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Court of Appeal of New Zealand |
Last Updated: 30 March 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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AND BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
16 February 2015 |
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Court: |
Miller, MacKenzie and Lang JJ |
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Counsel: |
I Jayanandan for Savane Maligi
J M Northwood for Isaac Maligi
A Markham for Respondent |
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Judgment: |
25 March 2015 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Background
[1] Both appellants were convicted, following trial before Judge Andrée Wiltens and a jury in the District Court in Manukau in October 2013, on one count of aggravated robbery. They were subsequently sentenced; Savane Maligi to three years and nine months (uplifted to four years for other unrelated offending), and Isaac Maligi to three years and six months.[1] They appeal against their conviction. Appeals against sentence, which were also filed, are not pursued.
[2] The Crown case was that on the evening of 27 June 2011 the appellants were in a van driven by a third person, Mr Stowers. They stopped alongside another group of youths outside the Clendon Shopping Centre. Isaac got out of the vehicle and confronted the group, demanding property from them. He encountered some resistance and Savane got out to assist. Isaac produced a pistol and in the ensuing fight the complainant was kicked and punched and struck from behind on the head with the pistol. The appellants stole his bag containing $15 in cash, a cellphone and an MP3 player. Mr Stowers also got out of the car at some stage and told the appellants to leave. The three got in the car and drove off. The appellants’ contention was that they stopped to ask the group for a cigarette and a mutual fight developed.
[3] Initially, all three participants, Savane, Isaac and Mr Stowers, were charged. The matter proceeded to trial in July 2013, but that trial was aborted because of issues over Mr Stowers’ fitness to stand trial. The charge was originally laid under s 235(c) of the Crimes Act 1961 as aggravated robbery armed with a weapon (the pistol). An amendment was allowed, at the beginning of the July trial, to a charge under s 235(b) of aggravated robbery together with any other person or persons. The indictment at both the July trial and the October trial was an indictment that Savane, Isaac and Mr Stowers, being together, robbed the complainant.
[4] When Mr Stowers was found fit to stand trial, the October trial date was fixed. When that trial began on 21 October 2013, counsel for Mr Stowers again raised issues as to fitness. The Judge decided to conduct the enquiry under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) as to Mr Stowers’ involvement in the offending at the same time as the jury trial.[2] At the end of the Crown case, on 25 October 2013, the Judge delivered his ruling on the s 9 issue.[3] He was satisfied on the balance of probabilities that Mr Stowers participated in the incident. He severed off Mr Stowers from the trial and ordered reports under s 38 of the Act.
[5] When the trial resumed against the appellants on 29 October 2013, Judge Andrée Wiltens addressed the jury in these terms:[4]
Members of the jury, you may or may not notice that the composition of the Court has changed somewhat. Mr Stowers is no longer with us. The reason for that is that we hold our members of the community responsible for their criminal actions only if they are mentally fit. So if they are mentally impaired in any way, assessment has to be made to see what the state of that impairment is before people can be tried for criminal culpability, which is what we have been doing last week.
On Friday I decided that it was appropriate that Mr Stowers be assessed in that way to see if he was fit to plead or not in relation to this charge. Reports will be obtained and, in due course, a decision will be made as to whether or not he is fit to plead and, if he is, he will then stand trial by himself for this matter.
So far as you are concerned, he has simply evaporated from the scene and you don’t need to worry about him anymore, except insofar as you accept that he was involved in any of this that we have heard about last week. You are not expected to return a verdict in respect of him. If he is fit to plead, another jury will do that at a later time. So simply concentrate on the evidence that relates to these two accused from now on.
[6] The Crown then formally closed its case. Both appellants elected not to call evidence. The trial concluded and both appellants were found guilty.[5]
The grounds of appeal
[7] The grounds advanced by Ms Jayanandan for Savane are that he was denied a fair trial because:
(a) The trial Judge erred in allowing the trial to proceed simultaneously with a s 9 hearing, thereby causing a miscarriage of justice.
(b) The trial Judge erred in requiring that the accused be arraigned in respect of the s 9 hearing, thereby creating a miscarriage of justice.
