The Queen v Pirioa Maruaao
[2000] NZCA 137
•20 July 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA149/00 |
THE QUEEN
V
PIRIOA MARUAAO
| Coram: | Thomas J Keith J Tipping J |
| Judgment: | 20 July 2000 |
(ON THE PAPERS)
| JUDGMENT OF THE COURT DELIVERED BY TIPPING J |
The appellant, Pirioa Maruaao, was found guilty of aggravated robbery by a jury in the District Court at Auckland. He was sentenced to three years and eight months imprisonment. He appeals against conviction and sentence.
The appellant applied for legal aid in respect of this appeal. The Registrar declined the application after the necessary consultation pursuant to s15 of the Legal Services Act 1991. The decision to refuse aid was confirmed on review. The appeal is, therefore, to be determined on the basis of written submissions.
On 25 August 1999, Mr Maruaao and a co-accused, Mr Kalolo, were passengers in a white Honda Integra. They directed the driver to stop the car near a dairy in Remuera. The Crown case was that Mr Maruaao and Mr Kalolo got out of the car and formulated a plan to rob the dairy. After waiting for a customer to leave they ran into the dairy, where they were aggressive and extremely confrontational. Mr Maruaao allegedly launched himself over the counter in the direction of the victim, knocking over a confectionery display in the process. The victim was able to avoid Mr Maruaao, who fell to the ground behind the counter. The victim cowered behind the counter and offered no resistance as Mr Kalolo took the till from the counter top and attempted to leave the shop with it. The till was still plugged in and when the cord reached its maximum extension the till was pulled from Mr Kalolo’s grasp. It fell onto the floor and sprang open. Mr Kalolo grabbed the notes from the till, amounting to between $120 and $200, and both men ran out of the shop to the nearby car. The two men were apprehended once they had driven to another location. The police recovered about $185 in total from their persons, predominantly made up of the same denominations of the money as stolen in the robbery.
Mr Kalolo pleaded guilty upon arraignment to aggravated robbery. Mr Maruaao’s defence at trial was that it was not himself, but a third man whom Mr Kalolo met outside the dairy, that committed the robbery. The main issue was, therefore, the identity of the second person.
Conviction
The first ground of appeal is that the police incorrectly withheld evidence that would have aided the defence case. When Mr Maruaao was processed at the police station the police took from him several items of property, including his cashflow card. On the first day of trial Mr Maruaao’s lawyer was given a property list but the cashflow card was not on it. It appears that the cashflow card was, however, included in property sent out to the prison by the police. The Crown case was that the money found in the possession of one or both of the accused men came from the dairy. Mr Maruaao’s explanation was that he had withdrawn the $65 found on his person from his bank account earlier in the day. Mr Maruaao applied to introduce new evidence from the receiving officer on the basis that evidence of his possession of the cashflow card at the time he was apprehended would have supported his defence.
This ground of appeal must fail. The evidence relating to the cashflow card would have made no difference to the strength of the defence case. The Crown did not at any stage suggest that Mr Maruaao was not in possession of his cashflow card on the day of the offence. Instead, the Crown drew attention to the absence of any evidence of bank account records to support Mr Maruaao’s claim that he had withdrawn money earlier in the day. In any event, the Crown case did not necessarily rely on being able to show that the money found on Mr Maruaao’s person came from the robbery. This is because approximately $120 was found in Mr Kalolo’s possession, which is consistent with the shop owner’s evidence that between $120-$200 had been removed from the till, of which up to $40 was lying on the floor of the shop after the robbers left. As the Judge commented in sentencing, whether the money in Mr Maruaao’s pockets came from his bank account or not, he was a party in every sense to the taking of the total sum from the shop.
The second ground of appeal is that the victims did not properly identify the offenders, but merely gave descriptions. It is indeed the case that the owner of the dairy and his daughter did not identify the offenders at trial, although they were able to give general descriptions of their appearances. That they could not identify the robbers is unsurprising given that the offence was sudden, unexpected and occurred within a very brief period of time. It was for the jury to assess the descriptions given by the victims and to weigh that evidence along with other evidence as to identity, such as the independent eyewitness account of the two men entering and leaving the dairy and leaving in the car, the evidence of the black beanie found in the car and the money found in the possession of the two men. The jury by its verdict concluded that it was established beyond reasonable doubt that Mr Maruaao was one of the offenders and there is no basis for us to interfere with its assessment.
