MAKITA v R [2005] NZCA 169 (27 June 2005)

Court of Appeal of New Zealand

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MAKITA v R [2005] NZCA 169 (27 June 2005)

Last Updated: 7 August 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA61/05

THE QUEEN



v



TERE JUNIOR MAKITA

Hearing: 22 June 2005

Court: Chambers, Potter and Doogue JJ

Counsel: D S Niven for Appellant
K Raftery for Crown

Judgment: 27 June 2005     

JUDGMENT OF THE COURT

Extension of time in which to appeal granted, but the appeal is dismissed.

REASONS

(Given by Doogue J)

Introduction

[1]	Tere Junior Makita was indicted along with three other men in respect of three aggravated robberies that occurred in central Auckland during the night of 25-26 October 2003. The appellant defended the charges against him. His co-accused all pleaded guilty prior to trial and two of them, Messrs Iaone and Pitcaithley, gave evidence in the trial of the appellant.
[2]	The appellant was acquitted by a jury in the District Court in respect of the first two aggravated robberies but convicted of the third. He now appeals against that conviction on the grounds that (a) the conviction is unreasonable and cannot be supported by the weight of evidence and (b) there has been a miscarriage of justice.
[3]	The essence of the submissions for the appellant was that the jury’s verdicts in acquitting the appellant of the first two robberies and convicting him of the third cannot be explained on any rational basis. It was said that in acquitting the appellant in respect of the first two robberies the jury had clearly rejected the Crown’s submission that there was a common intention entered into by the co-accused to commit the robberies. Accordingly, the only available verdict in respect of the third aggravated robbery was one of not guilty.
[4]	The Crown responded by submitting that there was a clear distinction in the appellant’s position in respect of the different offences. Thus, regardless of how the Crown pitched its case in respect of the aggravated robberies, the jury was entitled to find the appellant a party to the third aggravated robbery despite acquitting him in respect of the first two.

Background facts

[5]	The appellant and the other three men, Messrs Pitcaithley, Etuati and Iaone, were all charged with the first two aggravated robberies. The appellant and Messrs Pitcaithley and Etuati were charged with the third aggravated robbery.
[6]	On the night in question, the appellant had borrowed his mother’s car, although he himself did not drive it. Mr Pitcaithley did as he had a full licence. After the appellant and his co-accused had been to a party, they drove into the city. They stopped the car. The three co-accused got out and approached the victim and robbed him. The appellant remained in the car throughout the whole incident. There was evidence supportive of his position that he could not have seen what was taking place from where the car was parked.
[7]	However, before the first robbery, while still in the car, there was talk between the co-accused when there was reference to "standovers". More importantly, there was evidence from Mr Iaone that after the first robbery he supposed the appellant knew what the others got from that robbery. Mr Pitcaithley said that when the three men got back into the car after the first robbery they talked about what had happened and Mr Etuati said that he had "smashed someone for his wallet".
[8]	The second robbery again involved the other three co-accused. They surrounded the victim as he walked through a lane back to his car. Mr Etuati produced a knife and took the victim’s wallet. The three co-accused then returned to the appellant’s car. The appellant was some distance away when this incident took place. He was then picked up by his co-accused.
[9]	There was further discussion after that robbery. Mr Iaone said that Mr Etuati said "he just did another one, then he’d got $140". Mr Pitcaithley said that Mr Etuati "was boasting about how much money he had got, so we drove to Burger King and got a feed". The appellant thus benefited to that extent from the second robbery.
[10]	The third robbery involved Messrs Etuati and Pitcaithley as the active participants. There was some evidence from Mr Iaone that they got out of the car saying they were going to a toilet. However, Mr Pitcaithley said they drove down a side street leading into Queen Street. They parked and then walked back into the side street. There they accosted the victim and Mr Etuati took a bag from the victim while wielding a hammer. There was evidence that the hammer was in the car and apparently belonged to the appellant. After the robbery the victim chased after the two co-accused, to where he could see the number plate of the car. There was evidence that the appellant then sought to have the victim’s bag returned to him, but there were a variety of possible reasons for that, including the fact that the victim had identified the car.
[11]	There was some evidence from Mr Pitcaithley under cross-examination that at the time of the third robbery the appellant was in the front passenger seat of the car trying to sleep.
[12]	At the trial there was no dispute that the aggravated robberies had occurred. The issue was whether the appellant had been proven to be a party to the robberies carried out by his co-accused. Judge Field in summing-up to the jury made that clear and then gave the jury a direction in respect of how a person becomes a party to an offence in terms of s 66(1) Crimes Act 1961 that was unexceptional and is not criticised.
[13]	At the trial there was evidence of a videotaped interview in which the appellant denied that he was present in the car at the time of the offences. However, the evidence of his co-accused was damning in that respect.
[14]	It seems to be common ground that the Crown at trial also relied on s 66(2) Crimes Act 1961 in relation to the appellant, alleging that he was part of a common intention in respect of the offending. However, while the summing-up refers obliquely to that possibility, the direction in respect of parties related solely to s 66(1).
[15]	The jury asked three questions of the Judge after retiring. The first related to certain evidence. The second and third questions and the Judge’s answers, after discussing the questions with counsel, were as follows:

Is remaining in or not driving away a get away vehicle during the crime aiding in a crime? No.
When does passive behaviour during a crime become abetting? It only becomes abetting when the accused has been shown to have been a party to a prior agreement to commit the robberies. If the Crown has proved that he is a party to a prior agreement to commit the robberies, then his passive behaviour during the crime may become abetting.

