Rophia v R [2014] NZCA 633 (19 December 2014)

Last Updated: 13 January 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA401/2014 [2014] NZCA 633
BETWEEN	GRANT TEOTINGA ROPIHA Appellant
AND	THE QUEEN Respondent

Hearing:	18 November 2014
Court:	French, Asher and Clifford JJ
Counsel:	N P Chisnall and M J Inwood for Appellant J E Mildenhall for Respondent
Judgment:	19 December 2014 at 2.15 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] 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.
[2] 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]
[3] 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]

Facts

[4] 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.
[5] 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.
[6] 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 then later that she had been the assailant. She subsequently made the statement that her evidence at trial reflected. Her explanation for the change was that she had been prepared at the earlier stage to lie for Mr Ropiha.
[7] 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.
[8] 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.

The included charge

[9] 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.
[10] 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.
[11] The Judge concluded that it was appropriate for the included charge to be left, and referred again to the defence opening.
[12] 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.

[13] 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.

[14] 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?

[15] 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.
[16] The jury retired and went to lunch at 12.30 pm. They returned their majority verdict at 2.15 pm.

Appeal

[17] 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.
[18] 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]
[19] The Crown referred us to the decision of this Court in R v Mokaraka, where it was held that before an included charge is left to the jury there must be a live issue as to whether no more than the elements of the lesser charge will be proved.^[4] The Crown submitted that in the present case that threshold requirement was satisfied. The Crown further submitted that there was no indication of prejudice to the defence, in terms of the way its case had been conducted, arising from leaving the alternative charge. Whilst the Supreme Court in Hastie had said that it considered it would be rare for a Papadopoulos direction to be given at the same time as a majority verdict direction,^[5] it had also recognised that the trial judge was uniquely placed to make such a decision.^[6]
[20] Ms Mildenhall helpfully drew our attention to the decision of the English Court of Appeal in R v Lahaye.^[7] As in the present case, the appeal ground in Lahaye was that a lesser included offence, on which the appellant had been found guilty, should not have been left to the jury. The Court upheld the trial Judge’s decision, which had been made to ensure that there was a fair trial from all perspectives. Ms Mildenhall submitted we should do so here as well.

Analysis

The included charge

[21] Mr Ropiha’s prosecution was commenced by way of charging documents filed on 23 December 2013, after the commencement of the second stage of the Criminal Procedure Act 2011. This appeal is therefore to be determined under pt 6 of that Act.
[22] Section 143 of the Criminal Procedure Act provides, in terms not materially different to its antecedent under the Crimes Act 1961,^[8] as follows:

143 Included offences

If the commission of the offence alleged (as described in the enactment creating the offence or in the charge) includes the commission of any other offence, the defendant may be convicted of that other offence if it is proved, even if the whole offence in the charge is not proved.

[23] As Mr Chisnall acknowledged, cases in this area generally involve a challenge by a defendant to a trial judge’s decision not to leave a lesser included charge to the jury. In fact, Mr Chisnall has not been able to find any case similar to this appeal. Ms Mildenhall confirmed that the decision of the English Court of Appeal in Lahaye was the only such case her research had uncovered.
[24] In R v Mokaraka, this Court addressed the principles guiding a judge’s discretion as to whether to put an included offence to the jury. Those principles were
subsequently summarised by this Court in R v McDonald in the following terms:^[9]

• (a) The mere fact that an included charge is possible does not mean it must be put to the jury. It is a matter of discretion for the trial judge;
• (b) There must be a live issue as to whether no more than the elements of the lesser charge will be proved. This is a threshold question. The jury must be squarely confronted with the possibility that all of the elements of the lesser charge are proved on the evidence without any of the elements of the principal charge;
• (c) Once this inquiry is cleared, the following circumstances tell against putting the included charge: the lesser charge is trifling whereas the principal charge is very serious such that the lesser charge could distract the jury; the question of included charges is raised too late in proceedings such that prejudice results to one party in the way the trial is conducted; the inclusion of the lesser charge provides a pretext for the jury softening its verdict where, if it discharged its duty, it could only find the accused guilty on the principal charge or not guilty;
• (d) The judge's discretion to put the included charge is broad. An appellate court will not intervene unless it is satisfied that the jury may have convicted the accused out of reluctance to see him or her “get away” with disgraceful conduct.

