The Queen v Kenneth Christopher Coventry

[2003] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/03

THE QUEEN

v

KENNETH CHRISTOPHER COVENTRY

Hearing:20 October 2003

Coram:Anderson J
Fisher J
Salmon J

Appearances:  B Horsley for Crown

Judgment:20 October 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]       This appellant was convicted on his trial before a District Court Judge and jury on seven counts of theft.  The Crown case is that he and three other offenders en route from Hamilton to Rotorua broke into vehicles and stole personal effects.  The three co-offenders pleaded guilty.  The evidence against this particular appellant was his association with the others en route and his active or passive participation in some way in the sorting and disposition of stolen effects.

[2]       A Notice of Appeal alleged misdirection by the trial Judge in connection with the law as to parties.  The direction was in the following terms:

[24]  Aiding or abetting involves the taking of some positive or active step by words or actions or both.  I have to emphasise that some degree of active involvement of the kind I have described is necessary.  It is often said that mere passive presence is not enough, but I have to say to you the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition to it or to express his dissent might, under some circumstances, afford cogent evidence that he wilfully encouraged and so aided and abetted.

[25]  While the person charged as a party need not know the precise details of how the crime is to be carried out, it is necessary for him to know at least the essential facts of what is going to happen.  The person charged as a party must also intend that what he does or says should assist or encourage the committing of the crime.  In other words, you are not a party if you accidentally are there or you inadvertently helped someone else to commit a crime.

[26]  One other possibility does arise and that is you have already heard that there have been three other people involved in this matter who have been dealt with by the Courts.  Now, it is not always possible to define who is to regarded as a principal offender and, I have to say to you that where it is not possible to say which of the offenders was the principal and which was a party, it is sufficient if the Crown satisfies you that each of them must have been either the principal or the party.  If you are satisfied of that, even though you cannot be sure which was which, they will both be guilty of the crime.  Essentially however, before determining that point, you must determine whether or not the accused was a party to the crime.

[3]       There has been no appearance today on behalf of the appellant.  The Court received a memorandum from Mr P T Birks of counsel instructed for the appellant advising that efforts had been made, without success, to contact the appellant at his last known address, through the Prison Service and Probation Service.  Counsel was of the view, mistakenly, that the appeal is deemed to have lapsed by virtue of s383(3) of the Crimes Act 1961 and the release of the appellant from the sentence of imprisonment he was serving in connection with these offences.  Subsection 3, however, refers to Solicitor-General appeals and is inapt in the present circumstances. 

[4]       Nevertheless, we are satisfied that the appeal is without merit, there is no misdirection by the Judge, particularly having regard to the circumstances of the case.  The appeal is therefore dismissed on its merits.

Solicitors:
Crown Law Office, Wellington