as particulars the money, and the satchel. There could have been, but was not, reference also to the hard drive. Messrs Luatua and Suifua pleaded guilty to the aggravated robbery count in relation to the satchel and the bag.
It does seem to be the case that no good reason existed for the prosecution to decide during the trial to add the computer hard drive as the basis of a separate aggravated robbery charge. The Judge’s ruling refers to the Crown prosecutor having come later to the trial and not knowing why it was not there from the outset. It must, therefore, be characterised as a situation where the Crown has just changed its mind, and decided it would like after all to include the theft of the hard drive.
The evidence concerning the two counts was different. There was little or no direct evidence that linked Mr Ah-Chong to any preconceived plan to take the satchel and money, and very little other than presence to link him to the actual theft of those items during the robbery. By contrast it was always known that Mr Ah‑Chong had a role in the theft of the hard drive. He had said as much in his police statement.
Against those background circumstances, we turn then to the power to amend during trial. There are two options. First, s 330 of the Crimes Act 1961 provides:
(1)A count shall not be deemed objectionable on the ground that it charges in the alternative several different matters, acts, or omissions which are stated in the alternative in the enactment describing any crime, or declaring the matters, acts, or omissions charged to be a crime, or on the ground that it is double or multiple.
(2)The accused may at any stage of the trial apply to the Court to amend or divide any such count on the ground that it is so framed as to embarrass him in his defence.
(3)The Court, if satisfied that the ends of justice require it, may order any count to be amended, or divided into 2 or more counts; and on the order being made that count shall be so divided or amended, and thereupon a formal commencement may be inserted before each of the counts into which it is divided.
As Satybaldin explains, some uncertainty exists over the scope of this provision. In particular, there is an issue as to whether subs (3) provides a general power to amend that extends beyond the specific situation described in subs (1). The traditional approach has been that it is limited to subs (1) situations, but the Supreme Court has recently questioned that.[3]
[3] Qiu v R [2007] NZSC 51, [2008] 1 NZLR 1 at [8], footnote 1.
Quite plainly the present circumstances do not come within subs (1). Had it been a question of dividing the original aggravated robbery charge so as to separate the satchel and the money into separate counts, then s 330(1) would be the applicable power. But what happened here is adding a new charge in relation to an incident not covered in the original indictment. As such, the situation falls well outside the scope of s 330(1). Further, whatever be the wider scope of s 330(3), we are satisfied it would not cover the present situation. Here, as noted, the prosecution has simply decided it would like to revisit an earlier decision not to charge a separate incident occurring within the same event. Nor was there a trial imperative necessitating the charge.
The second potential source of power to amend during trial by adding a count is s 335 of the Crimes Act 1961, the relevant parts of which read: [4]
(1)If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.
(2)If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.
...
(7)In determining whether the accused has been misled or prejudiced in his defence, the Court that has to determine the question shall consider the contents of the depositions, as well as the other circumstances of the case.
(8)The propriety of making or refusing to make any such amendment shall be deemed a question for the Court, and the decision of the Court upon it may be reserved for the Court of Appeal, or may be brought on appeal before the Court of Appeal, in the same manner as any other decision on a point of law.
[4]Satybaldin makes it plain that although the statute refers to “amending” a count, such an amendment can involve the addition of an extra count.
Again the circumstances described therein do not apply to this case. There was here no variance between the evidence and the charge. Count two was always specifically limited to the money and the satchel, and evidence emerged to confirm those thefts. Likewise, it was always known the hard drive was taken, and Mr Ah‑Chong had admitted physical involvement in taking it. The trial evidence did not represent a new revelation. Nor can it be said that count three was added to avoid confusion or unfairness. The hard drive was not anything the jury had to consider on the basis of the initial indictment. Accordingly, we do not consider s 335 was applicable.
For these reasons we agree with Mr Lawry that there was no power to add count three. The ruling under appeal which permitted the addition did not address this issue of jurisdiction; its focus was a question of whether prejudice would be caused and we agree generally with the reasons of Winkelmann J on that. The theft was well covered in evidence, and apart from the general prejudice always inherent in adding another count, no specific disadvantage could be identified. But there still must be jurisdiction to add the count, and we do not consider it existed.