[16]	Some would quibble about the answer to the second question as, depending on the circumstances, remaining in a getaway vehicle during a crime could amount to aiding in that crime. The answer given was, if anything, unduly favourable to the appellant. No point was taken about that answer, so we shall not discuss it further.
[17]	It is apparent from the answer to the third question that the Judge was, in the context of his summing-up, referring directly to s 66(1) Crimes Act 1961. It is not grammatically correct in that the passive behaviour is not of itself abetting but it was tailored to the jury’s question. There can be no doubt as to its meaning.
[18]	It should be noted that trial counsel for the appellant did not ask the Judge to make any other direction in respect of parties, either at the time of the summing-up or at the time of the answers to the questions.

Competing submissions

[19]	It is first submitted for the appellant that the Judge’s answer to the third question, while correct, reflected only a part of the discussion with counsel and may not have been complete enough to clarify the issues sufficiently for the jury. It is submitted that while the Crown position was outlined to the jury in the answer, the defence position (that there was no prior agreement and therefore passive behaviour does not become abetting) was not put. It is further submitted that there had been an acknowledgement by the Crown that the verdict on all three counts must be the same and that this was not outlined to the jury.
[20]	It is accordingly submitted for the appellant that the jury’s verdicts, in acquitting the appellant of the first two incidents and convicting him of involvement in the third incident, cannot be explained on any rational basis. The jury, in acquitting the appellant of the first two robberies, had clearly rejected the Crown submission that there was a common intention entered into by all four co-accused to commit robberies. Thus it is submitted that once that submission was rejected, the only available verdict in respect of the third aggravated robbery was one of not guilty.
[21]	There was an additional argument that, as the Crown case against each of the offenders was different, the theory of a common intention of the four accused in respect of all robberies could have no validity in any event.
[22]	The Crown position is that, regardless of the stance of trial counsel (not Mr Raftery), it was open to the jury to reach different verdicts on the different counts. The Judge in his summing-up had made that clear to the jury.
[23]	The Crown submitted the jury was entitled to find that the appellant was not party to a plan in respect of all the robberies, notwithstanding that the Crown case was otherwise. However, the Crown submitted the jury was also entitled to infer that the appellant knew what had gone on and what was going on before the third robbery. He had benefited from the proceeds of the second robbery by sharing a meal paid for by its proceeds. By allowing his car to continue to be used he was lending encouragement to his co-accused with clear knowledge of what was occurring. The hammer used in the third robbery appears to have been his. The only aspect of the evidence, in the Crown’s submission, contrary to that position is that the appellant had the idea of returning the bag to the victim of the third robbery. However, in the Crown’s submission it was open to the jury to accept that this was because the appellant feared that the victim of the third robbery would be able to identify his mother’s vehicle.
[24]	Thus, in the submission of the Crown, the verdicts are not necessarily inconsistent. They show that the jury accepted that the appellant was a party to the third robbery but was not so satisfied in relation to the first two. The rejection of a common intention in respect of all three robberies did not debar the jury from that approach. The Judge’s answers to the questions could not have misled the jury.

Comment

[25]	It is not really suggested that there was any error of law by the Judge. At the most it is suggested that he could have said something more favourable to the appellant in answering the final question. The Judge’s answers to the questions made clear to the jury that if there was no prior agreement, passive behaviour did not become abetting. The Judge was not required to go further than he did in answering the question, particularly when trial counsel for the appellant sought nothing further from him. If anything the answer was favourable to the appellant as passive behaviour can be active encouragement amounting to abetting in some cases even without any agreement: see R v Schriek [1997] 2 NZLR 139 at 149-150.
[26]	It did not follow that if the jury acquitted the appellant on the first two counts he could not be found guilty on the third count. Despite there being evidence that supported the Crown case against the appellant in respect of the first two robberies it was understandable that the jury should give the appellant the benefit of the doubt in respect of those robberies. He did not participate in and could not see the first. He was not about at the time of the second robbery. However, it was still open to the jury to find the appellant guilty of the third aggravated robbery in the way that it did.
[27]	The jury was entitled to infer that after the second robbery the appellant knew very well what was going on and was prepared to lend his car and hammer and presence for the purpose of further robberies. As a consequence it was open to the jury to hold that he was a party under s 66(1) to the third robbery. There is nothing unreasonable in such an approach and it could not be said to be contrary to the weight of the evidence.
[28]	As a result, the appellant’s conviction for the third aggravated robbery cannot be said to give rise to any miscarriage of justice.

Decision

[29]	Extension of time in which to appeal granted, but the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington