Stewart v The Queen - [2016] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND

CA27/2016
[2016] NZCA 217

BETWEEN	BODIE HOANI NGAPAKI STEWART Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2016 (further submissions received 17 May 2016)
Court:	Wild, Courtney and Gilbert JJ
Counsel:	M J Phelps for Appellant A Markham for Respondent
Judgment:	23 May 2016 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

At the end of a trial in the Napier District Court in November 2015 before Judge Mackintosh, the jury found Mr Stewart guilty on three charges and not guilty on five others. Mr Stewart had previously pleaded guilty to five other charges and been discharged on four. The 17 charges all related to domestic violence against Mr Stewart’s partner. The charges, and their disposition, are summarised in the schedule to this judgment.
Judge Mackintosh subsequently sentenced Mr Stewart to four years and eight months imprisonment with a minimum period of imprisonment (MPI) of 50 per cent.[1]
[1]R v Stewart [2015] NZDC 25885.
Mr Stewart appeals against his conviction and sentence.
As to Mr Stewart’s conviction, Mr Phelps submits justice miscarried for Mr Stewart at his trial as a result of the combination of the following factors: the jury was reduced to 10; the Judge gave majority verdict and then Papadopoulos directions;[2] and the jury returned its verdicts shortly after the latter direction. Mr Phelps contended there is a real risk the Papadopoulos direction “inappropriately put pressure on minority jurors to yield to majority demands”. He submitted this must particularly be so, given there were only 10 jurors and because “there had been considerable disruptions to the flow of the trial”.
[2]The form of a Papadopoulos direction is set out in R v Accused (CA87/88) [1988] 2 NZLR 46 (CA) at 59, and derived from R v Papadopoulos [1979] 1 NZLR 621 (CA) at 623
At the hearing, the Court raised with counsel whether, in terms of s 22 of the Juries Act 1981, the second juror had been properly discharged. We invited and have received further submissions on that point. Accordingly, the issues on the conviction appeal are whether a miscarriage of justice occurred in Mr Stewart’s trial either because the second juror was not properly discharged, or for the reasons advanced by Mr Phelps, or both.
The challenges on the sentence appeal are to the Judge’s sentencing starting point, the discount she allowed for the guilty pleas at trial, and to the imposition of a MPI.

The course of the trial

Mr Stewart’s trial began on 6 November 2015. Counsel informed us a Friday start was unusual, but it appears it was possible because the jury panel had been summonsed for a fortnight.
After the Judge’s opening remarks, a juror told the Judge she knew the appellant’s mother. Although counsel for the appellant (Mr Phelps) asked the Judge to discharge all the jury and start the trial afresh with a new jury on the following…

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 Stewart v The Queen

Details

AGLC: Stewart v The Queen [2016] NZCA 217
Case: [2016] NZCA 217
Decision Date: 23 May 2016 at 10 am

CaseChat Overview and Summary

The appellant, Bodie Hoani Ngapaki Stewart, appeals against his conviction and sentence for domestic violence against his partner. The Napier District Court jury found him guilty on three charges and not guilty on five others, following a trial in November 2015. The Judge sentenced him to four years and eight months imprisonment with a minimum period of imprisonment (MPI) of 50 per cent. The appellant raises several grounds of appeal against his conviction and sentence. The Court of Appeal dismissed the appeal.

As to the conviction appeal, the appellant argues that a miscarriage of justice occurred due to the jury being reduced to 10, the Judge giving majority verdict and Papadopoulos directions, and the jury returning verdicts shortly after the latter direction. The Court of Appeal rejected the appellant's submissions, stating that the Judge was entitled to assess that not discharging the second juror risked continuing the trial with a juror preoccupied with her personal predicament, and therefore incapable of performing her duty as a juror in the case. The Court of Appeal also found that the combination of factors raised by the appellant did not demonstrate a real risk that minority jurors had yielded to undue pressure.

As to the sentence appeal, the appellant challenges the Judge's sentencing starting point, the discount she allowed for the guilty pleas at trial, and the imposition of a MPI. The Court of Appeal found that the Judge's sentencing starting point was well within the range available to her, that no greater discount was appropriate for the guilty pleas, and that the imposition of a MPI was justified given the seriousness of the appellant's offending and his unwillingness to take responsibility for his actions.

The appeal, both against conviction and sentence, is dismissed.

Orders