Because the scope of s 330(3) is not without uncertainty, we consider it appropriate to address a second reason why the conviction on count three cannot stand.
Second appeal ground – the verdicts on count two and count three are inconsistent
Counts two and three were the aggravated robbery counts. As noted, the first dealt with the satchel and money, the second with the computer hard drive which contained the surveillance footage. Mr Ah-Chong was convicted on the latter but not on the former. Mr Lawry argues that this is not logically possible.
In order to understand the basis for the submission it is necessary to briefly review the elements of robbery and the basis on which each charge was left to the jury.
Robbery is theft assisted by violence. This means the violence must be used for the purpose of making the theft possible. It need not be the only reason for using violence, but it must be one of them. Otherwise it is theft, and it is separately assault, but it is not robbery.
Mr Ah-Chong’s story about the thefts was that he did not know they were intended. Any violence he himself used was not therefore directed at facilitating theft. Likewise, he did not appreciate that the violence being used by the others was seen by them as, in part, helping make the theft possible. When it came to stealing the hard drive that was something he did after the violence and only then because at that stage Mr Luatua told him to. So on his story, if accepted, he would be guilty of assault, and of theft of the hard drive, but not (aggravated) robbery.
The question which arises is whether it is possible on the evidence, including Mr Ah-Chong’s version of events, to convict him of one of the aggravated robberies but not both.
Looking first at the computer hard drive, it follows from what has been said that the jury must have been satisfied that when he or the others used violence, Mr Ah-Chong knew it was planned to steal the hard drive. This conclusion was readily available on the evidence: it could be inferred from his police statement, and it was certainly what Mr Suifua said. Standing alone, therefore, no issue could arise with the count three verdict which is fully supported by the evidence.
As for count two, again there is evidence to explain why Mr Ah-Chong was acquitted. The jury could have a doubt that he was aware of the plan to make it look like a robbery – he knew of the plan to remove surveillance evidence, but not more than that. So on the evidence a basis for distinction exists.
The trouble arises because count two was left to the jury on the basis of a common plan under s 66(2) of the Crimes Act 1961. This means Mr Ah-Chong would be guilty if:
·he was part of a plan to assault;
·he knew something was probably going to be stolen; and
·he knew violence would be used to achieve that.
What happens when s 66(2) is resorted to is that the accused does not need to know exactly what is to be stolen. The accused is only required to know that there would be a theft, effected by violence, and that this was a probable consequence of the common plan to assault.
The difficulty in the two verdicts now emerges. If Mr Ah-Chong knew at the time of the violence of a link between it and the theft of the hard drive, as the count three conviction says he did, then he necessarily must have had sufficient knowledge to be guilty under the s 66(2) variant of count two.
It is plain that, although Winklemann J’s directions on this were correct, the jury overlooked that under this option it could be theft of anything. If the jury viewed, as we suspect they did, the s 66(2) variant of count two as still being limited to the money and the satchel, the verdict reflects the evidence. But logically, for the reasons given, conviction on count three meant he should have been guilty of count two also.
Accordingly, for both reasons discussed we consider the conviction on count three cannot stand. We do not address what the appropriate outcome would be if the only issue were the inconsistency point.
Third appeal ground – directions on party liability for count one
Concerning count one, the Crown again relied primarily on s 66(2) of the Crimes Act 1961. It was said that Mr Ah-Chong was part of a common plan to assault Bryan Johnson, and that he knew that his co‑offenders would probably intentionally cause grievous bodily harm in carrying out the plan.
Mr Lawry was critical of s 66(2) being used at all, but we disagree. Mr Ah‑Chong sought to minimise his actual role, and to say he personally did very little by way of violence. Given this, it was appropriate for the prosecution to allege participation in a plan that had serious violence as a known likely outcome.
It was next submitted that the jury should have been instructed that Mr Ah‑Chong could only be guilty if he knew in advance that Mr Luatua had a tyre iron. Again we disagree. The topic of when an offender under s 66(2) needs knowledge of a weapon was recently canvassed in R v Vaihu.[5] It is plain from that case and others before it, that if the evidential basis for inferring that an accused knew serious harm could well happen is the presence of a weapon, then obviously the offender must know about the weapon. In such cases, absent such knowledge, there is no rational basis on which to infer foresight of serious harm.
