Sylva v R [2017] NZCA 567 (6 December 2017)

Last Updated: 14 December 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA345/2017 [2017] NZCA 567
BETWEEN	STEVEN IHAKA SYLVA Appellant
AND	THE QUEEN Respondent

Hearing:	16 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	N M Dutch for Appellant A J Ewing for Respondent
Judgment:	6 December 2017 at 10 am

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

[1] Mr Sylva was found guilty by a jury in the District Court at Rotorua on charges of aggravated robbery and burglary. On 26 May 2017, Judge Snell sentenced him to an effective term of seven years and eight months’ imprisonment on both charges.^[1] He now appeals against conviction and sentence.

Background

[2] The charges were laid as a result of an incident that occurred on the night of 19 April 2016. Earlier that day Mr Sylva and an associate had been present at the complainant’s house for several hours during the late morning and early afternoon. The complainant, who was 17 years old at the time, had seen Mr Sylva on several previous occasions and believed his name was Stevie.
[3] Several persons entered the complainant’s address that night whilst he was asleep in his bedroom. The complainant woke up and went upstairs to investigate noises he could hear in the room above his bedroom. As he did so, he observed a person on the stairs. That person was wearing a Black Power gang patch. The complainant told the police he recognised the person on the stairs as being the person he knew as Stevie.
[4] When the complainant went into the living room of the address, he found several persons searching the house. They had disguised themselves by covering their faces with bandanas. When the complainant went into his mother’s bedroom, he found an unknown male person wearing his puffer jacket. The complainant confronted this person about stealing his jacket and other members of the group became involved. One of those persons produced a pistol and pointed it at the complainant. Another of the intruders threatened him with a barstool and wanted to know the location of any drugs and money.
[5] The complainant was traumatised and agreed to show the intruders items of value in his bedroom. He was then escorted downstairs with either a knife or a screwdriver pressed to the back of his neck. Fortunately, he was able to escape and took refuge in a toilet where he locked the door. The intruders left the address taking several items of the complainant’s property with them.
[6] The police believed the person the complainant knew as Stevie to be Mr Sylva. They therefore compiled a montage of eight photographs comprising Mr Sylva and seven other persons of similar appearance. The complainant identified Mr Sylva as the person he had seen on the stairs of his address.

Grounds of appeal

[7] Mr Dutch advances five grounds of appeal on Mr Sylva’s behalf. They can be summarised as follows:

• (a) The complainant’s evidence relating to his identification of Mr Sylva was not sufficiently reliable to be admissible.
• (b) The Crown should not have been permitted to recall the complainant to give evidence regarding his identification of Mr Sylva after he had concluded his original evidence.
• (c) The trial Judge erred in the manner in which he answered a question posed by the jury.
• (d) The Crown unfairly criticised the defence in its closing address.
• (e) The Judge ought to have given the jury a Papadopoulos direction when they indicated they were having difficulty reaching their verdicts.

[8] Mr Sylva also appeals against his sentence.

Appeal against conviction

The complainant’s identification of Mr Sylva

[9] This issue arose at a pre-trial hearing when trial counsel (not Mr Dutch) objected to the evidence to be given by the complainant regarding his identification of Mr Sylva using the photographic montage. She argued that although the eight photographs in the montage depicted persons of similar appearance, those persons did not match the complainant’s description of the person called Stevie. The Judge rightly rejected this argument and Mr Dutch did not pursue it with any vigour on appeal. Once the police believed Mr Sylva was the person the complainant knew as Stevie they were entitled to assemble a montage that included Mr Sylva and seven other men of similar appearance. Having viewed the montage, we are also satisfied it depicted eight persons of sufficiently similar appearance to satisfy the formal requirements for visual identification evidence under s 45(3)(b) of the Evidence Act 2006.
[10] Mr Dutch went on to argue that the identification evidence given by the complainant was not sufficiently reliable to be admissible. This argument confronts several obstacles, not the least of which is that Mr Sylva’s first name is Steven and the complainant said the man on the stairs was the person he knew as Stevie. Furthermore, the complainant picked Mr Sylva out from the photographic montage and he had met Mr Sylva on several earlier occasions. He had also seen Mr Sylva when he visited the address for several hours on the day of the incident giving rise to the charges. On that occasion Mr Sylva was accompanied by a person who was a member of the Black Power gang. The complainant had shaken Mr Sylva’s hand during his visit to the address and had spoken to him.
[11] The complainant was also in close proximity to the person on the stairs for approximately five seconds, and he was able to give a detailed description of the clothes being worn by that person. This corresponded in large part with clothing worn by Stevie earlier in the day. He was also able to say that Stevie had a scar near his eye and Mr Sylva has a scar in that area.
[12] These factors persuade us that the circumstances surrounding the complainant’s identification of Mr Sylva rendered it sufficiently reliable to go to the jury.