(c) The trial Judge’s questioning of witnesses was of a manner that caused a miscarriage of justice.
(d) The trial Judge’s summing up caused a miscarriage of justice.
(e) The trial Judge erred in his directions to the jury, thereby causing a miscarriage of justice.
[8] Isaac’s appeal is based on similar grounds, formulated by Ms Northwood as a submission that the trial Judge erred:
- (a) in running a s 9 “involvement hearing” alongside the trial, correct procedure was not followed in accordance with the Criminal Procedures (Mentally Impaired Persons) Act 2003. Furthermore, this was done without notice to the jury;
- (b) placing all three accused before the jury and including all three in the indictment. The Crown closed its case and the Judge summed up the case for the Crown with the inclusion of Mr Stowers despite being removed from the jury; and
- (c) in finding that Mr Stowers was “involved” and then advising the jury of this without adequate explanation or directions.
The s 9 issue
Both appellants submit that the trial Judge erred in having Mr Stowers arraigned and allowing the trial to proceed simultaneously with a s 9 hearing, and that proceeding in this way caused a miscarriage of justice. Both counsel place considerable weight on the decision of this Court in R v McKay.[6] In that case, this Court addressed in detail the requirement in s 9 that, before making a finding as to whether a defendant is unfit to stand trial, the Court must be satisfied on the balance of probabilities that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence charged. The appellants submit that the procedure described by the Court of Appeal in that case was not followed.
[10] In this case, it was appropriate for the trial Judge to adopt the course that he did. The July trial was aborted because of fitness to plead issues. Mr Stowers was subsequently found fit to stand trial. It is not clear to us whether his counsel again raised the question of his fitness before or after he was arraigned. Either way, it was raised so close to trial that s 12 could be applied. The Judge was right to deal with the question in a way which avoided aborting a second trial, if that course was open to him under the legislation. Clearly, it was.
[11] The relevant question on these appeals is whether the course adopted by the Judge caused any unfairness to either of the remaining defendants, in a way which might have prejudiced their right to a fair trial.
[12] We are satisfied that no unfairness to either appellant has arisen because the Judge was, simultaneously with performing his function of presiding over the jury trial, making his own assessment of Mr Stowers’ involvement in the offending, for the purposes of s 9. All of the evidence called by the Crown was relevant to the trial and the conduct of the Crown case was not altered or influenced by the simultaneous s 9 enquiry. The jury was not aware that the Judge was conducting a separate enquiry. It was not informed of the Judge’s conclusion on that enquiry. There is no risk that the jury’s performance of its task may have been affected by the simultaneous s 9 enquiry.
[13] We also need to consider whether the Judge’s consequent action of removing Mr Stowers from the trial following the s 9 enquiry, may have created any risk of unfairness to either appellant. Ms Jayanandan submits that there was unfairness, particularly because there was a conflict of evidence about a potentially damaging remark Mr Stowers was said to have made to the appellants during the incident. She submits that the appellants were disadvantaged in their defence in that all three accused had given DVD interviews, but that, because of the decision in respect of Mr Stowers, only the interviews of Isaac and Savane were played at trial. She submits that it was not possible to call Mr Stowers as he was a coaccused and therefore not compellable.
[14] The fact that Mr Stowers’ DVD was not played was a consequence of the decision to remove him from the trial, but it has not led to unfairness to either appellant. Neither of them was entitled to a trial which involved all three participants. Ms Jayanandan submits that the inability of the jury to hear Mr Stowers’ interview could lead to speculation despite warnings by the Judge. There is nothing in this point. The appellants were not entitled to have Mr Stowers’ interview played. If Mr Stowers had not been tried with them, his interview would not have been played. Ms Jayanandan’s further submission that the defence could not have called Mr Stowers because he was not compellable is not entirely correct. After the decision to remove him from the trial, he was to be tried separately, and would have been compellable under s 73(2)(a) of the Evidence Act 2006. No attempt was made to call him, and we think it most unlikely that either appellant would have wanted to run that risk. We do not consider any risk of unfairness arises from the theoretical but improbable possibility that Mr Stowers might have been called.