[5] R v Vaihu [2009] NZCA 111.
Here, however, there was ample evidence to show that Mr Ah-Chong knew the plan was to knock Bryan Johnson out. Further, if accepted, there was considerable evidence to show he knew the plan was to injure Mr Johnson beyond knocking him out so as to require hospitalisation. In such circumstances the use of a weapon is not pivotal to the inference. The plan itself involved serious harm and how that was to be effected was immaterial to the allegation of foresight.
The final criticism relates to the concept of probable consequence as used in s 66(2):
Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
In her written instruction to the jury, and orally, Winkelmann J described the requirement as being foresight that the offence “could well happen”. Mr Lawry accepts this is a well settled formula.[6] He accepts that a challenge to its adequacy as a substitute for the statutory language of “probable consequence” will need to be directed not to this Court but to the Supreme Court. However, he submits that the alternative phrasing should not be used on its own, but only after the correct statutory language of “probable consequence” has first been used. In so doing the jury would have a better understanding of what the context is.
[6]R v Gush [1980] 2 NZLR 92(CA) and the numerous cases cited in Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA66.25].
There is no authority supporting the point being made. It is in reality just another way of submitting that “could well happen” is an unsatisfactory synonym. “Could well happen” is well established as an appropriate means of explaining to the jury that probable does not mean “more probable than not”. Given that probable has this somewhat specialised meaning, it could equally be argued it is better not to confuse the jury by using the word and then trying to explain what it means. It is simpler to only use a more correct expression of the test.
We therefore reject all the challenges to Winkelmann J’s directions on count one, and this ground of appeal is dismissed.
Fourth appeal ground – the taking of the verdicts
When the foreperson announced verdicts, it became apparent he had made an error. This ground of appeal, advanced by both appellants, focuses on the process followed by the Judge in dealing with the situation.
We have received affidavits from trial counsel, and a file note written by the prosecutor. There is also a bench note of Winkelmann J. Although there are slight variations in the accounts, it is possible to identify a reasonably common record.
It is necessary to commence the narrative slightly prior to the initial verdicts. Shortly before lunch, at 12.49 p.m., the jury sent the Judge a question which read:
When the foreperson is asked what the jury’s verdict is, is the answer given in relation to each question on the Judge’s handout or on what’s written on the indictment?
The jury were told at 1.03 p.m. that the question would be answered at 2.15 p.m. But, at 1.11 p.m., the jury advised:
We wish to withdraw previous question.
Next, at 1.30 p.m., the jury indicated they had verdicts. They were informed that the verdicts would also be taken at 2.15 p.m. When 2.15 p.m. arrived, before the verdicts were taken, the Judge discussed with counsel the withdrawn question. It was agreed that the verdicts should just be taken without the question being addressed. This is what happened. We pause to observe that we consider it is normally preferable to ensure the jury know the correct process, even if the jury thinks it has now sorted the problem. We would, therefore, recommend that in these circumstances the Judge should answer the question anyway.
Five verdicts were required and the foreperson delivered five. The ritual then requires the Court Registrar to ask for confirmation from the foreperson and the jury that they are the verdicts of all. This is what the Registrar did. The exact sequence of events is uncertain in terms of when the Registrar enquired and when the following comments were made, but it can be said:
·a juror in the back row said it was not right, and commented “what about sheet six”;
·there were general murmurings of discontent; and
·the foreperson apologised and said he had made an error, and also referred to sheet six.
Sheet six related only to count three.
At this stage the Judge requested the jury to retire to assist the foreperson to sort out the correct verdicts. Her Honour then discussed matters with counsel and it was agreed that a verdict sheet should be sent in. Before that was ready, the jury indicated they were again in a position to deliver the verdicts. However, Winklemann J properly required them to wait until the verdict sheet was ready.
The verdict sheet was sent in and eventually the jury returned. The foreperson again delivered five verdicts. This time the jury indicated they were unanimous verdicts, and the Judge accepted them.
