THE QUEEN v SHANE HEMI [1999] NZCA 142 (5 August 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca204/99

THE QUEEN

V

SHANE HEMI

Coram:	Gault J Thomas J Keith J
Judgment (ex parte):	5 August 1999

judgment of the court DELIVERED BY KEITH J

[1] The appellant was convicted of aggravated robbery by a jury in the District Court and sentenced to four years imprisonment. He now appeals against that conviction. The appellant was refused legal aid by the Registrar after consultation in accordance with the provisions of the Legal Services Act 1991. He was invited to make written submissions, and these have been taken into account in considering his appeal.

[2] The Crown case was that the appellant and another unidentified person entered a Hawera liquor store where one female attendant was working. Both offenders were wearing black balaclavas and one was carrying a knife. The Crown was unable to establish at trial whether it was the appellant who was carrying the knife. One of the offenders moved behind the counter, took the till keys and removed money from the till. Some alcohol was also taken. The total value of property taken was about $590.

[3] Several pieces of evidence connected the appellant to the offence. A panel van belonging to the appellant was seen in an area immediately adjacent to the scene of the robbery about 30-40 minutes prior to the offence. There was also evidence that the appellant had purchased CNG from a service station in Hawera earlier that day, and, being unable to pay for it, had provided his phone number as an assurance of future payment. The appellant also left Hawera that night and drove to Palmerston North by way of Patea and Wanganui.

[4] The main piece of evidence connecting the appellant to the offence was, however, the fingerprints, identified as his, that were found on a bottle of rum which was handled by both offenders and which had been opened and poured over the till and counter area.

[5] During the trial, counsel for the appellant applied to the Court for a discharge under s347 of the Crimes Act 1961. It was not disputed that the appellant owned the van seen parked near the scene of the robbery. Neither was it disputed that he had purchased fuel that day and been unable to pay for it, and that he had later driven to Palmerston North. It was submitted for the appellant, however, that although his fingerprints were found on the bottle of rum, the Crown was unable to establish whether they were placed on the bottle at the time of the robbery. The evidence of the Crown expert was that it was impossible to age fingerprints, and that they could last in that environment for months, or even a year. There was evidence that the appellant had been in the store on a number of previous occasions and that he may well have handled the bottle then. It was therefore submitted that there could not be proof to the requisite standard.

[6] The learned Judge considered the prosecution evidence and concluded that, while the Crown case was not strong, it could not be said that a jury could not convict or that any conclusion of guilty would be so unsafe as to render it proper to remove the question from the jury. This was not an appropriate case for the Court to exercise its s347 jurisdiction. The evidence was put to the jury and the appellant was found guilty.

[7] The appellant appears to put forward two related grounds of appeal:

[a] The learned District Court Judge erred in refusing the s347 application.

[b] The verdict of the jury was unreasonable and could not be supported having regard to the evidence.

[8] At the stage following conviction the issue in terms of s385 of the Crimes Act is whether the verdict of the jury was unreasonable or could not be supported having regard to the evidence. It is clear from the facts outlined above that there was evidence on which the jury could reasonably return a verdict of guilty. The evidence was such that the jury was entitled to be satisfied beyond reasonable doubt of the appellant's guilt.

[9] For these reasons the appeal is dismissed.