Soper v The Queen
[2013] NZCA 532
•1 November 2013 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA647/2012 [2013] NZCA 532 |
| BETWEEN | FENTON TERRENCE SOPER |
| AND | THE QUEEN |
| Hearing: | 26 September 2013 |
Court: | Ellen France, Priestley and MacKenzie JJ |
Counsel: | Appellant in person |
Judgment: | 1 November 2013 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
B The appeal is dismissed.
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REASONS OF THE COURT
(Given by Priestley J)
Introduction
The appellant was charged with an aggravated robbery which occurred on Auckland’s North Shore in January 2011. The count alleged he had committed this robbery with a Mr Nia who had previously pleaded guilty.
The appellant was convicted in April 2012 at the conclusion of a trial before Judge McElrea and a jury. A co-accused in the same trial was charged with being an accessory after the fact (s 71(1) of the Crimes Act 1961). The jury failed to agree on a verdict for that accused.
The appellant says he was wrongly convicted. He repeats the defence that he ran at his trial. He had nothing to do with the robbery and was a mere bystander.
The appellant prepared his own notice of appeal and submissions. He spoke to those submissions and, at his request, participated in the appeal hearing by audio‑visual link.
The appellant seeks an extension of the time period within which to file a notice of appeal. He points to delays flowing from attempts to obtain a grant of legal aid. The delay has not caused any prejudice, nor is the application opposed. We thus grant the extension the appellant seeks.
Background
On the night of the robbery the appellant was one of four occupants of a motor vehicle. The group had visited Auckland’s North Shore for purposes which are unclear. Alcohol had been consumed.
The robbery was spontaneous. The victim, a young man, was walking home from work. He was to be collected by his partner who was waiting for him in her car along the road. As the victim walked along the footpath he saw a car parked with its headlights on. This was the vehicle in which the appellant and his group had been travelling. Two men appeared to be urinating against a nearby fence. A third person was standing between the two open car doors.
As the victim drew level with the vehicle, one of the men (on the Crown case the appellant) spoke to him and demanded cash. The man then punched the victim on the nose and was joined by another (Mr Nia) who hit the victim’s head several times. The victim handed over his cellphone. A black branded bag was snatched from him. In the meantime the victim’s partner had observed the assault from a distance and drove towards the parked car flashing her vehicle’s lights and blowing its horn. The occupants of the parked vehicle entered it and drove off at speed. Both the victim and his partner gave evidence that the man who had assaulted the victim was the same person who was the last to enter the vehicle through the front passenger door.
The victim had the presence of mind to note the vehicle’s registration number. A few minutes later it was stopped by a police patrol. The appellant was the front seat passenger. In the foot well of his seat sat the victim’s bag.
The trial
The Crown’s opening address to the jury outlined a simple case. It was the appellant and Mr Nia who carried out the street robbery, beating up the victim and stealing his bag, phone, and other belongings. As the victim approached the parked car there were three men standing near it, being the accused, Mr Nia, and another man, Mr Mahanga. The Crown, in opening, indicated it was the appellant who punched the victim in the face initially. Mr Nia joined in. It was the appellant who demanded the victim’s cellphone.
The appellant was represented at trial by counsel and gave evidence. His counsel accepted that the victim had been robbed by Mr Nia. In his short opening address to the jury, counsel stressed the importance of proof beyond reasonable doubt and in particular challenged the Crown’s assumption that the appellant and one other person had jointly robbed the victim. It was accepted the appellant had been present when the robbery took place. But there was no common intention on his part to combine with Mr Nia to carry out the robbery.
The appellant’s evidence was he was not involved in the robbery. Rather he was urinating outside the car, wet his clothing, and was looking inside the vehicle for some item with which he could dry himself. In his search he tossed various items from the car on to the footpath. Whilst doing this he noticed Mr Nia punching somebody. He pulled Mr Nia off the victim, collected the jettisoned items from the footpath, and then sat in the front passenger seat just before the car drove off.
The Crown, during its closing address, commented that no other witnesses had seen the actions the appellant described. The Crown submitted to the jury that it should reject the appellant’s evidence for a number of reasons, which we need not detail, but which included evidence of tattoos and in particular the evidence of the victim’s partner, that the person who was pulling at the victim’s bag was the person who got into the front passenger seat.
Defence counsel’s closing address to the jury was lengthy, analysed the evidence, referred to discrepancies between the narratives of the victim and his partner, focused on evidence about how the assailants were clothed, and understandably stressed that the Crown had to prove guilt beyond reasonable doubt.
Two other matters arising out of the trial need brief comment. The first was that when the car, in which the appellant was a passenger, was stopped by the police, he attempted to hide an air gun on the road underneath the vehicle. (At the time of his arrest the appellant was in breach of both his bail hours and a condition that he should not possess firearms.) The Judge gave the jury a very clear direction that evidence about this air gun was irrelevant to the trial and should not be considered. There was no evidence that the gun had featured in the robbery.