[15] Ms Jayanandan also takes issue with the reference, by both the Crown in closing and the Judge in summing up, to the part that Mr Stowers played in the incident. Ms Northwood also takes issue with the way his involvement was addressed in the trial, and submits the jury may have been confused about that issue, but were given no clear direction on how they should address his involvement when he was no longer part of the trial.
[16] Mr Stowers’ involvement was part of the case against the appellants, and there was evidence at the trial of it. That evidence was relevant to the case against the appellants. The fact that when the jury heard the evidence, they understood that they would have to consider his involvement on the charge against him as well, did not create a risk of misunderstanding the relevance of the evidence to the case against the appellants. It was proper for the Crown to rely upon that evidence in closing, and for the Judge to comment on it in summing up. The Judge’s directions on how the jury should deal with Mr Stowers’ exclusion from the trial were clear. No risk of a miscarriage of justice or an unfair trial arises.
[17] Ms Northwood submits that a miscarriage of justice has arisen because Mr Stowers’ mental state meant that his counsel was unable to obtain adequate instructions from him, but his inclusion in the trial precluded the testing of his evidence in cross-examination by counsel for the appellant. This point has no substance. Neither appellant was entitled to expect, as a matter of tactics, that Mr Stowers’ counsel would provide any assistance to their cases. Mr Stowers original inclusion in the trial, and subsequent exclusion from it, did not deprive the appellants of the right to cross-examine Mr Stowers. If Mr Stowers had continued in the trial, they would have had such a right, only if he gave evidence. That possibility is speculative, and does not give rise to a risk of unfairness.
[18] Ms Northwood also submits that an element of the charge is the joint enterprise of two or more persons, and the removal of Mr Stowers could have placed a heavier burden on the remaining accused, and undermined their alternative explanations. This point too is without substance. The involvement of both appellants as parties was sufficient to establish a joint enterprise of two or more persons, whether or not Mr Stowers was a party. Alternatively, Mr Stowers’ presence would also be sufficient to fulfil the joint enterprise element of the charges against Isaac and Savane, whether or not he was a party to the robbery. His removal from the trial did not alter the evidence about his involvement in the incident, and it could not adversely affect the appellants’ party status. Nor could it have affected the jury’s assessment of their explanation.
The Judge’s questioning of witnesses
[19] Ms Jayanandan submits that the trial Judge’s questioning of witnesses was conducted in a way that caused a miscarriage of justice. She submits that questions the Judge asked a witness about a bag said to be taken from the complainant during the course of the incident confused the issue, and that the confusion was compounded by the Judge’s summing up on the point.
[20] The complainant in his evidence described one of the offenders patting him down and feeling a pouch bag which the assailant took. He said that it was a Nike pouch bag, black on white, plain, with just one zip. Under cross-examination by Ms Jayanandan he referred to the bag having two zips. The Judge did not ask the complainant any questions about the bag. A later witness was asked to describe the bag that was taken from the complainant and described it as “Oh, big black bag, not that big, just a back-pack”. In cross-examination he confirmed his description of this as a black back pack. The Judge questioned the witness about that description in these terms:
Q. It was a black bag or some description?
A. Yeah. Ah, I just remember a big black bag.
Q. You say big or not big?
A. Oh, not big, just like a normal bag, black one.
Q. Is it a backpack?
A. Yes.
Q. So with straps over the shoulders?
A. Yes.
[21] Ms Jayanandan submits that the trial Judge’s questions regarding the back pack confused the issue especially since the complainant was firm that what was taken from him was what is colloquially referred to as a “bum bag” worn around his waist and underneath his jersey.
[22] We do not consider that there is any risk that the Judge’s questions may have created confusion. There were different descriptions of the bag and the Judge’s questions were intended to clarify that witness’ description. All of the evidence about the bag, including whether it was a bum bag or a back pack, and whether it had one zip or two, were matters for the jury to assess.
The summing up
[23] Ms Jayanandan submits that the summing up caused a miscarriage of justice because the trial Judge made a number of inappropriate comments that were detrimental to the success of the defence and created illegitimate prejudice.
