Robin v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeArnold J
Judgment Date26 Jul 2013
Neutral Citation[2013] NZCA 330
Docket NumberCA187/2012 CA220/2012 CA267/2012

[2013] NZCA 330

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Arnold, Heath and Keane JJ

CA187/2012

CA214/2012

CA220/2012

CA267/2012

Between
Jason Karauria Robin
First Appellant
and
The Queen
Respondent
And Between
Tangaroa Watene Parekura Gray
Second Appellant
and
The Queen
Respondent
And Between
Samuel Pearson
Third Appellant
and
The Queen
Respondent
And Between
Beck Eden Gray
Fourth Appellant
and
The Queen
Respondent
Counsel:

A M Simperingham for Appellant Robin

J G Krebs for Appellant Tangaroa Gray

N H Wright for Appellant Pearson

D J Sharp for Appellant Beck Gray

S B Manning for Respondent

Appeal against conviction and application to adduce further evidence by one of appellants, (“G”) — appeals against sentence by all appellants — appellants were convicted on counts of wounding with intent to cause grievous bodily harm — Crown alleged the attack on the two victims was gang-related — in appeal against conviction, G contended that: deficiencies in identification evidence resulted in an insufficient basis for a finding of guilt; that the Judge had failed in summing up to draw attention to the weakness of the identification evidence or to give a sufficient warning in terms of s126(1) and (2) Evidence Act 2006 (“EA”) (judicial warnings about identification evidence); and there was now important evidence available from a co-offender that was not available at the trial — one of appellants (R) had been resentenced after judge had retired when Crown counsel had suggested in chambers that the judge had imposed a sentence that had been inconsistent with the other sentences — whether any grounds for G's appeal against conviction and application to adduce further evidence had been made out — whether imposed sentences had been appropriately discounted — whether the judge had been functus officio when he re-sentenced R.

Held: The approach to be adopted in relation to an alleged unreasonable verdict was settled by the Supreme Court in R v Owens and a verdict would be unreasonable where it was one that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt.

The matters raised in argument were all matters which were vigorously explored at trial by way of cross-examination and in respect of which detailed submissions were made to the jury. There was no dispute that G was present at the property when the victims arrived, the question was whether he had left before the attack commenced or had participated in the attack and then left. The jury's verdicts indicated that they were satisfied that, taken as a whole, the evidence established beyond reasonable doubt that G had participated in the attack on one victim, but not were not satisfied to that standard that he had participated in the attack on the other victim. Clearly then, the jury were careful to isolate and consider the evidence going to each charge. Against this background there was no basis for concluding that there had been a miscarriage of justice on the ground that the jury's verdict was unreasonable.

No miscarriage of justice arose by virtue of any inadequacy in the Judge's instructions. An identification warning which simply repeated the propositions in s126(1) and (2) Evidence Act 2006 (“EA”) (judicial warnings about identification evidence) might not necessarily be sufficient and such warnings should be tailored to the needs of the particular case. As the section itself recognised, no particular form of words was necessary. While the judge should identify the factual features that supported or diminished the probative value of the identification in the particular case, the judge was not obliged to repeat all the points about identification that defence counsel had made.

In this case the warning given by the Judge and the way in which he dealt with the evidence given by key witnesses was sufficient to bring home to the jury the issues associated with the identification evidence in this case. There was no doubt that the jury fully understood both that the identifications were challenged and the basis of the challenges.

The Judge specifically drew attention to the issues of intoxication, bias and inconsistency. What the Judge said in his summing up and additional remarks about G's case, was sufficient to put the defence fairly to the jury.

The principles applicable to the admission of a co-accused's affidavit evidence after trial were well settled ( R v Saggers). Section 73(2)(a) EA (compellability of defendants and associated defendants in criminal proceedings) contemplated that an “associated defendant” would be a compellable witness where he or she was tried separately from the accused. There was no suggestion that any application for severance was made to allow G to call R and moreover there was reason to doubt R's veracity (or reliability) on this point. It was not appropriate to admit R's affidavit.

In terms of the sentences imposed, in general a greater adjustment to the adopted starting points needed to be made to reflect provocation and excessive self-defence. Provocation and excessive self-defence would lead to lower starting points for this type of offending ( R v Taueki). Both factors were present in this case. First, the actions of the victims in coming on to the property were undoubtedly provocative. They were a form of home invasion. Secondly, it was reasonable that, initially at least, the appellants would have feared that the victims and their associates were intending violence against them. However, because the victims were quickly subdued and their associates retreated, the serious violence that followed was unjustified and excessive.

While it was generally true that once a judge had delivered the decision and reasons he or she was functus officio, it was possible at common law for a sentencing judge to correct a sentence before it had “passed into record”. This case was unusual in terms of the nature of the error made by the Judge (inconsistency), but that did not alter the principle. The Judge therefore had jurisdiction to re-sentence R in this case, but consistently with the other appellants, R was entitled to greater discounts than he received.

G's appeal against conviction and application to adduce further evidence dismissed. Appeals against sentence allowed.

JUDGMENT OF THE COURT

A CA187/2012:

Jason Robin's appeal against sentence is allowed. His sentence of nine years' imprisonment is quashed and a sentence of seven years, six months' imprisonment is substituted.

B CA214/2012:

Tangaroa Gray's appeal against sentence is allowed. His sentence of four years, six months' imprisonment is quashed and a sentence of three years, six months' imprisonment is substituted.

C CA220/2012:

Samuel Pearson's appeal against sentence is allowed. His sentence of seven years, nine months' imprisonment is quashed and a sentence of six years, four months' imprisonment is substituted.

D CA267/2012:

In relation to Beck Gray:

(a) His application for an extension of time to appeal is granted.

(b) His application to adduce further evidence is dismissed.

(c) His appeal against conviction is dismissed.

(d) His appeal against sentence is allowed. The sentence of nine years' imprisonment is quashed and a sentence of seven years, six months' imprisonment is substituted.

REASONS OF THE COURT

(Given by Arnold J)

Table of contents

Para No

Introduction

[1]

A brief background

[2]

Mr Beck Gray's conviction appeal

[6]

Unreasonable verdict?

[11]

The trial Judge's instructions

[27]

(i) Identification

[29]

(ii) Failure to put defence adequately

[40]

(iii) Self-defence

[44]

Application to admit new evidence

[49]

The sentence appeals

[60]

Mr Tangaroa Gray

[67]

Mr Beck Gray

[73]

Mr Jason Robin

[75]

Mr Samuel Pearson

[80]

Decision

[82]

Introduction
1

The appellants were charged with two counts of wounding with intent to cause grievous bodily harm, each count involving a different victim, namely Messrs Roger and Nicodemus Te Puni (counts one and two respectively). Mr Pearson entered pleas of guilty to both counts on the morning of trial and was sentenced to seven years, nine months' imprisonment. 1 Following a jury trial before Judge Wilson QC: 2

  • (a) Mr Robin was convicted on both counts and was sentenced to imprisonment for nine years;

  • (b) Mr Tangaroa Gray was convicted on count one and acquitted on count two. He was sentenced to imprisonment for four years, six months; and

  • (c) Mr Beck Gray was convicted on count one and acquitted on count two. He was sentenced to imprisonment for nine years.

Mr Beck Gray now appeals against both conviction and sentence, and the remaining appellants against sentence only. 3 (There was one further offender, Mr Rakairoa Gray, who was convicted on count one and sentenced to seven years' imprisonment. He has not appealed.) Mr Beck Gray's appeal was filed out of time, so he requires an extension of time to appeal. There being no objection, we extend time.

A brief background
2

The appellants are patched members of the Black Power gang. One of the victims, Mr Roger Te Puni, is a patched member of the Mongrel Mob. The Crown alleged that the attack on the two victims was gang-related.

3

On 17 December 2010, Messrs Robin and Tangaroa Gray were out drinking with Mr Samuel Pearson. Having run out of alcohol and purchased further supplies, the trio went to Mr Pearson's home, where Mr Beck Gray was child-minding. Sometime after, while driving past Mr Pearson's house, one of the victims, Mr Roger Te Puni, was verbally abused by people on the property. There was an exchange of words and hand signals and possibly something was thrown at Mr Roger Te Puni's car. Mr Te Puni slowed down, but then drove off to gather together some associates and return to confront the group on the property.

4

Mr Te Puni...

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