Zacharius Rakena v The Queen - [2016] NZSC 137

IN THE SUPREME COURT OF NEW ZEALAND

SC 96/2016
[2016] NZSC 137

BETWEEN	ZACHARIUS RAKENA Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Arnold and OʼRegan JJ
Counsel:	I M Brookie for Applicant P D Marshall for Respondent
Judgment:	18 October 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Background

On 11 June 2015, after a jury trial, Mr Rakena was convicted of the aggravated robbery of an automobile parts and scrap metal business.
The Crown case against Mr Rakena was circumstantial. It was alleged that the offender’s physical characteristics resembled those of Mr Rakena. Track pants with Mr Rakena’s DNA and matching the description[1] of those worn during the robbery were found in a recycling bin on Mr Rakena’s property. The vehicle driven by the offender was similar[2] to that being driven by Mr Rakena around the time of the crime.[3]
[1]Black with two white stripes down the side and a white logo on the left thigh.
[2]The car Mr Rakena had access to was a silver Toyota (of the same make as that described by one of the victims as being driven by the offender). It belonged to his girlfriend and had a registration number that differed by the first letter (E rather than F) to that recorded by one of the victims.
[3]According to the evidence of Mr Rakena’s girlfriend. By contrast, Mr Rakena’s father’s evidence was that his son was working with him at around the relevant time. It was an agreed fact that Mr Rakena was seen driving the vehicle in Onehunga earlier on the day of the robbery.
Mr Rakena’s appeal against conviction was dismissed on 27 July 2016.[4] He applies for leave to appeal against that decision.

Course of the trial

[4]Rakena v R [2016] NZCA 357 (Randerson, Fogarty and Collins JJ).

The trial began on 8 June 2015. On 10 June at 12.43 pm the jury retired to consider its verdict. It returned at 3.28 pm to deliver a verdict. Although the foreperson indicated that the jury were unanimous, one member of the jury shook his head.
Instead of taking the verdict the trial judge, Judge Paul, asked the jury to retire. The matter was discussed with counsel and it was agreed that each juror would be asked if he or she agreed with the verdict. Two said they were not in agreement and one was unsure.
The Judge asked the jury to return to the jury room. Defence counsel’s application to discharge the jury was unsuccessful, as was the renewed application the following day.
At 4.19 pm the jury was given a standard Papadopoulos direction[5] and shortly after 5.00 pm the jury was sent home. Deliberations resumed the following day and at 2.20 pm the jury advised that there was a unanimous verdict. The jury provided a note to the Judge, which included the following question:
If we deliver a verdict – will we have to individually stand up and acknowledge the verdict? One…

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: [2016] NZSC 137
Decision Date: 18 October 2016

CaseChat Overview and Summary

Zacharius Rakena sought leave to appeal against his conviction for aggravated robbery, following a trial where the jury initially appeared divided. The Supreme Court of New Zealand, comprising Glazebrook, Arnold, and O'Regan JJ, considered Rakena's application on the basis of four grounds: the reasonableness of the jury's verdict, the judge's decision not to discharge the jury, the appropriateness of giving a Papadopoulos direction, and the failure to poll the jury after the verdict. The Court of Appeal had previously dismissed Rakena's appeal against conviction, finding that the evidence was sufficient to support the verdict. The Supreme Court examined each ground of appeal, finding that while there were some concerns regarding the procedures followed by the trial judge, there was no evidence suggesting a miscarriage of justice.

The Supreme Court found that the jury's verdict, though initially appearing divided, was ultimately unanimous and supported by sufficient evidence. The Court did not accept that the judge's decision not to discharge the jury or to give a Papadopoulos direction had prejudiced the fairness of the trial. Additionally, the Court determined that there was no risk of a miscarriage of justice in not polling the jury after the verdict, given that there was no indication of disagreement at the time of the verdict. The Supreme Court concluded that the issues raised were specific to the circumstances of this case and did not demonstrate a risk of a miscarriage of justice. Therefore, the application for leave to appeal was dismissed.

Orders