Expressed in the terms just set out, it is difficult to see that much issue could be taken with what happened. The appellants’ discontent can, however, be understood when the changes in the verdicts are outlined. Recalling that sheet six related only to Mr Ah-Chong and count three, the following changes occurred:
First time
Second time
Count one – Ah-Chong
Not guilty
Guilty
Count one – Shaw
Guilty
Guilty
Count two – Ah-Chong
Not guilty
Not guilty
Count three – Ah-Chong
Not guilty
Guilty
Count four – Reddy
Not guilty
Guilty
The main thrust of the appellants’ submission is that the original verdicts on all but count three were not able to be changed. Alternatively, it is submitted that because the trial Judge failed to immediately clarify in relation to which counts there was disagreement, the new verdicts of guilty on counts one and four should be quashed. It is accepted count three could be changed by the jury because sheet six related to it.
We do not agree with the appellants’ propositions, nor do the cases relied on assist the appellants. We address these first. R v Head was a case where the Judge had discharged the jury, not realising that they wished to supplement the acquittals with guilty verdicts on included offences that were not specifically listed on the indictment.[7] The Supreme Court of Canada agreed that once the jury was discharged, there was no power to accept further verdicts.
[7] Head v R [1986] 2 SCR 684; (1986) 55 CR (3d) 1 (SCC).
R v Dwight was a case where the jury had not been discharged.[8] The jury had delivered a verdict of not guilty on a count of murder but said nothing about manslaughter. The evidence was that the foreperson believed the Judge had told him he would be specifically asked about manslaughter. So when the Registrar moved directly on to count two, the foreperson said nothing about manslaughter and just carried on to the count two verdict.
[8] R v Dwight [1990] 1 NZLR 160 (CA).
The taking of the verdicts in that case occurred in a situation of chaos because serious fighting had broken out in the courtroom after the first verdict. When it was believed all verdicts had been given, the jury were whisked out of the court until matters calmed. They were kept together in a separate room. During this period, it became clear that the foreperson had not finished delivering the verdicts. The Judge was told of this and invited the jury back into court, whereupon he took a guilty of manslaughter verdict on the murder charge.
The Court of Appeal agreed that in these circumstances the jury was not functus officio and could give a further verdict. The Court made two points – first, it could not be said the original verdict was final because there was doubt about unanimity since some jurors had immediately asked about the manslaughter. Second, the authorities were clear that before they have been discharged a jury may make an addition, or correct a slip in the verdict.
In our view Dwight is supportive of what happened here. It is the task of the Judge to be satisfied the verdicts delivered are unanimous (or the verdict of all but one if it is a majority situation). If there is doubt about that, the task is to set in place a process to ensure unanimity.
We do not accept the proposition that the Judge should have made further inquiries in open court. That is fraught with difficulties, and runs real risks of disclosing deliberations. It is important to quickly assume control and impose a formality on the situation. That is exactly what Winkelmann J did, and we consider it was the correct approach.
In Dwight, when the belated manslaughter verdict was received, the trial Judge had inquired of the foreperson whether it was a verdict he had always intended to announce, and then of the jury whether it was the verdict of them all. Mr Lawry said similar questions should have been asked here, although he appeared to be suggesting that this should have happened on the first occasion when the foreperson acknowledged mistakes.
With that proposition we firmly disagree. For the reasons we have given we consider the jury had indicated there was not unanimity with the delivered verdicts. That being so, they could not be received by the Court. What a Judge does next will be case specific. Sometimes it may be apparent, as here, that there is agreement, and that the foreperson has just made a mistake. On other occasions it may seem that there remains genuine disagreement. The correct responses will be very different. A case of genuine disagreement may well require further directions to be given, but that is not the situation here and we do not comment further on it.
There is no doubt the turnaround in verdicts was dramatic. Because of this, some Judges might have sought firmer confirmation than normal that the ultimate verdicts are correct and unanimous. But it is very difficult to say on appeal whether the situation required that. We do not have the advantage of seeing the jury; by contrast the trial Judge is present and in the best position to assess whether more is needed. We note that counsel in this case did not seek a polling, so there cannot have seemed an issue about unanimity to them.
