The Queen v Rata

[2007] NZCA 431

IN THE COURT OF APPEAL OF NEW ZEALAND

CA235/07
[2007] NZCA 431

THE QUEEN

v

CHRISTOPHER TERRANCE RATA

Hearing:17 September 2007

Court:Ellen France, Wilson and John Hansen JJ

Counsel:L C Rowe for Appellant

M D Downs for Crown

Judgment:5 October 2007 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe conviction is quashed.

CThere is no order for a retrial.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant was tried by a jury on two charges, namely, assault with intent to rob whilst armed with a firearm (s 236(1)(b) of the Crimes Act 1961), and assault with a firearm (s 198B(1)(a) of the Crimes Act).  The jury returned a guilty verdict on the first charge (count 3) and an acquittal on the second (count 4).

[2]       After the jury gave their verdicts the trial Judge, Wild J, convicted the appellant on the charge of assault with intent to rob.  The appellant’s counsel then indicated to the Court that he considered the jury’s verdicts were inconsistent and made an application for a discharge under s 347 of the Crimes Act.  In a ruling delivered on 7 May 2007, Wild J expressed the tentative view that the verdicts were irreconcilable but dismissed the s 347 application on the basis that there was no jurisdiction to discharge.  That was because the appellant had been convicted in open court: HC WANG CRI 2006 083 1684.

[3]       Wild J did not sentence the appellant because he could not see any point in doing so and considered it would be anomalous. In a later ruling on 7 June 2007, Wild J granted the appellant bail pending appeal.

[4]       The appellant appeals against conviction on the grounds that the verdicts are inconsistent and the conviction is unreasonable in terms of s 385(1)(a) of the Crimes Act.

Background

[5]       The appellant stood trial with Patrick Waretini who faced charges arising out of the same incident.  Mr Waretini was charged with attempted murder (count 1), assault using a firearm (count 2), and assault using a firearm with intent to rob (count 3). 

[6]       Count 3 charged both Mr Waretini and the appellant but they were not charged as parties.  Rather, the Crown case was that they were each armed with a firearm and each acted in a way as to satisfy the elements of count 3.  Mr Waretini was found not guilty of attempted murder and guilty of the other two charges.

[7]       The incidents giving rise to the charges took place on 3 April 2006.  The Crown case was that the appellant and Mr Waretini armed themselves with firearms and went to the complainant’s home that day with the intention of robbing him of his money and possibly also of drugs.

[8]       The complainant gave evidence of the two men arriving and that the appellant had a gun in his hand.  The complainant then described being hit on the back of the head by the appellant and the appellant pointing the gun against his stomach.  The complainant’s girlfriend, who was also in the house, gave evidence of the three squabbling and of the appellant standing with the gun up to the appellant’s chin or mouth asking her “Where’s the money?”

[9]       Mr Waretini and the appellant accepted that they went to the complainant’s house.  Both accepted there were assaults.  The appellant said he punched the complainant in the face or head but denied the use of guns in the way alleged by the Crown.  Both Mr Waretini and the appellant said they went unarmed and that the complainant pulled a gun on them.  The defence case was that Mr Waretini wrestled it off the complainant and used it to hit him over the back of the head. 

Inconsistent verdicts

[10]     The basis on which the relevant charges were put were summarised by the Judge in summing up in this way:

[10]     Count 4 [assault with a firearm] charges [the appellant] in the same terms.  The Crown case here is that [the appellant] pointed his gun into [the complainant’s] stomach and/or that he held his gun up to his chin or mouth in a threatening manner while demanding [the complainant’s] money.

[11]     Count 3 [armed assault with intent to rob] charges both accused with assaulting [the complainant] armed with their firearms and with the intention to rob [the complainant] of his money.  Again, the essence of this charge is the accused’s use of their guns to rob [the complainant].

…

[35]     As I have said, the essence of the Crown case is that the two accused armed themselves with firearms and went to [the complainant’s] home that day with the intent of robbing him of his money, and maybe also of his stash of drugs.  Once there, Mr Waretini held his loaded pistol against [the complainant’s] head and pulled the trigger, intending to kill [the complainant]. To shoot him dead.  That is count 1.  That both accused pointed their weapons at [the complainant], Mr Waretini at [the complainant’s] head, [the appellant] at [the complainant‘s] stomach in the course of giving him a hiding, assaulting him, and [the appellant ] also held his gun, his firearm up to his chin in a threatening way.  That is counts 2 and 4.  And that the accuseds’ use of their weapons while assaulting [the complainant] was with the intention of robbing [the complainant] of his money.  That is count 3.

[11]     The same approach is also apparent from the Judge’s response to two questions from the jury.  The jury had asked the Judge to clarify the legal definition of part of counts 2 and 4.  The jury also asked Wild J to reiterate the point that he had made that counts 2 and 4 rely on whether the accused pointed the gun, not the hit on the back of the head.  The Judge answered the questions as follows:

The essence of both counts 2 and 4 is the use or the threatened use by the two accused of firearms, of guns, that they had armed themselves with and took with them when they went to [the complainant’s] home.  The use by the accused of firearms which is relied upon by the Crown in counts 2 and 4, in Mr Waretini’s case, pointing his pistol at [the complainant’s] head in the manner described by [the complainant].  … In [the appellant’s] case it is pointing his gun into or at [the complainant’s] stomach, and/or holding his gun up to his chin or his mouth while demanding [the complainant’s] money.  ... To find [the appellant] guilty on count 4 you must satisfied that he pointed a gun that he had armed himself with and taken to the house into or at [the complainant’s] stomach and/or held it up in a threatening manner to his mouth while demanding [the complainant’s] money.  So again, you have to accept and be sure that [the complainaint’s] evidence about that is right and discard [the appellant’s] evidence. 

[12]     Against this background, the appellant submits that it was not open to the jury to reject the basis on which the Crown said the appellant had used a gun in one charge but then accept that the gun had been used in that way on another. 

[13]     The Crown response is that the evidence supports the guilty verdict.  The Crown says that the two counts became indistinguishable and the jury’s verdicts reflect what Mr Downs described as an “intuitive distaste for duplicity”.  The Crown also submits this is an illustration of the application of the principle in R v H [2000] 2 NZLR 581 at [27] (CA) that a guilty verdict which is apparently inconsistent with an acquittal might be held to be not “unreasonable” if:

[T]he innate sense of fairness and justice of the jury might properly have been applied in reaching a verdict of acquittal, for instance to avoid an unnecessary double conviction (King CJ in R v Kirkman, approved by the High Court of Australia in Mackenzie v R; see the related suggestion by Sir Francis Adams mentioned in Irvine).

[14]     The position here is, however, different factually from that in issue in R v H.  That case involved a number of representative counts of sexual offending over a lengthy period of time.  The appellant was convicted of four charges and acquitted of the other three.  The case focused on the not guilty and guilty verdicts in respect of the rape charges as well as the guilty verdicts on some closely associated counts.  The Crown accepted that there was no single fact in the evidence which clearly explained the differences in these verdicts.  The Court accepted the Crown submission that the answer lay “in the jury’s sense of justice.  The appellant faced two counts of rape only because of a law change; it may be that the jury concluded that two convictions was excessive” (at [18]).

[15]     Here, the factual basis for the elements of the two counts was exactly the same except that count 3 required proof of the additional element of intent to rob.

[16]     It is clear from the approach taken in the case that the appellant could only have been convicted of the armed assault with intent to rob charge if the jury was satisfied he had used his gun in the way encapsulated in the other count.  That is evident from the excerpts above from the summing up and from the Judge’s response to the jury questions.  In this respect, the case is on all fours with that of R v Yu and Zhang CA230/99 CA117/99 9 July 1999.  In that case the appellants were tried on one charge of conspiring to defraud a casino and three alternative charges of breaching the rules of an authorised game, namely Midi Baccarat, with intent to obtain pecuniary advantage for the appellant Mr Yu.  They were acquitted on a charge of conspiracy but found guilty on the three alternative charges of “cheating”.  This Court concluded at [28] that it was a “logical impossibility” for the jury to find the appellants not guilty of conspiring to cheat but nevertheless guilty of cheating.  That was because, as presented, the conspiracy charge depended for proof on acceptance by the jury that cheating as alleged or fraud of some similar type had actually occurred.  This Court said at [19]:

Without the evidence of the alleged cheating ... there was no evidence of conspiracy.  In the circumstances of the case, prosecuting for the alleged conspiracy, on the one hand, or for all any of the alleged specific acts of cheating on the other hand, were alternative options for the Crown to consider when framing the indictment, but were not appropriate alternative options for jury’s consideration.  The Crown should have opted to indict on count 1, and rely on the actual alleged cheating as proof of conspiracy, or to indict on counts 2, 3 and 4, and allege pre-concert as part of the case on those counts.  By proceeding on both the Crown risked either duplicitous verdicts, or, as occurred, irrationally inconsistent verdicts.

