Keepa v R [2014] NZCA 79 (20 March 2014)

Last Updated: 27 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA237/2013 [2014] NZCA 79
BETWEEN	WILLIAM KELVIN KEEPA Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	D A Ewen for Appellant M E Ball for Respondent
Judgment:	20 March 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Background

[1] The appellant appeals against his conviction on one count of aggravated robbery following his second trial in March 2013, jointly with his co-offender M.^[1] There are two grounds of appeal:

• (a) that an earlier trial in November 2012 was wrongly aborted, resulting in a miscarriage of justice; and
• (b) that the trial Judge at the appellant’s second trial did not adequately direct the jury that the charge against the appellant must be proved only on evidence admissible against the appellant.

[2] The Crown case was that the appellant and M had travelled from the Hutt Valley to Wellington. In Manners Street, they invited the victim and his associate (who had travelled to Wellington on the same bus as the offenders) to share a cannabis cigarette. The victim was not known to either offender. The four men walked to an alleyway and shared a cannabis cigarette. The victim and his associate then started walking back along the alleyway when the appellant tackled the victim rugbystyle from behind. He held the victim on the ground while M stomped, punched and kicked the victim. The appellant also punched the victim. The assailants took a cellphone and an iPod from the victim and that property was not recovered. The victim suffered significant injuries.

Aborting the earlier trial

[3] Both men stood trial in the District Court at Wellington before Judge Tuohy and a jury in November 2012. M elected to give evidence. In that evidence, M raised an alibi defence for the first time. The victim’s associate had identified both the appellant and M as having been on a bus from the Hutt Valley with him earlier in the day of the robbery. M acknowledged that as correct. However, M said there was a third person with him and the appellant when they met the victim and his associate. M said that when the group went down the alleyway, he did not go with them, but got into a car with two friends (whom he named) and drove away immediately before the robbery must have taken place.
[4] When M gave that evidence, Judge Tuohy adjourned the trial to give police a chance overnight to see what they could do with the new information. They were able to interview one of the two people named but not the other. The Judge also noted that M’s evidence had not been put to either of the relevant Crown witnesses, one of whom was the complainant. Counsel for the Crown asked the Judge to declare a mistrial. That was opposed by counsel for both accused. In particular, counsel for the appellant suggested that if there was to be a mistrial the trial could proceed against the appellant alone.
[5] The Judge directed that the trial be aborted.^[2] He said that the alternative was to exclude M’s evidence of his alibi. That would be difficult because the jury had heard the evidence. Dealing with the appellant, the Judge said that he was to a degree “collateral damage”.^[3] He had not brought about the situation but the case against both accused was inextricably linked. He held that a casualty had occurred which made it highly expedient for the ends of justice that the Court discharge the jury.
[6] The statutory power to discharge the jury in these circumstances is set out in s 22(3)(a) of the Juries Act 1981. That provides:

(3) The court may also discharge the jury without it giving a verdict (whether unanimous or majority) if—

(a) a casualty or emergency makes it, in the court’s opinion, highly expedient for the ends of justice to do so;

[7] Mr Ewen submits that there were in effect two separate trials, one of M and one of the appellant. He submits that, so far as the appellant’s trial is concerned, no casualty had occurred. The Crown case against the appellant had been completed. He submits that it was feasible for the Judge to have directed the jury to disregard M’s evidence when they considered the case against the appellant. Counsel for the appellant would also have invited the jury to disregard M’s evidence as selfserving. Mr Ewen submits that the Judge was wrong to abort the trial against the appellant based on the “togetherness” of the allegations against both men. The only evidence linking the two cases consisted of text messages sent by M indicating that he was with the appellant, which were inadmissible against the appellant. Mr Ewen submits that the Crown had lost nothing in its case against the appellant and therefore there was no casualty and no jurisdiction to abort the trial.
[8] Counsel for the Crown submits that Judge Tuohy was entitled to take the view that a casualty had occurred in the trial, in the sense of a mishap or unforeseen circumstance which made it against the interests of justice for the trial to proceed. Counsel submits that the casualty affected the appellant’s trial as well as M’s trial. The accused were jointly charged. Proof that the accused acted together was a key aspect of the Crown case. The Crown had been unable to properly investigate the alibi overnight. The proposed alibi defence had not been properly put to the Crown witnesses.
[9] The first question is whether the statutory criterion of a casualty, as in a mishap, was met.^[4] It is quite clear that as far as the trial of M is concerned, there was a mishap resulting from the belated alibi defence. The trial was a single trial of both accused on a joint charge. The casualty or mishap affected that trial. In a trial involving more than one defendant, the jury must be told to consider each defendant separately. A judge giving that direction will often say to the jury that there are in effect two trials within one. That is simply a convenient analogy to assist the jury’s understanding and a way of emphasising to the jury the need to consider the cases against each defendant separately. That analogy has no relevance to the interpretation and application of s 22 of the Juries Act. The trial in which the jury had been empanelled was a single trial involving both accused. The casualty or mishap affected that trial. The statutory criterion was met.
[10] Even if it was necessary to establish a casualty, as in a mishap, in relation to the trial which affected the appellant, we are satisfied that the circumstances met the statutory criterion. The Crown had, quite properly, laid a single charge jointly against both defendants in one indictment. The trial of the appellant (even if it is to be regarded as a separate trial from that of M) was therefore a joint trial. It had begun as such. If the trial was to continue, it would have been completed as a trial against the appellant alone. That change in the nature of the trial of the appellant was a casualty for the purposes of s 22.
[11] We are therefore satisified that the statutory precondition to the discharge of the jury from giving a verdict in respect of the appellant was met. The next question is whether that jurisdiction was properly exercised.
[12] The decision whether to discharge a jury when the statutory precondition is fulfilled is a matter of discretion for the trial Judge. That discretion must be exercised having regard to the circumstances of the trial. The Judge is in the best position to assess that question and this Court can only intervene in the exercise if the Judge acted on a wrong principle, took account of irrelevant considerations, failed to take into account a relevant consideration, or the decision was plainly wrong.^[5] That is not the case here. Even if it might have been feasible to continue the trial against the appellant alone as Mr Ewen suggests, that cannot be described as the only possible valid exercise of the discretion. The Judge, who was aware of the dynamics of the trial, was properly able to reach the conclusion that he did, namely that it was not fair to the Crown or even to the appellant, let alone the interests of justice, to try and soldier on with that trial against the appellant alone. He described the cases against the two accused as linked in a number of ways. The Crown case against M was based in part on the DNA evidence against the appellant, and on the text messages linking M to the appellant at the time. Judge Tuohy’s decision that he did not see it as possible to carry on with the trial against one accused was clearly a valid exercise of his discretion.
[13] This ground of appeal must fail.