[24] She takes issue with the Judge’s direction on the way the jury should approach its assessment of the witnesses. In the course of those comments he said:[8]
[52] Can I counsel you to not look at individual witnesses and say, "I don't like the look of that person, therefore I don't believe anything he or she says." We cannot tell by looking at people whether or not they are being honest, whether or not they are being accurate. It is just not possible. Tests have been done to see if Judges who are doing this sort of thing every day whether they are any better at it than anybody else, and I think the answer is we are not. So we do not look at people and decide. What we do is we put witness demeanour as it is known, to one side and what we do is we look for consistency. So consistency within what a witness says, so in saying the same thing over and over again on a consistent basis is far more likely to impress you than inconsistencies, somebody who says one thing one minute and then changes and says, "Oh, no the car wasn't blue it was grey," in fact later on they say it was green. You do not really know what the colour the car was and you will find it difficult to believe that witness. So, consistency and inconsistency are better guides to help you work your way through what you accept and what you do not accept.
[25] The Judge dealt with how the jury might go about their task in these terms:
[64] The process that I would adopt if I was you is I would start with what you know you can all agree on. All 12 of you say this definitely happened and you may well think that Isaac was the first one out of the car. You might well think that Savane was the second one out of the car, and you might well think that Mr Stowers was the driver. You might be able to agree on that immediately. Whether or not you all agree that Isaac had a gun or not I cannot say, it is a finding of fact for you to decide. Whether or not you think Isaac had his face covered either when he was still in the car or first getting out and then whether he went back on a second occasion to the car and came out again with his face covered. Again, they are matters for you to decide for that is part of the evidence that you need to resolve. Whether Savane had his face covered with the red bandana as one witness only has said, but which really was not challenged and I need to point out here that yesterday Ms Jayanandan said to you there was no evidence that the bandana was on his face, well in fact there is. And also, if I said to you somebody was wearing shoes would I need to say to you, "He was wearing shoes on his feet?" Because bandanas are only good for one thing in this scenario, they are only good for putting over the face. So, the explanation is that he had a bandana and on page 10 of the notes of evidence you will see that it is around his face according to TJ - JT sorry. Whether you accept that or not that is a matter for you.
[26] Counsel submits that the first direction was not balanced in that the Judge did not caution the jury that sometimes a witness can consistently be wrong and the jury needed to be mindful of this possibility. She submits that in the second direction the Judge had entered the arena and was actively countering defence counsel’s submissions to the jury in an inappropriate way.
[27] She submits that the unfairness was exacerbated by the Judge’s comment on evidential issues. The first dealt with evidence about whether Savane had been wearing a bandana, and where on his face it was. The Judge said:
[74] The second person out of the car was either wearing a red bandana or not as you find it. If he was what does that tell you? Does that tell you someone who is going to help his brother – his younger brother who is being attacked by a gang or does it tell you something else? You get to resolve that issue.
[28] The second addressed the involvement of Mr Stowers:
[65] You might accept that Mr Stowers was the last out of the car and that he then went up to the – those who were having a fight at that stage and he said, "Let's go." He said either you've "got what you came for", or "you've come what you've got for." And, there's a variation as to those two statements. The first two times he said it apparently it is, in the sense that I have recorded it namely round the wrong way. "You got - you came what you got for." Well that does not make much sense to me but that is what he said on two occasions. Later when Mr Le’Au’Anae was cross-examining him he turned it round to what might be a more sensible analysis of what he said, "You've got what you came for." You have to decide what words were said, if any words at all were said, and what they mean because on one version that could mean that he knows they are there to rob and he knows that one of them has got the bag with items in it. That is a matter for you.
...
[72] I have already spoken about what the third man had to say. Whether you accept that or not and what the actual words were are matters for you to resolve, but on one view that supports what the prosecution say that all three of them are there to rob. Whether that is the view that you take is a factual finding for you.
