Waara v The Queen - [2010] NZCA 517

IN THE COURT OF APPEAL OF NEW ZEALAND
CA355/2010
[2010] NZCA 517
BETWEENANDREW RICHARD WAARA

Appellant

ANDTHE QUEEN

Respondent

Hearing:22 September 2010

Court:Harrison, Chisholm and Ronald Young JJ
Counsel:S J Gill for Appellant

M J Inwood for Respondent

Judgment:17 November 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal on both counts is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]        Andrew Waara appeals against his conviction following trial before Gendall J and a jury in the High Court at Wellington on 16 April 2010 on two counts of aggravated robbery. He does not appeal against his sentence of eight years’ imprisonment.
[2]        The circumstances of the two robberies were not in issue at trial. The sole question for determination was whether Mr Waara was a party to either or both of the robberies.
[3]        Mr Gill, who did not appear in the High Court, advanced these four grounds of appeal for Mr Waara. First, that Gendall J failed to put a critical plank of the defence case adequately in summing up to the jury; secondly, that the summing up was unbalanced and unfair; thirdly, that evidence relating to Mr Waara’s involvement with two modified sweatshirts should have been excluded; and fourth, that the Judge should have severed trial of the two counts.
[4]        We shall address each ground of appeal in the same order after first outlining the background facts. In this respect we have been assisted by the summaries provided by Mr Gill and Ms Inwood for the Crown.
Background
Silverstream robbery
[5]        At about 9.30 pm on 22 November 2008, two men robbed the Silverstream New World supermarket. Both were heavily disguised. Each was wearing gloves and a homemade balaclava, described by a witness as black and small with holes cut out for the eyes. One man was armed with a firearm. Cash amounting to $1760 and some tobacco was stolen.
[6]        The two robbers departed in a vehicle which had been stolen earlier that day from the North City Shopping Centre. The car was found abandoned outside a Stokes Valley address three days later. People were seen taking items from its boot. The police were called the next day and a parking notice issued by the shopping centre was found in the vehicle’s footwell. Mr Waara’s fingerprint was later detected on the notice.
[7]        In addition, a cellphone used by Mr Waara had stored these text messages sent from his cellphone before the robbery:
(a)An inquiry about “Dog, got a warm one?” followed by “Get Komar to drive”. On the police case, “a warm one” referred to a stolen vehicle and “Komar” was the nickname for Ben Autu, who was convicted of stealing the car.
(b)After Mr Waara directed another party to “Go to your place, we’ve got a car”. Shortly afterwards both Mr Waara’s phone and the receiving phone were poling at the same Stokes Valley cellphone site. After the getaway car was found in the same area.
(c)A few hours…

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.

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Details

Case: [2010] NZCA 517
Decision Date: 17 November 2010

CaseChat Overview and Summary

In the case of Waara v The Queen, Andrew Richard Waara appealed against his conviction for two counts of aggravated robbery. The Court of Appeal dismissed the appeal. The appeal raised four issues: whether the trial judge failed to adequately present a critical plank of the defence case, whether the summing up was unbalanced and unfair, whether evidence relating to certain sweatshirts should have been excluded, and whether the trial of the two counts should have been severed. The Court found that the summing up was fair and balanced, that the sweatshirt evidence was properly admitted, and that severance was not warranted. The Court held that while some comments made by the trial judge during the summing up were inappropriate, when considered in the context of the entire summing up, there was no unfairness or imbalance that could have led to a miscarriage of justice. The appeal was therefore dismissed and Waara's convictions were upheld.

Orders