Evidence not admissible against the appellant

[14] The appellant and M faced a retrial before Judge Hobbs and a jury in March 2013. The second ground of appeal relates to the directions given by the Judge as to the use of some statements by M.
[15] The Crown case against M included a number of text messages sent from M’s phone. Those text messages were open to the inference that M had taken the items which the victim said had been stolen in the robbery, and that he had possession of them. Those messages were admissible against M, but inadmissible against the appellant. Mr Ewen submits that, in summing up, the Judge did not adequately direct the jury on this aspect.
[16] The Judge gave full and careful directions, in general terms, to the jury about the need to consider the cases against each accused separately. He emphasised at several points in his summing up that the text messages were not admissible against the appellant. Mr Ewen’s challenge is not to the terms of those general directions. His challenge is more specific. In directing the jury the Judge used a question trail which addressed the elements of the offence of aggravated robbery. In dealing with the first element, theft, question one was framed “[a]re you sure that either Mr Keepa or [M] took [the victim’s] cellphone and iPod, knowing that those items belonged to [the victim] ...”. Mr Ewen submits that the way the question was framed created a risk despite the general warnings which the Judge gave as to the use of evidence. Specifically, the jury might conclude that M had taken the property on evidence admissible against him alone, but on that basis determine that the theft element had therefore been proven against both accused.
[17] As a counsel of perfection, the Judge could have given a specific direction not to take M’s text messages into account when considering question one against the appellant. He might, to emphasise the need for that, have posed question one as two separate questions, one for each accused. But not doing so did not amount to a misdirection. His general directions were sufficient in the circumstances.
[18] The essence of the question for the jury under question one was whether the Crown had proved that the items had been stolen in the incident at all. The Crown case that the cellphone and iPod had been stolen by one of the two robbers was essentially based on the evidence of the victim. Mr Ewen submitted to the jury that there was insufficient evidence that the items had gone missing in the course of the robbery. He referred to evidence that the phone had not been used since the day of the robbery, and to evidence that the victim had reported as stolen other items which he later found. Mr Ewen submitted that the jury could not be sure the phone or iPod had been stolen by anyone. That defence was squarely before the jury.
[19] To address this question the jury had to accept or reject the victim’s evidence that the items had been stolen in the robbery. That assessment of the victim’s credibility on this issue was relevant to both the case against M and the case against the appellant. The two accused were rightly tried together, and the need for an assessment of the victim’s credibility which applied to both was a necessary consequence of that joint trial. It is not realistic to suggest that the jury might have reached a different view of the victim’s credibility because the text messages provided some corroboration of his evidence against M but not against the appellant. It would have been a perverse outcome if the jury had accepted the victim’s evidence that the items had been stolen in respect of one accused but not the other.
[20] We are therefore satisfied that if, contrary to our finding, there was a misdirection, no miscarriage of justice has occurred. The second ground of appeal must also fail.

Result

[21] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 235(b).

^[2] R v Keepa DC Wellington CRI-2012-085-1667, 15 November 2012 (Ruling (No 3) of Judge C N Tuohy).

^[3] At [16].

^[4] See Pickering v R [2012] NZCA 311, [2012] 3 NZLR 498 at [14]–[22] reviewing the earlier interpretation of “casualty” and “emergency” found in s 22 and the similarly-worded s 374 of the Crimes Act in R v Tatana (1994) 11 CRNZ 708 (CA) and Buddle v R [2009] NZSC 117, [2010] 1 NZLR 717.

^[5] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].