The next ground of appeal relates to the failure of Mr Maruaao’s lawyer to call Mr Kalolo to give evidence. In his written submissions Mr Maruaao states that he was told by his lawyer that a co-accused who had pleaded guilty could not give evidence in support of his fellow co-accused. That is not strictly accurate. Section 5(7)(c) of the Evidence Act provides that a person who is jointly charged with another person is a competent and compellable witness for the prosecution or defence of the co-accused if that person has pleaded guilty to the offence. However, to admit evidence from Mr Kalolo in this case would have been contrary to the practice that a person jointly charged with an offence will not be called to give evidence in the trial of their co-accused until he or she has been finally dealt with, which includes sentencing: R v Nigro [1981] 2 NZLR 178, 183-184. This is because, at any earlier stage, the incentive for the co-accused to misrepresent events exists. We add that it is very unlikely that evidence from Mr Kalolo would have assisted Mr Maruaao’s case when weighed against the evidence of the shop owner and that of the independent eyewitness who saw the two offenders leave the shop and chased them back to their car. We note also that the jury had the benefit of seeing and hearing Mr Maruaao’s evidence as to what occurred and of weighing up his credibility.
The final ground of appeal against conviction is that Judge pressured a jury member to go home. The Jury retired at 12:35pm on the second day of the trial. At 5:53pm the Jury was still deliberating, having adjourned for lunch and asked several questions in the interim. The Judge gave an amended Pappadapoulos direction. The jury stopped for dinner, then resumed its deliberations. At approximately 8:30pm, the Judge was informed that one juror was sick and had been vomiting. He inquired as to whether the jury was still making progress and was informed that they were. He directed that the ill juror could be discharged on the grounds of ill health and that the Registrar would inquire after a couple of minutes as to what the juror wanted to do. At 8:48pm and having agreed with both counsel what he should say, the Judge directed the jury that if the ill juror was well enough to continue, she could do so, but that if she was unable to continue on the grounds that she was feeling unwell then the Judge would discharge her. The juror replied that he or she was not feeling very well at all, and was duly discharged. At 9:17pm the jury of 11 advised that it had reached a unanimous verdict of guilty.
We can find no fault with the process followed by the Judge throughout the jury’s deliberation, including his decision to discharge the ill juror. The appellant refers to the Judge “by his body language” pressuring the ill juror to go home but there is nothing to support that submission. Indeed the written record of what took place confirms that no such pressure was applied.
It follows that the appeal against conviction fails.
Sentence
The appellant submits that he was incorrectly sentenced on the basis of a pre-sentence report prepared for sentencing on an earlier burglary unrelated to the present charge. He argues that his circumstances had changed greatly since that report was prepared and that this should have been taken into account. Mr Maruaao does not give any details in his submissions about what these changes to his circumstances were.
The reasons for the absence of a detailed pre-sentence report in relation to this charge are fully explained in the sentencing notes and accompanying documentation. When a probation officer visited Mr Maruaao in prison for the purposes of preparing a report, Mr Maruaao declined to be interviewed, insisting instead that he be interviewed by the probation officer who had dealt with him on an earlier charge. When it was explained to Mr Maruaao that his former probation officer no longer had any official relationship with him, he continued to be uncooperative. The probation officer was left with no option but to furnish the court with the pre-sentence report prepared for Mr Maruaao’s last court appearance in November 1999. On that occasion Mr Maruaao had been sentenced to a period of imprisonment. He had been released for only a short period when he committed the present offence. When he was called to be sentenced on this offence, Mr Maruaao advised the Court through his lawyer that he wanted another chance to speak to the probation officer. The Judge declined to grant an adjournment for that purpose. Counsel for Mr Maruaao did, however, have an opportunity to speak to her client in the cells to ensure that any changes in Mr Maruaao's circumstances were brought to the Court’s attention.
We are satisfied that the Court was adequately informed of Mr Maruaao’s circumstances. Given that Mr Maruaao had been incarcerated for most of the period since the previous report was prepared, it is unlikely that significant changes to his circumstances had taken place. Mr Maruaao had ample opportunity to bring any relevant matters to the attention of the sentencing Judge.
In his notice of appeal the appellant raised the more general ground that the sentence of three years and eight months is manifestly excessive in all the circumstances. This sentence was well within the guidelines set out in R v Mako, CA446/99. It must also be borne in mind that no credit was available for a guilty plea. The sentence was within the range available to the sentencing Judge and no basis exists for us to interfere with it on appeal.
The appeal against sentence also fails.
Result
The appeals against conviction and sentence are dismissed.
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