The second matter was that the Crown, in closing, suggested an alternative issue for the jury. It was that, if they were not satisfied the appellant was an assailant, he might nonetheless have been acting as a look out. There was evidence that a warning shout was given as the car, driven by the victim’s partner, approached the scene flashing its headlights and tooting its horn.
The Judge discussed with counsel in chambers, in a general way, the principles of ss 66(2) and 235(b) and seems to have reached the view that the Crown case could not rely on the appellant acting merely as a look out. We need not comment on this approach. In his summing‑up to the jury the Judge directed that, even if they were satisfied the appellant had acted as a look out, that would not be enough to make out the charge of being a party to aggravated robbery. The Judge informed the jury that the main basis of the Crown’s case was the appellant was directly involved in the robbery “in the sense that he was one of the assailants”.
Discussion
The appellant’s submissions raised a number of issues. All of these were designed to suggest that he had not been properly identified and had been a victim of a miscarriage of justice.
In documents filed in support of his appeal, the appellant criticised his trial counsel. However, despite directions from this Court, given in February and April 2013, the appellant has failed to comply with r 12A of the Court of Appeal (Criminal) Rules 2001. No waiver has been provided. Nor has the appellant sworn and filed an affidavit to support his allegations.
We decline to consider these allegations (which were not pursued at the hearing). We do not intend to refer to them in fairness to trial counsel. Our only comment is that, having perused counsel’s cross-examination and his closing address, we can see no basis for any suggestion that the defence case at trial was not put fully and competently.
The appellant additionally applied to adduce new evidence from Messrs Mahanga and Whiteford. However, no sworn affidavits were filed from either man. We thus need not deal with the application and dismiss it.
A summary of the appellant’s appeal points is:
(a)The description given of the relevant assailant by Crown witnesses at trial (particularly as it related to skin colour and clothing) did not fit the appellant.
(b)There were other occupants of the vehicle that night who were in fact the assailants.
(c)The victim was not asked to identify the appellant in Court.
(d)There was no forensic evidence pointing to the appellant and in particular no blood stains on his clothing.
(e)When the victim gave evidence, his description of his assailant was “an orchestrated description” stemming from photographs produced by the Crown at trial and not from his initial statement.
(f)The victim’s evidence relating to the appellant’s identity was in fact false and resulted in a miscarriage of justice.
(g)A co-accused (Mr Mahanga) was acquitted before trial pursuant to s 347 of the Crimes Act. For a variety of reasons he should not have been acquitted.
(h)The police investigation of the case was deficient. They failed to “do a standard photo line up procedure”; they failed to photograph the appellant’s shoes and hands; they failed to note the type and colour of his shoes; and failed to record the amount of money ($1,276) in his wallet.
(i)The appellant was effectively “a scapegoat in order to get a conviction to satisfy the justice system”. Because of his history for violent crimes, “it would be more logical to try and convict me rather than the person who actually committed the crime, whom the [C]rown prosecutor or police had no evidence for” (sic).
(j)The victim and his partner had both lied about the identity and movements of the first assailant.
(k)Had the appellant actually committed the crime, he would have been prepared to plead guilty to an offered “plea bargain” of two years imprisonment. He did not do so, however, because he had not committed the crime.
Analysis
In essence, the appellant’s submissions engaged s 385(1)(a) of the Crimes Act, suggesting as they do that the jury’s verdict was unreasonable or unsupported by the evidence. In terms of Owen v R[1] and Munro v R,[2] the appropriate inquiry is whether, having regard to all of the evidence at trial, a jury could reasonably have been satisfied beyond reasonable doubt of guilt.
[1]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
[2]Munro v R [2007] NZCA 510, [2008] 2 NZLR 87.
It is not this Court’s function to substitute our view of the evidence. Nor is it for us to review or weigh such matters as witness honesty and reliability or the overall weight of evidence led at trial.
The appellant’s submissions constitute a full attack on the credibility and reliability of the two principal Crown witnesses. Each submission is essentially a repetition of the central core of his evidence which he gave at trial. He was not, he said, an assailant. He did not participate in the robbery on the victim. He was otherwise engaged, urinating, and searching for some item with which to dry himself. In short, the appellant’s evidence at his trial conflicted with the evidence of Crown witnesses.
This conflict was put to the jury and explored in detail by defence counsel. The Judge too put the appellant’s simple defence, which was that he was not involved in the robbery.
The jury, by its verdict, was clearly satisfied beyond reasonable doubt that the appellant was an assailant. His evidence must have been disbelieved. Certainly it fell short, in the jury’s eyes, of raising a reasonable doubt.
In these circumstances there is no basis on which we can properly interfere with the jury’s verdict. We consider that the jury, on the totality of the evidence they heard, could reasonably be satisfied of guilt beyond reasonable doubt. There has been no miscarriage of justice.
For these reasons the appeal will be dismissed.
Result
The application for an extension of time to appeal is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent