Ropiha v R
| Jurisdiction | New Zealand |
| Judge | Clifford J |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2014] NZCA 633 |
| Docket Number | CA401/2014 |
| Court | Court of Appeal |
| Date | 19 December 2014 |
[2014] NZCA 633
French, Asher and Clifford JJ
CA401/2014
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction — appellant was charged with assault with intent to injure and elected trial by jury — a charge of common assault was included — an assault had to be established before assault with intent to injure could be established — judge elected to leave the included charge to the jury — note from jury reported that it was stalemated at 10:2 in favour of conviction on common assault — judge issued Papadopoulos direction and a majority verdict direction when responding to jury's note — whether leaving the common assault charge to the jury created a risk of diverting their attention from the key issue of whether the assault had occurred in the way alleged — whether the judge's decision to provide the Papadopoulos and majority verdict directions at the same time had placed illegitimate pressure on the jury to return an unsafe compromise verdict.
N P Chisnall and M J Inwood for Appellant
J E Mildenhall for Respondent
The appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Clifford J)
The appellant, Grant Teotinga Ropiha, was charged with assault with intent to injure and elected trial by jury. At the conclusion of the Crown case, Judge Rea discussed with counsel whether a charge of common assault, which as a matter of law is included in a charge of assault with intent to injure, should also be left to the jury. The Crown concurred, but counsel for Mr Ropiha disagreed. The Judge nevertheless decided that in the circumstances that was the appropriate course of action, and directed the jury accordingly.
The jury returned a guilty verdict on the charge of common assault (the included charge) and a not guilty verdict on the charge of assault with intent to injure. Judge Rea sentenced Mr Ropiha to 175 hours' community work and nine months' supervision. 1
Mr Ropiha now appeals against his conviction, principally on the basis that a miscarriage of justice resulted from the Judge's decision to leave the included charge to the jury. Mr Ropiha also says that the Judge's action in providing the jury with a Papadopoulos direction at the same time as he provided them with a majority verdict direction further contributed to the likelihood of miscarriage. 2
Mr Ropiha was charged with assaulting the 19 year old daughter (T) of his then partner (P). At the relevant time, P and T were continuing an ongoing argument based on P's disapproval of T's association with gang members and the fact that T did not contribute to the upkeep of the household. According to T, P and T had been shouting at each other for about an hour and a half, and had continued to do so when P went to have a shower. T's evidence was that at that point Mr Ropiha had come into the kitchen, where she was washing the dishes, and they had exchanged insults. T said Mr Ropiha then punched her to the right side of her jaw. She remonstrated with him and he punched her twice more, kicked her in the knee and, when she dropped to the ground, kicked her a further four times.
P did not witness the assault, but gave evidence that after she left the shower she found Mr Ropiha standing over T in the kitchen. T was yelling at Mr Ropiha that he did not pay rent and had no right to hit her, and he was responding with further insults.
P conceded that her arguments with T sometimes became physical, and that she had elbowed her daughter in the face about a week before the alleged assault. After the incident, P had initially told the police the assault had not occurred, and
Mr Ropiha did not give evidence. In his DVD interview, which was played at trial, he said the allegation was a fabrication by T. He said that T and her mother had been arguing, that T had threatened to get a softball bat and hit her mother and that he had left the house with P to get away from the argument.
In her cross-examination of T and P, and in her closing address to the jury, Mr Ropiha's counsel focussed on the proposition that T had fabricated her narrative because she wanted her mother to break up with Mr Ropiha.
After the Crown had completed its case, the Judge discussed a number of issues with counsel. In that discussion he raised the question of the included offence. He referred to the fact that counsel for Mr Ropiha had told the jury in her opening address that they needed to be satisfied on three points: first, that there had been an assault; second, that it was Mr Ropiha who had committed that assault; and third, that he had done so with intent to injure. By opening in that way defence counsel had, the Judge said, put the question of common assault very much in issue.