The key factors that govern what was the correct process are that the first verdicts were not agreed to, the jury was not discharged but rather sent back to clarify matters, the jury was given a verdict sheet that must have made clear to them the decisions required, and the jury expressed clear unanimity when the second version of verdicts was delivered. In these circumstances we cannot see any basis on which to interfere.
Accordingly, we dismiss this ground of appeal. That means that, as regards Mr Ah-Chong, his conviction for intentionally causing grievous bodily harm is confirmed, but his conviction for aggravated robbery is quashed. We now turn to Mr Reddy, noting that he also advanced this final appeal ground about the taking of the verdicts and it is similarly dismissed.
Mr Reddy’s appeal
Mr Reddy was charged with an offence against s 71 of the Crimes Act 1961 in that he assisted Mr Luatua to avoid arrest or conviction, knowing Mr Luatua to have committed the offence of intentionally causing grievous bodily harm. This is the offence generally described as being an accessory after the fact.
Initially there were two actions on which the Crown relied: first, that Mr Reddy texted Mr Luatua to tell him he had blood on his trousers; and second that he destroyed evidence, namely CCTV footage belonging to a nearby bar. By the end of trial, the focus of the charge was solely on this second act of destroying evidence. The statutory wording of s 71(1) is:
… tampers with or actively suppresses any evidence against him …
The Crown case was that on the night of the incident a police officer known to Mr Reddy called on him and asked him to save the CCTV footage because police were interested in movements in and around the mall. Mr Reddy said yes, and seemingly said to the police officer he could save it to a disk. The officer said someone would be in touch. The evidence showed that Mr Reddy had previously supplied footage when asked.
Two weeks later a police officer contacted Mr Reddy by phone. Mr Reddy said that he had accidentally deleted the footage just a short time prior to the conversation. (Mr Reddy’s position is that this conversation took place much more than two weeks later, and that he never said he accidentally deleted it). Later, Mr Reddy said he had deleted it because there had been no contact from the police and it was taking up a lot of computer space. This was the explanation Mr Reddy gave at trial. He also said that he knew there would be nothing on the footage that would help.
The focus in cross-examination of Mr Reddy was why, if storage was the concern, Mr Reddy did not just transfer the footage to a disk or a USB stick before deleting it. He had apparently done this previously when providing copies to the police. Further, the officer who initially requested him to keep it was a former girlfriend with whom he was on friendly terms and whom he had seen on at least three occasions since the request. So there was also an opportunity there to check if the footage was needed.
Against that background we turn to the grounds of appeal. The main challenge is that the summing up inadequately focused the jury on the key elements of the offence that Mr Reddy was putting in issue. The question sheet provided to the jury set out these questions:[9]
·Has the Crown proved Mr Vaiula Luatua caused really serious harm to Bryan Johnson with intent to do so; and that
·Kunal Reddy knew this?
·Has the Crown proved beyond reasonable doubt that Kunal Nand Reddy destroyed evidence by deleting CCTV footage, for the purpose of helping Mr Vaiula Luatua avoid being arrested or convicted of the offence of causing grievous bodily harm with intent to cause grievous bodily harm?
[9] The first two questions are paraphrased. The third question is reproduced verbatim.
Mr Geiringer, who argued this aspect, submitted that the Judge needed to break question three up. Questions one and two were not in dispute at trial. However, question three collapsed several requirements, more than one of which was contested:
·deletion of the evidence (not an issue);
·whether what was deleted was in fact evidence (contested);
·whether deletion occurred because Mr Reddy wanted to assist Mr Luatua to avoid arrest or conviction (also contested).
The primary submission is that the question sheet, and the Judge’s oral elaboration in her summing up, were insufficient to make plain to the jury what the key defences were. In particular it failed to make plain that these two requirements were both separately disputed. An associated complaint is that the concept of evidence was inadequately explained. Given these challenges it is necessary to review the summing up but before doing so we describe how trial counsel for Mr Reddy put the case to the jury.