[25] On the particular question of a judge determining to include a charge on his or her own initiative, this Court in Mokaraka, with reference to the limited circumstances in which it considered an appellate court would intervene, said:

[19] It follows from the last point that there may be cases – we think few – in which the trial judge will need to take the initiative. It may not always be sufficient to wait for an application by counsel, whether for the Crown or the defence, particularly if the jury itself has raised the possibility of a lesser alternative. In some circumstances a jury inquiry of that kind might be regarded as an indication that the jurors would be reluctant to acquit an accused whom they see as clearly guilty of a lesser offence. The trial Judge will then need to give serious consideration to an included charge or, depending upon the circumstances, a warning along the lines mentioned.

[26] As those passages show, and as discussed by the High Court of Australia in James v R, the issue for a trial judge is normally to balance the choice made by the prosecutor to frame a charging document in a particular way, and the fair trial interest (from the defendant’s perspective) of leaving the jury with the included charge where it is properly available.^[10] We think it is in that context that this Court’s observation in Mokaraka that there will be few cases in which the trial judge will need to take the initiative is to be understood. Normally the initiative will be taken by the defence. Here the issue arose in a different way. Given that, we think the decision of the English Court of Appeal in Lahaye is of considerable assistance.
[27] In that case, the appellant had been charged on indictment with a single count alleging wounding with intent to cause grievous bodily harm. He was convicted of wounding. The appellant had, shortly before the incident as a result of which he faced charges, been stabbed by his victim. The next day the appellant and his victim came across each other again. There was an altercation in the course of which the victim suffered three stab wounds, one of which just missed the heart. The prosecution case was that the appellant had deliberately stabbed his victim in revenge. The defence case was that the appellant had acted in self-defence and that the knife originally wielded by his victim had somehow come to be in the appellant’s hand and the victim had fallen onto it.
[28] The Court of Appeal said this of the defence case:

[6] On this brief summary of his case, as it seems to us, issues of self-defence and accident arose. Importantly, it was plain from his evidence that, whatever else he was saying, he was saying that he had no intention that [the victim] should suffer any harm, let alone really serious bodily harm. He called a number of witnesses to give evidence on his behalf. It is unnecessary for the purpose of understanding the issue in this appeal to recite that evidence.

[29] The question of the included charge was raised by the defence at the close of evidence, defence counsel taking the position that the lesser charge should not be left to the jury. The Crown’s case was, he submitted, “a [wounding with intent] or nothing, as it were”.
[30] The Court of Appeal described the position, as between the Crown and defence on the question of leaving the included charge, in the following terms:

[8] ... The judge rightly understood that the Crown’s purpose was to seek to avoid what in the Crown’s view would have been an inappropriate verdict of wounding ... To leave that option to the jury would decrease the prospect of what the Crown believed would be an appropriate conviction [for wounding with intent]. At the same time, as it seems to us, the defence were not anxious for [wounding] to be left to the jury because that might reduce the prospect of an acquittal overall. In short, there were tactical considerations afoot. No issue of principle was involved. We understand the forensic positions being taken by each side.

[31] We acknowledge, in that context, that at trial counsel for Mr Ropiha took a different approach, reflecting that argued by Mr Chisnall in this appeal.
[32] Section 6(3) of the Criminal Law Act 1967 (UK) was the relevant provision in Lahaye. It provides, in very similar terms to s 143 of the Criminal Procedure Act, that:

(3) Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

[33] The Court of Appeal said:

[17] The proper operation of the powers granted by section 6(3) requires that, like any other aspect of the trial process, the defendant should not be unfairly prejudiced. In this particular context the principle would normally be contravened if the defendant were suddenly to find himself facing an allegation not previously advanced nor even contemplated, and deprived of a sufficient opportunity to prepare and present his defence to the lesser charge.

[34] Applying those principles, the Court of Appeal could see no prejudice to the appellant. As here, it was not suggested that the defence case would have been conducted any differently if the included count had been recorded on the indictment. Also as here, defence counsel in closing his case to the jury knew that the included charge would be left by the Judge. On that basis, the appeal was dismissed.
[35] We take a similar approach here. From the outset, and not in any way controversially, the jury had been made aware of the need to find that Mr Ropiha assaulted the victim as a necessary element of the conviction on the charge of assault with intent. The defence case was that the charge was based on fabricated evidence, and there had been no assault at all. In these circumstances, we cannot see any risk of prejudice or unfairness to Mr Ropiha in the Judge’s decision.

The sequential Papadopoulos and majority verdict directions

[36] As the Supreme Court in Hastie acknowledged was standard practice, Judge Rea briefly mentioned the possibility of a majority verdict in his summing-up.^[11] He said:

Those of you who keep up with your current affairs or you may have encountered this in a jury before there comes a time when the Court is able to accept a majority verdict of 11 to one. That doesn’t apply to you as you start out on your deliberations so please work on the basis that whatever the verdict is, whether it is not guilty, whether it is guilty as charged or whether it is guilty of assault, all 12 of you must be agreed on what the verdict is.

[37] In responding to the jury question set out above at [14], the Judge first gave the jury a Papadopoulos direction in the following terms:

[1] Mr Foreman, ladies and gentlemen, I have your question. I do not intend to read it out because you have included in it some numbers which I will retain to myself rather than let anyone else know about, but there are two separate things that I intend to do now and that is to give you particular directions in relation to the case. The first is that having been advised that you have not been able to reach a unanimous verdict so far, obviously that happens from time to time and it is no reflection on anyone. I have got certain powers available to me and I intend to use one of them in a minute to see whether further progress can be made. Judges obviously are always hesitant about discharging a jury because it usually means that the case has to be tried again in front of another jury and experience has shown us that often a jury is able to agree in the end if they are given a bit more time.

[2] Each of you has sworn or affirmed that you will try the case to the best of your ability and give your verdict according to the evidence. It is important that you do your best to accept that responsibility and not pass it to another jury. You are here as representatives of the community with a responsibility on behalf of the community, to try and reach a collective decision of all of you and one of the strengths of the jury system is that each of you takes into the jury room your own individual experience and wisdom and you are expected to judge the evidence fairly and impartially on that basis. You are expected to pool your views of the evidence and you have a duty to listen to each other carefully. Remember that a view honestly held can equally honestly be changed. So within the oath or affirmation that you have taken there is scope for discussion, argument and listening with an open mind to the opinion of others. That is often the way in the end that agreement is reached.

[3] Obviously if you reach the stage where you are unable to agree, then you will let me know, but it is important that you have an additional opportunity to consider the matter in light of what I have just said to you.

[38] The Judge then directed the jury that sufficient time had passed so that they could, if they were able to, return a verdict of 11 to one. He said:

[4] The other direction that I am able to give you now is what is called the majority verdict direction. I indicated to you that in certain circumstances it is possible for you to have a verdict of 11 to one. There are certain time limits on that and that time limit has now passed so you are in a situation where if you wish to, you could return a verdict of 11 to one. Now there is one requirement about that, however, before you return a verdict of 11 to one as a group, you must all be agreed that it is not probable that you are going to be unanimous. In other words, you have got to agree that no, we are not going to deal with this unanimously, it will be by majority of 11 to one. This requirement is so important that your foreperson will be asked to confirm that as a group you are of the view that you are unlikely to achieve a verdict with all 12 of you. You should keep trying to achieve that until you are agreed that it is not likely to happen, and then when you reach that stage we can accept the verdict of 11 to one.

[39] Given the relative brevity of the trial and the terms of the jury’s question, we do not think, taken individually, there is anything in either of those two directions that can be criticised. Mr Chisnall did not suggest otherwise. The only issue here is whether giving the directions together was improper and created a real risk of miscarriage.
[40] In Hastie, a jury that had been retired for a little over 10 hours sent the trial Judge a note saying they were unanimous on two counts, but were stalemated at nine to three on the other six counts. They said they were unsure as to how they should proceed and asked for directions. In response, the Judge gave the jury a majority verdict direction. Within 30 minutes the jury returned with not guilty verdicts on the two counts and majority guilty verdicts on the other six counts.
[41] Mr Hastie challenged his conviction based on the Judge’s failure to give a Papadopoulos direction, or at least part of that direction, to the jury together with the majority verdict direction, or to discharge them at that point.
[42] The Supreme Court, having recorded its conclusion that the Judge had not erred in the way he addressed the jury, went on to comment on what judges should generally do when faced with an indication that jurors are having difficulty in reaching a unanimous result. The Court emphasised that that was a question to which no standard response could be made. Trial judges were “uniquely placed” to weigh the relevant considerations.^[12] The Court then observed:

