Rophia v The Queen - [2014] NZCA 633

IN THE COURT OF APPEAL OF NEW ZEALAND

CA401/2014
[2014] NZCA 633

BETWEEN	GRANT TEOTINGA ROPIHA Appellant
AND	THE QUEEN Respondent

Hearing:	18 November 2014
Court:	French, Asher and Clifford JJ
Counsel:	N P Chisnall and M J Inwood for Appellant J E Mildenhall for Respondent
Judgment:	19 December 2014 at 2.15 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, Grant Teotinga Ropiha, was charged with assault with intent to injure and elected trial by jury. At the conclusion of the Crown case, Judge Rea discussed with counsel whether a charge of common assault, which as a matter of law is included in a charge of assault with intent to injure, should also be left to the jury. The Crown concurred, but counsel for Mr Ropiha disagreed. The Judge nevertheless decided that in the circumstances that was the appropriate course of action, and directed the jury accordingly.
The jury returned a guilty verdict on the charge of common assault (the included charge) and a not guilty verdict on the charge of assault with intent to injure. Judge Rea sentenced Mr Ropiha to 175 hours’ community work and nine months’ supervision.[1]
[1]R v Ropiha DC Napier CRI-2013-020-3342, 9 July 2014.
Mr Ropiha now appeals against his conviction, principally on the basis that a miscarriage of justice resulted from the Judge’s decision to leave the included charge to the jury. Mr Ropiha also says that the Judge’s action in providing the jury with a Papadopoulos direction at the same time as he provided them with a majority verdict direction further contributed to the likelihood of miscarriage.[2]

Facts

[2]The current form of the so-called Papadopoulos direction is to be found in R v Accused (CA87/88) [1988] 2 NZLR 46 (CA) at 59. The direction in its original form is set out in R v Papadopoulos (No 2) [1979] 1 NZLR 621 (CA) at 623 and 626.

Mr Ropiha was charged with assaulting the 19 year old daughter (T) of his then partner (P). At the relevant time, P and T were continuing an ongoing argument based on P’s disapproval of T’s association with gang members and the fact that T did not contribute to the upkeep of the household. According to T, P and T had been shouting at each other for about an hour and a half, and had continued to do so when P went to have a shower. T’s evidence was that at that point Mr Ropiha had come into the kitchen, where she was washing the dishes, and they had exchanged insults. T said Mr Ropiha then punched her to the right side of her jaw. She remonstrated with him and he punched her twice more, kicked her in the knee and, when she dropped to the ground, kicked her a further four times.
P did not witness the assault, but gave evidence that after she left the shower she found Mr Ropiha…

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 Rophia v The Queen

Details

AGLC: Rophia v The Queen [2014] NZCA 633
Case: [2014] NZCA 633
Decision Date: 19 December 2014 at 2.15 pm

CaseChat Overview and Summary

In the case of Rophia v The Queen, the Court of Appeal of New Zealand heard an appeal against conviction brought by the appellant, Grant Teotinga Ropiha. The appellant was charged with assault with intent to injure and had elected to be tried by jury. After the Crown's case was presented, the Judge decided to leave the charge of common assault, which is included in the charge of assault with intent to injure, to the jury. The jury returned a guilty verdict on the charge of common assault and a not guilty verdict on the charge of assault with intent to injure. The appellant was sentenced to 175 hours of community work and nine months of supervision. The appellant appealed his conviction, arguing that the Judge's decision to leave the included charge to the jury resulted in a miscarriage of justice. Ropiha also claimed that the Judge's action in providing the jury with a Papadopoulos direction at the same time as he provided them with a majority verdict direction further contributed to the likelihood of miscarriage.

The Court of Appeal examined the legal issues involved in the case, including the principles guiding a judge's discretion as to whether to put an included offence to the jury, and the circumstances under which an appellate court would intervene. The Court found that there was no prejudice or unfairness to the appellant in the Judge's decision and that the sequential Papadopoulos and majority verdict directions did not put any illegitimate pressure on the jury. The Court of Appeal dismissed the appeal against conviction.

Orders