Counsel’s initial focus was on the lack of evidence of who, if anyone, actually asked for the CCTV footage. This was not a challenge to the fact that Mr Reddy was originally asked to keep it, but a challenge as to whether thereafter anyone ever asked for it. It was accepted that at some point an officer rang up, and that at that stage Mr Reddy said it was gone, but prior to that it was submitted there was no evidence of a request. We assume this submission was directed to Mr Reddy’s lack of dishonest intent at the time the tape was destroyed, and the credibility of his evidence that he thought it was no longer wanted.
Counsel’s next brief focus was on the issue of whether it had been shown that what was on the footage would have been of any assistance (i.e. whether it would have been evidence). The submission was made that the law requires the prosecution to show that the tape would have been evidence against Mr Luatua, and the jury could not be sure of that.
Counsel’s concluding point in his address was that Mr Reddy would have to be “dumb as a box of rocks” to do what the Crown allege, and so his explanation of honest intent when destroying the footage should be believed.
Turning to the summing up, Winkelmann J directed her initial comments to the elements as set out in the question sheet. On the disputed issue as to whether the prosecution had to prove that the CCTV footage would actually have been evidence, her Honour directed the jury:
You have to be satisfied that the CCTV footage that was destroyed was evidence which alone, or together with other evidence, provided some proof of Mr Luatua’s guilt, but you need not be satisfied that it was conclusive of guilt.
Her Honour next summarised the competing cases. We look first at the various directions about the CCTV footage.
Having directed the jury about the law in the manner already identified, Winkelmann J instructed the jury that since the tape had been destroyed, the jury could only decide whether it would have been evidence against Mr Reddy by a process of drawing inferences. Facts that could support an inference that the footage contained “evidence” were:
·the fact Mr Reddy deleted it, even though he knew the police wanted it;
·the fact that the footage was of the front of the bar and might have captured vehicle movements; and
·Mr Suifua’s evidence that he saw Mr Luatua going in the direction of the bar.
Her Honour then referred to competing points made by defence counsel. It was noted that counsel had shown the jury some still photos taken by the relevant camera at a different time. It was submitted that those photos showed how unlikely it was that any coverage of the actual event would be helpful. This was even more so when one contrasted the even poorer quality of some still night time photos taken from the same camera. Finally, her Honour summarised counsel’s submissions on Mr Luatua’s movements and how unlikely it was that he would anyway have been captured by that camera.
Concluding this discussion of the CCTV footage the Judge observed:
[151] When you come to consider whether the Crown has satisfied you that the CCTV footage deleted was evidence in the sense I have described, I direct you that you need to take some care. That is because there is no direct evidence of what was on that footage. The Crown’s case on this is entirely circumstantial, that is it is made up entirely of inferences that it is asking you to draw. As I have said to you, you need to be cautious, when proceeding to draw inference, not to guess. Conclusions you reach must be logical, and based on the evidence, not upon guesses. If when you look at all of the evidence you are not sure that the CCTV footage did contain evidence in the sense I have directed, you must find Mr Reddy not guilty on this count.
The second component of Mr Reddy’s defence was to dispute the prosecution allegation about why he destroyed the footage. It is to be recalled that counsel’s closing on this was very much just a submission that Mr Reddy’s testimony should be believed. That submission had been supported by two main planks: first, up until when it was destroyed, three to four weeks after the beating, no one had actually asked for the tape; and secondly, how stupid Mr Reddy would be to have done what the police said.
Her Honour in summarising this closing address said counsel had submitted that Mr Reddy was to be believed, and that there was a difference in evidence as to how much later in time the phone call was made by the police officer. She also summarised Mr Reddy’s explanation for lies he had told. This summary concluded with the standard tripartite direction about the effects of an accused testifying.
This lengthy review of the summing up enables us to address the appeal ground quite briefly. We agree that in the circumstances of the case it may have been preferable to break up question three so as to better isolate the component parts. However, we do not consider any miscarriage ensued. The passages to which we have referred both make it plain to the jury what aspects of the offence were in dispute and what the defence said in support of these challenges. The jury were made aware that the tape had to be proved to have been evidence against Mr Luatua, why the defence said this had not been shown, and separately why the jury should not accept that Mr Reddy destroyed the tapes so as to keep them out of the police hands. These were the key aspects of the trial, and they were adequately covered.