[14] Without limiting that discretion, we observe that, generally speaking, we think it desirable to keep an informational direction about the mechanics and requirements of majority verdicts separate from any Papadopoulos direction or its equivalent. It would be rare, we think, for a judge to give a Papadopoulos direction prior to giving a majority verdict direction. Probably the only occasion when that might be appropriate is when the indication of deadlock arises before the jury has been deliberating for four hours, at which point a jury cannot be discharged.^[13]

[15] If the jury, having been given a majority verdict direction, comes back and indicates even a majority verdict is not possible, then the judge could consider a Papadopoulos direction. The occasions on which Papadopoulos directions will be needed are likely to have been reduced by the fact that the majority verdict direction will have “solved” 11:1 splits in the jury. But the rationale behind the Papadopoulos direction holds good even where the majority verdict direction has not led to a verdict. It may still be appropriate for juries to be given the “Papadopoulos” message, namely that changing one’s mind is not necessarily being untrue to the juror’s oath.

...

[17] We emphasise, however, that these are general observations. We do not wish to be prescriptive because of the importance of trial judge discretion in this area.

[43] As the Supreme Court emphasised, those were general observations, recognising the importance of a trial judge’s discretion. Here the Judge was faced with a particular situation. After a very short trial, the jury had been retired for just over four hours, with an overnight break in their deliberations. They told the Judge they were stalemated at 10 to two and asked for assistance. A simple majority verdict direction may not have been of great help to them, given they had just told the Judge they were stalemated in a position where they could not give a majority verdict. Moreover, and in distinction to the position being considered by the Supreme Court in Hastie, the Judge had in his summing-up not only mentioned the possibility of a majority verdict, but had also explained that such a verdict required an 11 to one majority. So the jury already knew that. We note finally that it was quite some time before the jury returned its verdict and that, when it did do so, one of the two jurors remained in the minority.
[44] On that basis, we think in these particular circumstances it was not inappropriate for the Judge first, in terms of the Papadopoulos message, to encourage the jury to continue to discuss matters with an open mind, albeit within the scope of their oath or affirmation, and then to explain the mechanics of the majority verdict. In these circumstances, the approach taken by the Judge was a sensible one, and one that did not put any illegitimate pressure on the jury.
[45] Mr Ropiha’s appeal against his conviction is dismissed accordingly.

Solicitors:
Public Defence Service, Wellington for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Ropiha DC Napier CRI-2013-020-3342, 9 July 2014.

^[2] The current form of the so-called Papadopoulos direction is to be found in R v Accused (CA87/88) [1988] 2 NZLR 46 (CA) at 59. The direction in its original form is set out in R v Papadopoulos (No 2) [1979] 1 NZLR 621 (CA) at 623 and 626.

^[3] Hastie v R [2012] NZSC 58, [2013] 1 NZLR 297.

^[4] R v Mokaraka [2001] NZCA 378; [2002] 1 NZLR 793 (CA) at [15].

^[5] At [14].

^[6] At [13].

^[7] R v Lahaye [2005] EWCA Crim 2847, [2006] 1 Cr App Rep 205.

^[8] Crimes Act 1961, s 339(1).

^[9] R v McDonald [2007] NZCA 142 at [11]. Those principles were subsequently endorsed by the Supreme Court in its judgment refusing to grant to leave to appeal from the Court of Appeal decision: McDonald v R [2007] NZSC 66 at [3].

^[10] James v R [2014] HCA 6, (2014) 306 ALR 1.

^[11] Hastie v R, above n 3, at [7].

^[12] At [13].

^[13] Juries Act 1981, s 22. An example of a Papadopoulos direction being given in these circumstances is Q (CA63/2010) v R [2010] NZCA 487, [2011] 1 NZLR 328 at [69]–[84].