[17]     In our view, that observation applies equally to this case.  The guilty verdict is accordingly unreasonable. 

[18]     Mr Downs said that if the Court concludes that the verdict is unreasonable then, given the jury’s factual findings, it is difficult to see that a retrial is justified.  Given that approach, which we think is a realistic one, we make no order for a retrial.

Jurisdiction to appeal conviction prior to sentence being passed?

[19]     The Crown took issue with the ability of the Court to hear the appeal prior to sentence being passed.  It was accepted that neither s 383 (right of appeal against conviction or sentence) or s 388 (time for appealing) expressly preclude a conviction appeal being heard prior to sentence.  However, the Crown submission is that s 383 envisages that there will be an appeal only once, that is, there is no provision for successive appeals.  The submission is that the statutory scheme envisages a single instance for an appeal rather than successive appeals and that s 388 supports this view given that time does not commence until sentence has been passed where conviction and sentencing occur at different times.  It follows, the Crown says, that sentencing must first take place before an appellant can lodge any appeal within s 383 of the Act.  The Crown submits also that there are sound policy reasons for this approach.

[20]     Section 383 of the Crimes Act provides that any person “convicted” on indictment may appeal to the Court of Appeal against:

(a)       The conviction; or

(b)The sentence passed on the conviction (unless the sentence is one fixed by law); or

(c)       Both.

[21]     Section 388 states that:

(1)    Where a person convicted desires to appeal to the Court of Appeal against his conviction or sentence, or to obtain the leave of that Court so to appeal, or where the Solicitor-General desires to obtain the leave of the Court of Appeal to appeal against the sentence passed on the conviction of any person on indictment, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within 28 days after the date of conviction or (if the convicted person is not sentenced on the date of conviction) at any time after the conviction, but not later than 28 days after the date of sentence.

(2)    The time within which notice of appeal or notice of application for leave to appeal may be given may be extended at any time by the Court of Appeal.

[22]     The previous legislation, since the Criminal Appeal Act 1945, on its face envisaged successive appeals, for example, conviction first and then sentence (“and” was used instead of the present “or”).  Hence, in R v Wickliffe [1986] 1 NZLR 4 at 10, this Court observed:

It is settled in New Zealand that conviction and sentence are separate matters for the purposes of rights relating to appeal.  An application for leave to appeal against sentence under para (c) can be made separately from an appeal or an application for leave to appeal under para (a) or para (b), and vice versa: R v Banks [1950] NZLR 415; R v Ingram [1961] NZLR 777. As was emphasised in Ingram, however, if an application is out of time the Court has to be satisfied that there are good grounds for extending the time.

[23]     We accept the Crown submissions that there are sound policy reasons for not encouraging successive appeals and we envisage that the situation in which there will be two appeals will very much be the exception.  However, it would be surprising, absent clearer language, for the Court not to have the ability to deal with such an exceptional case.  By contrast, for example, s 115(3) of the Summary Proceedings Act 1957 states that “no appeal against conviction shall be brought until the person convicted has been sentenced or otherwise dealt with”.  To illustrate the possible exceptional case that might arise, take the situation where a person is convicted of rape and, prior to sentence, the complainant recants, saying that she was in fact overseas at the time and there is evidence to show that she was.  It would seem an odd result to require the Judge to go ahead and sentence to enable the appeal to proceed in such a case.

[24]     We accept that the present case is in the exceptional category.  The High Court Judge has specifically addressed the matter and would, but for the jurisdictional problem, have discharged the appellant under s 347.  We have therefore dealt with the appeal.

Result

[25]     For these reasons, the appeal is allowed.  The conviction is quashed and there is no order for a retrial.

Solicitors:

Armstrong, Barton, Wanganui for Appellant
Crown Law Office, Wellington