Mr Geiringer also complained that the summing up was deficient in that it did not seek to assist the jury sufficiently with the concept of evidence. However, we do not agree. The concept used by the Judge of “providing some proof of Mr Luatua’s guilt” is readily understandable by a jury. No more is needed to alert the jury to the contest, and to ensure the jury understands what is at issue in the contest.
We pause to comment briefly on s 71 of the Act. The proposition that the prosecution must prove the footage would have been evidence against Mr Luatua in our view puts the requirement as strictly as it can be. There are obvious dangers in requiring such an exacting standard when the evidence is no longer available.
In New Zealand the matter has previously been considered only once and Winkelmann J’s approach mirrors that of Williamson J in R v Thomson.[10] The concept of “tampering or suppressing evidence” was not part of the 1908 Act. It was seemingly added to clarify uncertainty over whether doing these things otherwise fell within s 71.[11] Overseas versions of the offence do not include this specific aspect so provide little assistance.
[10] R v Thomson (1992) 9 CRNZ 108 (HC).
[11] R v Sweeney (1905) 7 GLR 529 (CA).
The Judge put the requirement as highly as it can be. We note in Thomson Williamson J supported an expansive definition of what can be “evidence against an accused” and we agree with that. However, we consider the case can be made for expressing the matter somewhat less stringently, with a test of “could be evidence” better fitting the purposes of the legislation. It is to be remembered that culpability will only arise if an accused acts with the intention of suppressing evidence. Within that context, it seems unduly favourable to an accused to require the prosecution to prove that what the accused has destroyed in order to prevent analysis would in fact have been evidence had it not been destroyed. The difficulties created by such a task are well revealed by the facts of this case.
The next ground of appeal was that the Judge should have given a lies direction. This challenge was seemingly advanced by way of oversight as Winkelmann J did give an orthodox direction of that type.[12]
[12] [164]–[165] of summing up.
Next, it is suggested that the summing up did not adequately put the defence case. We have already reviewed counsel’s closing submissions and the summing up, and for the reasons given do not accept this point.
Finally, the proposition is advanced that counsel erred in failing to call good character evidence on behalf of Mr Reddy. Counsel had instructions to bring out Mr Reddy’s lack of previous convictions. His attempts to do so were not effective because the officer he asked could not recall. The matter could easily have been sorted out, for example by an agreed statement, but it was not. Nor was the opportunity taken to ask Mr Reddy about it when he testified.
For some time there was doubt as to whether evidence that an accused had no previous convictions was admissible under the Evidence Act 2006. The rationale for non‑admissibility was, in effect, a lack of relevance and probative value. The Supreme Court has now confirmed such evidence is admissible as propensity evidence.[13] The Court referred to the evidence as having “a slight tendency” to prove something of consequence.[14]
[13] Wi v R [2009] NZSC 121; [2010] 2 NZLR 11.
[14] The topic was recently further discussed in Gharbal v R [2010] NZCA 45.
In this case we do not consider that counsel’s ineffective effort to elicit this information raises the possibility of a miscarriage. The trial did not in any sense involve Mr Reddy’s character. It is true that there were allegations he had lied, but those alleged lies were very specific to those facts and carried no wider implication. It was a case where the absence of previous convictions would have carried very little, if any, probative value and accordingly we reject this ground of appeal.
All grounds of appeal against conviction by Mr Reddy are rejected, and accordingly the conviction stands.
Sentence appeals
Mr Ah-Chong
Mr Ah-Chong challenges the original sentence as not adequately reflecting his lack of knowledge about the weapon Mr Luatua possessed. He also seeks an adjustment if successful, on his challenge to the aggravated robbery conviction.
We have not to date expanded upon what happened to Mr Johnson, but consider it appropriate to now do so. It was an appalling vicious assault, and Winkelmann J’s denunciation of all those involved was well merited. As a consequence of the attack, it was necessary to place Mr Johnson in an induced coma. Most of the bones in his face were fractured; his eye socket was displaced and he suffered a skull fracture. Facial reconstruction surgery took 15 hours.