Mr Ropiha's counsel opposed the included charge being left on the basis that it could distract the jury. She argued that if the jury were not satisfied on the charge of assault with intent to injure, but felt they should bring in some verdict, they might illegitimately find Mr Ropiha guilty of the included charge of common assault.
The Judge concluded that it was appropriate for the included charge to be left, and referred again to the defence opening.
In his summing-up the Judge directed the jury on the included charge in the following terms:
Well what would happen if you got to that situation? What would happen if you as the jury were going through this and you said, “Yes we are sure that it was Mr Ropiha who punched [T] in the head? We don't think it didn't happen. We don't think it was Mum who did it we are sure that he is the one that punched her but when we look at it we can't be sure of what he was intending to do at the time” so in other words two of the things – it was him, he did assault – had been proved but the third one, what his intention was, the Crown haven't proved it. Well if you reach that situation Mr Foreman, when, as I will explain to you when you deliver your verdict, the answer is that you would find him not guilty on this charge but guilty of common assault. That common assault is included in the charge because an assault has to be established before assault with intent to injure can be established so if you go through it and you're sure that yes Mr Ropiha has deliberately punched [T] but we cannot be sure that he intended to injure her then he would be not guilty of the charge he faces but he would be guilty of common assault and I'll explain that again at the very end of my summing up to you.
At the very end of his summing-up, the Judge explained the point again in the following way:
There are three possible verdicts – not guilty, guilty and not guilty of the current charge but guilty of assault, so Mr Foreman, you will then be asked when we are told that the jury is unanimous on the charge, “Do you find the accused guilty or not guilty?” If you find him guilty as charged, in other words of assault with intent to injure you just say, “Guilty.” If you find him not guilty completely you just say, “Not guilty.” However, in the event that you find him guilty of assault but not of the current charge you simply say, “Not guilty of the current charge but guilty of assault.” Now that is the way it will be approached and the verdict given by the foreperson of the jury will be accepted by me as the verdict of all of the jury.
This was a very short trial. The evidence was completed by lunchtime, and the jury retired at 3.40 pm. They went home at 5.00 pm. They returned the next morning at 9.30 am. At 12.10 pm that day they passed the following written question to the Judge:
We have not reached agreement on the main charge. 10 for Common Assault agreed.
2 for Not Guilty.
The Issue is photographic evidence and believability of the primary witness What do we do from here?
The jury had, by that time, been deliberating for just over four hours. The Judge discussed the note with counsel, without disclosing the jury's position. He then addressed the jury, with Crown and defence concurrence, first in Papadopoulos terms, and then as to the fact that they were now in a position to give a majority verdict.
The jury retired and went to lunch at 12.30 pm. They returned their majority verdict at 2.15 pm.
In arguing the appeal, Mr Chisnall acknowledged that cases in this area usually involve a challenge by a defendant to a judge's decision not to leave a lesser included charge to the jury. Those cases have established the general principle that the underlying issue is the need for there to be a fair trial from the defendant's perspective. Mr Chisnall submitted that it is rare for a judge to decide on his or her own volition to leave an included charge. He did not, however, argue that Mr Ropiha's defence would have been conducted in any other way if the included charge had been shown on the charging document. His submission was that leaving the common assault charge to the jury created a real risk of diverting their attention from the key issue, which was whether the assault had occurred in the way T alleged.
Mr Chisnall submitted that the difficulty was compounded by the Judge's response to the jury's question. Although he had done so with the agreement of counsel, the Judge's decision to provide the Papadopoulos and majority verdict directions at the same time engaged the risk recognised by the Supreme Court in Hastie v R, that the combination would put illegitimate pressure on the jury to return a compromise verdict, one which would therefore not be safe. 3
The Crown referred us to the...
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Jesse-James Winter v R
...to wounding with intent to cause grievous bodily harm. 131 Finally, to complete this survey of the New Zealand authorities, we note that in Ropiha v R, the Court of Appeal dismissed an appeal against conviction which was brought primarily on the basis that a miscarriage of justice had occur......