The Queen v Ith - [2006] NZCA 274

IN THE COURT OF APPEAL OF NEW ZEALAND
CA91/06
THE QUEEN
v
SAMBATH ROMEO ITH
Hearing:20 July 2006

Court:William Young P, Williams and Venning JJ
Counsel:M Lowe for Appellant

M D Downs for Crown

Judgment:27 September 2006 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed

REASONS OF THE COURT

(Given by Williams J)
INTRODUCTION
[1]       On 2 December 2005 Mr Ith, the appellant, was convicted following a District Court trial on a count of robbing, with a Mr Meleisea, a Mr Harper of cash and a bottle of “Jim Beam” bourbon.
[2]       He appeals his conviction on the ground that the Judge’s summing-up was unfairly prejudicial in its summary of the defence case and incorrect in its treatment of Mr Ith’s identification defence.
Facts
[3]       The Crown case was that at about 8:00pm on 18 May 2004 Messrs Ith and Meleisea went to rob a wine shop called Henty’s Wines in Eden Terrace, Auckland. They had a balaclava and a knife. Their original plan was that Mr Ith should rob the wine shop while Mr Meleisea remained as lookout. But Mr Ith thought he might be recognised by the shop assistant, Mr Harper, and as a result the two swapped roles. Mr Meleisea went into the wine shop disguised with the balaclava and brandishing the knife. He was given the till contents of between $300‑$400 and a bottle of “Jim Beam” bourbon. The two then ran away to a nearby boarding house, the Edinburgh Castle, where they were apprehended by Police shortly afterwards.
[4]       The Crown case was materially assisted by two factors. First, a Mr Lines, who lived and worked in the neighbourhood, was on his way to Henty’s wine shop when two men ran past. He picked up the beanie one dropped as they did so, ran after them and returned it. They were then hammering at the door of the Edinburgh Castle for entry. He recognised one as a man he had seen in the neighbourhood and around the Edinburgh Castle several times weekly over a period of about a month. In Court, he told the jury of that recognition and identified that person as Mr Ith. After returning the beanie Mr Lines went back to Henty’s wine shop to be told by the assistant it was closed because it had just been robbed.
[5]       He maintained that evidence in cross-examination though acknowledging he had been drinking before this to the point where he thought he needed to persuade someone to drive him to a neighbouring liquor store on discovering Henty’s was closed.
[6]       The second significant matter strengthening the Crown case was that after a period denying his involvement – including challenging in Court the admissibility of his statement to the Police – Mr Meleisea pleaded guilty to aggravated robbery of the wine bar and gave evidence for the Crown.
[7]       He said he first met Mr Ith about lunch time on the day of the robbery at his work-place. 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 The Queen v Ith

Details

AGLC: The Queen v Ith [2006] NZCA 274
Case: [2006] NZCA 274
Decision Date: 27 September 2006

CaseChat Overview and Summary

The case of The Queen v Sambath Romeo Ith was heard in the Court of Appeal of New Zealand. Ith, the appellant, had been convicted in the District Court of robbing a wine shop with Meleisea, resulting in the theft of cash and a bottle of bourbon. Ith appealed his conviction on two grounds: the summing-up by the Judge was allegedly unfairly prejudicial and incorrect in its treatment of his identification defence. The appeal was dismissed by the Court.

The central legal issues revolved around whether the summing-up was balanced and fair, and if the evidence regarding Ith's refusal to participate in an identification parade was appropriately handled by the court. The appellant's counsel argued that the summing-up was imbalanced and did not fairly summarise the defence case. Furthermore, they contended that the evidence of Ith's refusal to participate in an identification parade was inadmissible and should not have been presented to the jury.

The Court of Appeal considered the arguments presented by both parties. They examined the summing-up in detail and concluded that despite some criticisms, it was fair and did not prevent the jury from properly evaluating the defence case. The Court also found that the evidence regarding Ith's refusal to participate in an identification parade, while not ideal, did not lead to a miscarriage of justice. The Court emphasised that there are circumstances where such evidence may be admissible and that the Judge appropriately directed the jury to not draw any adverse inferences from the appellant's exercise of his statutory rights.

Ultimately, the Court found that neither ground for appeal was substantiated, and the appeal against conviction was dismissed. The original conviction of the appellant stood.

Orders