[29] Ms Jayanandan submits that in the circumstances, particularly the way in which the involvement of Mr Stowers in the trial had turned out, it was incumbent on the Judge to ensure that any reference to Mr Stowers was more carefully balanced. She further submits that the Judge ought to have pointed out to the jury that they needed also to consider the complainant’s evidence regarding comments made by Savane to him after the fight in which Savane explained the only reason he joined the fight was to help his brother. She submits that a failure to provide a balanced view tipped the evidence in favour of the Crown and created irreversible prejudice to the appellant.
[30] Complaint is also made about this passage in the summing up:
[68] The first witness for the prosecution was Joseph Tiera, also known as JT. For some reason Ms Jayanandan gave him another name yesterday which I do not know where that came from or why it appeared but he is either Joseph Tiera or JT so far as I am concerned. Now he says that the first person out of the car, whether you think that is Isaac or not is a finding for you, he says that that person asked him for stuff. Someone had asked for some smoke, smokes, had asked him for stuff probably from still inside the bag. If you want to look at that, that is at pages 2, 3 and 5 of the notes of evidence but if you are going to start trawling through remember you have got to look at the entire passages where things are referred to.
[31] Ms Jayanandan submits that the invitation to speculate that the items asked for were probably from inside the bag was unfairly prejudicial to the appellant and not supported by the evidence as the Judge suggested.
[32] Counsel also takes issue with comments in the summing up about the evidence of witnesses who described Isaac as having his face covered. She submits that, in order to be balanced, the comments should have contained some guidance to the jury about the care needed in accepting evidence from witnesses who say they could recognise a person who alighted from a vehicle with his face covered. She also submits that in commenting on the evidence of a witness who had described the bag taken from the complainant, the Judge should have highlighted that the witness’s description differed from the complainant’s.
[33] Counsel submits that the cumulative effect of numerous imbalanced comments in the summing up resulted in a miscarriage of justice.
[34] The extent to which a Judge in summing up chooses to describe the evidence, to assist the jury, is a matter of judgement for the Judge in each case, having regard to the circumstances of that case. There is no general requirement that a Judge should, or should not, venture into the level of detail which the Judge saw as appropriate in this case. In this case, the directions on the facts and the evidence are longer and more detailed than is common practice in a modern summing up. One of the consequences of venturing into this level of detail is the difficulty of ensuring that the description is balanced, and not susceptible to challenge on points of detail, as has occurred here.
[35] What is necessary is that the summing up should put, in a balanced way, the respective contentions for the Crown and the defence, and that any description of the evidence is balanced. In this case the essential issue for the jury was not complex. It was whether they accepted the Crown evidence about the nature of the encounter between the appellants and the complainant and his group, or whether they accepted as a reasonable possibility the appellants’ alternative explanation of the nature of that encounter as given in their interviews. The defence had raised a number of factual issues which were largely peripheral to that central question. The passages in the summing up challenged by the appellants generally relate to these issues. We need mention only some of these passages, as examples. The comment about the red bandana was an appropriate direction to the jury on the use they might make of evidence on which there had been a focus in the trial. The evidence of identification was clear, from a witness who knew the appellants. No identification warning was needed. Those examples support our conclusion that the detailed directions on the evidence did not go beyond the permitted bounds of comment, and were not unfair or imbalanced. We do not consider the challenged passages were unfair, or created a risk that the jury may have been diverted from the core issue.
[36] This was a strong Crown case. None of the matters raised gives rise to a risk of an unfair trial.
[37] The appeal is dismissed.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v Maligi DC Manukau CRI-2011-092-10855, 13 December 2013.
[2] R v Maligi DC Manukau CRI-2011-092-10855, 21 October 2013 [Section 9 Ruling].
[3] R v Stowers DC Manukau CRI-2011-092-10855, 25 October 2013 [Section 9 Ruling].
[4] R v Maligi DC Manukau CRI-2011-092-10855, 29 October 2013.
[5] We were informed that Mr Stowers was subsequently found fit to stand trial, and pleaded guilty to a reduced charge of being an accessory after the fact to the aggravated robbery.
[6] R v McKay [2009] NZCA 378, [2010] 1 NZLR 441.
[8] R v Maligi DC Manukau CRI-2011-092-10855, 29–30 October 2013 [Summing Up].
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