These facial injuries necessitated hospitalisation for three to four weeks, at which time Mr Johnson was then transferred to another hospital specialising in the care of those with brain injuries. He is recovering but continues to suffer as a result of the attack, and undoubtedly the physical and psychological consequences will be with him forever.
On sentencing the Judge made findings of fact that were well open to her. It was held that:
·Mr Ah-Chong involved himself in the plan to harm Mr Johnson;
·he must have known serious harm was likely given the plan was to begin by rendering the victim unconscious; and
·although he did not know of the weapon Mr Luatua had, Mr Ah‑Chong did use a chair during the assault. Generally the testimony of Mr Suifua as to what the appellant did was accepted.
The only issue taken with the starting point of ten and a half years is that Mr Ah-Chong did not know of the weapon. However, in the circumstances of this case we do not see that as material. He knew of the plan, he knew he was to render the victim unconscious as a starting point just so Mr Luatua could then join in and inflict more harm. The exact method of how that was to be done is of minor importance. Accordingly, we agree with the Judge’s approach and the starting point.
In our view, no adjustment is needed to reflect the quashing of the aggravated robbery conviction. A concurrent sentence of four years six months was imposed for that offence. The culpability for taking the computer hard drive did not feature in the factors that informed the overall starting point of ten and a half years, and that was understandable.
Mr Ah-Chong stands convicted of the violence which is the overwhelming criminality in this incident. The theft of the hard drive did not particularly increase culpability, its main evil being in the attempt to destroy evidence. It was not offending standing on its own but merely an extension of the violence. It does not serve to differentiate him from the other offenders in any meaningful way. His sentence appeal is dismissed.
Mr Reddy
Mr Reddy was sentenced to a term of imprisonment of eight months. Home detention was denied. It appears the Judge considered that preceding decisions established that the need for deterrence was such that home detention was an inappropriate and unavailable outcome for this offence.
However, Mr Shaw referred us to several cases where under the previous law leave to apply for home detention was granted in relation to jail terms imposed for this offence. In R v Berry, this Court gave leave to apply for home detention in relation to a 12 month sentence.[15] In R v McKenzie where the underlying sentence was seven and a half months, leave was also granted.[16] The Judge there was reluctant to do so but considered consistency with preceding decisions required him to do so.[17] In R v Ovalau Randerson J both gave leave to apply for home detention against the background of a nine month sentence, and deferred the jail sentence for two months to allow the application to be made.[18]
[15] R v Berry CA196/00, 16 August 2000.
[16] R v McKenzie HC Christchurch CRI-2005‑009‑006159, 10 March 2006.
[17]Grey v Police HC Christchurch A99/02 12 September 2002; R v Nikoro HC Christchurch T 135/96, 1 May 1997.
[18] R v Ovalau HC Auckland CRI-2006‑092‑10484, 13 March 2007.
We agree that Mr Reddy’s culpability is at least no greater than many in those cases. Whilst that is not of itself determinative, we note Mr Reddy received a favourable pre‑sentence report. He is 28 years old with no previous convictions, and is assessed as being at a low risk of further offending. The proffered home detention address was suitable and we consider it was an appropriate choice. Given that the Judge may have been influenced by an erroneous perception of the authorities we consider it appropriate to substitute our own decision.
At the conclusion of the hearing we granted Mr Reddy bail. The bail conditions we imposed were intended to reflect the conditions that would apply if home detention were granted. Prior to the appeal Mr Reddy had served about seven weeks in jail. Combining these factors he has now served the equivalent of seven months’ imprisonment, although his time on bail cannot be credited as such.
We consider immediate release is the appropriate outcome. We are reluctant to substitute no sentence since a formal record of convicted and discharged would inadequately reflect culpability. We, therefore, substitute a shorter jail term which is designed to achieve immediate release. It has no precedent value, but is merely a response to the present circumstances.
Mr Reddy’s sentence appeal is allowed. We quash the term of eight months’ imprisonment and substitute one of two months.
Solicitors:
A Shaw, Wellington for Appellant Reddy
H D M Lawry, Auckland for Appellant Ah-Chong
Crown Law Office, Wellington for Respondent
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