R v Pavitt CA257/04 [2004] NZCA 356 (21 October 2004)

Last Updated: 22 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA257/04

THE QUEEN

v

BERNARD PAVITT

Hearing: 18 October 2004 Coram: McGrath J
Potter J
Rodney Hansen J

Appearances: C B Hirschfeld for Appellant
H D M Lawry for Crown Judgment: 21 October 2004

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

Introduction

[1] The appellant was convicted on one count of aggravated robbery after a jury trial in the Auckland District Court. He was sentenced to two years imprisonment. Leave was granted to apply for home detention. He appeals against his conviction on the ground of misdirection by the Judge in response to a question asked by the jury in the course of the trial.

R V PAVITT CA CA257/04 [21 October 2004]

Background

[2] The appellant was originally charged with three others, two of whom pleaded guilty before depositions, to the lesser charge of demanding with menaces. The appellant and the third person (a woman called Selska) were tried together. Selska (who was charged as a secondary party) was discharged in respect of this offending pursuant to s 347 of the Crimes Act at the conclusion of the Crown case.

[3] The evidence against the appellant was that, on 13 September 2002, he and two other men (those who pleaded guilty) went to a house in Henderson. One, who was armed with a knife, guarded the door while the appellant and the third man entered the house. After disabling the telephone and threatening the occupant, they removed a number of household and personal effects which were loaded into a trailer and taken away. The appellant’s explanation for his actions was that the victim had not repaid money she owed Selska.

[4] In the course of the trial, the jury asked what happened to the two other men who accompanied him to the house. After hearing counsel as to the appropriate response, the Judge told the jury merely that the other two men had been charged. She made further reference to the issue in the course of her summing up.

Ground of appeal

[5] Mr Hirschfeld argued that the Judge should not have told the jury that the two associates had been charged; that the accused was prejudiced as a result; and that his conviction should be set aside. He submitted that the Judge should have simply informed jurors that they should not be concerned about what had happened to the other two men. He contended that the advice to the jury unfairly added to the prosecution case and “undermined the presumption of innocence”.

Decision

[6] We are satisfied that the response of the Judge to the jury’s question was entirely appropriate. It was understandable that the jury should be curious to know what had happened to the other two men. We consider jurors, having raised the matter, were entitled to know that, like the appellant, they had faced charges. Otherwise, they may have been distracted by speculation as to whether the others had been charged and, if not, why not.

[7] We can see no prejudice to the accused in the answer given to the jury. It did no more than reassure the jury that all three principal offenders had been treated the same. It did not in any way add to the case against the appellant.

[8] When referring to the issue in the course of her summing up, the Judge stressed that, while jurors would need to consider the conduct of the other two men, their focus should be on the actions of the appellant. That advice was appropriate and would have ensured that the jury would not be distracted from its task by a concern with the fate of the accused’s associates.

[9] We can find no risk of the Judge’s answer causing a miscarriage of justice.

Result

[10] The appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland