Romanov v The Queen - [2018] NZCA 59

IN THE COURT OF APPEAL OF NEW ZEALAND

CA413/2017
[2018] NZCA 59

BETWEEN	RICARDO ROMANOV Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2018
Court:	Gilbert, Simon France and Whata JJ
Counsel:	J J Corby for Appellant A N Isac for Respondent
Judgment:	20 March 2018 at 3 pm

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.
BThe conviction is quashed.
CThere is no order for a retrial.

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REASONS OF THE COURT

(Given by Simon France J)

Mr Romanov was convicted following a jury trial of burglary involving the theft of a valuable motorcycle. He appeals against his conviction on the basis that prejudicial material introduced at trial caused an unfair trial. He also appeals against the sentence of seven years’ imprisonment.[1]

Facts

[1]R v Romanov [2017] NZDC 9091.

For the purposes of the appeal, the facts can be briefly stated. It is alleged that Mr Romanov decided to steal a valuable Ducati motorcycle. There was evidence of him undertaking computer searches to locate the bike, and where the owner lived. One evening, the bike was stolen from its shed. A balaclava left at the scene had DNA on it linked to Mr Romanov. A search of his flat located a key that would start the relatively uncommon bike. The burglary was allegedly carried out by Mr Romanov and an accomplice. The accomplice testified for the Crown. The defence was that the accomplice alone did it and, for reasons of personal animosity, was setting Mr Romanov up.
More relevant to the appeal is Mr Romanov’s past. He has also at times been known by the name Anthony Ricardo Sannd or variations on that. In that persona, he was responsible for the high profile armed theft of a valuable painting from the Auckland Art Gallery. The relevance of this is that Mr Romanov has a past that carries considerable prejudice to someone defending a charge of having meticulously planned and carried out the theft of a valuable bike.

The issues

Aspects of Mr Romanov’s past found their way into the trial. The issue is whether the Judge’s directions to the jury about these pieces of information and their obvious prejudice were sufficient to mitigate the risk to a fair trial. In that regard it has not been suggested the Judge should have done or said more.
When considering the issues, it is necessary to keep in mind there are three topics — time spent in prison as a result of this charge, time spent in prison as a result of past offending, and the use by Mr Romanov of aliases.
Mr Romanov acted for himself. Mr Corby who presents the appeal was initially trial counsel. Mr Romanov dispensed with his services, but Mr Corby then accepted appointment as amicus.[2]

The events

Custodial remand and sentence relating to this charge

[2]This occurred prior to this Court’s decision in Fahey v R [2017] NZCA 596, which rejects such an approach.

The first occasion arose during Mr…

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 Romanov v The Queen

Details

AGLC: Romanov v The Queen [2018] NZCA 59
Case: [2018] NZCA 59
Decision Date: 20 March 2018 at 3 pm

CaseChat Overview and Summary

In Romanov v The Queen, Ricardo Romanov appeals against his conviction for burglary involving the theft of a valuable Ducati motorcycle. Romanov contends that prejudicial material introduced during the trial, which included references to his prior criminal history, time spent in prison, and use of aliases, caused an unfair trial. Romanov also appeals against his sentence of seven years' imprisonment. The Court of Appeal of New Zealand allowed the appeal against conviction and quashed the conviction but did not order a retrial.

The central issue in this case was whether the prejudicial material introduced at trial caused a miscarriage of justice, thereby damaging Romanov's right to a fair hearing. The Court of Appeal considered the effect of the prejudicial material, including multiple references to Romanov's criminal history and time in prison, as well as the revelation that Romanov had used multiple aliases. The Court found that the Judge had attempted to mitigate the risk of a fair trial by directing the jury to disregard the prejudicial material, but that the circumstances were such that Romanov's right to a fair hearing was irretrievably damaged.

The Court of Appeal held that the introduction of prejudicial material, particularly the multiple references to Romanov's criminal history, time in prison, and use of aliases, caused a miscarriage of justice. The Court found that the Judge had done all that he could to address the prejudicial material, but that the circumstances were such that Romanov's right to a fair hearing was irretrievably damaged. The Court of Appeal allowed the appeal against conviction, quashed the conviction, and did not order a retrial.

Orders