Should the Crown have been permitted to recall the complainant to give identification evidence after his evidence had been completed?

[13] This issue arises because counsel for the Crown omitted to ask the complainant about his identification of Mr Sylva using the photographic montage when he initially gave evidence. Mr Sylva’s trial counsel did not oppose the prosecutor’s application to recall the complainant to give that evidence on the morning of the fourth day of the trial.
[14] This ground of appeal cannot succeed given the fact that Mr Sylva’s trial counsel consented to the complainant being recalled. We observe in any event that the application is likely to have succeeded even if Mr Sylva’s trial counsel had opposed it. The omission to call the evidence occurred through inadvertence, and the evidence was obviously important to the Crown case. In addition, Mr Sylva’s counsel had the opportunity to cross-examine the complainant regarding the evidence after he was recalled to give it. We do not consider there was any unfair prejudice to Mr Sylva in the witness being recalled to give evidence that he would have been entitled to give earlier in the trial.
[15] This ground of appeal therefore fails, as does Mr Dutch’s associated submission that the Judge should have declared a mistrial at this point.

The Judge’s response to the jury question

[16] During their deliberations the jury asked the following questions:

Where was the defendant on that night of incident?

Is one reliable eye witness account enough to find a person guilty beyond reasonable doubt?

[17] The Judge responded to these questions in the following way:

Dealing with the first part of the question, where was the defendant on that night of the incident? The answer to that is, that there is no evidence relating to where he was. The only evidence as to his whereabouts comes from the identification witness. That is the only evidence. So there is no other evidence as to where he was than that.

The second question is one reliable eye witness account enough to find a person guilty beyond reasonable doubt?

The answer to that is, “Yes”. If you accept that evidence. Proof beyond reasonable doubt means you must be sure, so before you could rely on one reliable witness you would have to accept their evidence. If you do accept it, that is sufficient to find a person guilty. If you accept it and makes you feel sure that the identification is correct. However if you are left unsure, then it would be insufficient but where there is one, two or three eye witnesses is irrelevant, it is what you accept as a jury in terms of the evidence that matters.

I do not think that I can assist you any further with these questions. I will ask you to retire, thank you.

[18] Mr Dutch contends the Judge ought to have gone further in answering the first question and reminded the jury that the onus of proof was on the Crown. He says the jury’s question suggests they had a fundamental misunderstanding of the onus and burden of proof. Mr Dutch also submits the Judge’s comments implied that the complainant’s evidence amounted to evidence of Mr Sylva’s whereabouts, rather than the fact that this was a matter for the jury to determine.
[19] We reject this submission for two reasons. First, the second question demonstrates that the jury clearly understood the Crown bore the onus of proving the charges beyond reasonable doubt. The Judge’s response to the second question reinforced that point.
[20] Secondly, although the second question squarely raised the issue of the burden and standard of proof, the first did not. The first question was a straightforward factual enquiry. The Judge correctly answered the question by reminding them there was no evidence as to Mr Sylva’s whereabouts on the night of the incident other than that given by the complainant. The Judge then emphasised the need to be sure about the correctness of the complainant’s identification of Mr Sylva when he answered the second question.
[21] This ground of appeal fails as a result.

Unfair criticism of defence in the Crown closing address

[22] This issue arises because of the following comments made by the prosecutor towards the end of her closing address:

And I want to talk lastly just about [the complainant] and why you can believe him. He gave very candid evidence. He acknowledged that he had a colourful family, acknowledged that he smoked cigarettes and that he smoked cannabis in his room. He confirmed that under cross-examination from my friend. My friend will focus on that and suggest that he was affected by cannabis and that he’d smoked cannabis last night. Unfortunately, [the complainant], and this is another feature or demonstration of his candidness, he accepted that cannabis does mess with your mind, that it does have an effect on you. But I ask you to look at the evidence carefully when you are considering that matter because — and I’ll take you to page 70, line 10, when he was asked if he smoked cannabis. There was a lead-up about cigarettes and the lighter. He accepted, “Yeah, I smoke, I did smoke cannabis, yep.” “So this is just before you went to sleep?” There’s no clarification in there about when he went to sleep, whether we’re talking about that night. The questions that lead into that were all very general, that he did smoke in his room. His mother acknowledged that as well. Again, another sign of his credibility. He’s consistent with others, with other witnesses. So I just ask that you look at that, look at that carefully. The Crown says at best it’s ambiguous.

[23] Mr Dutch submits that, if the Crown considered this issue to be important, it should have taken the opportunity to explore it when the prosecutor re-examined the complainant. He says it was not appropriate for her to raise it for the first time in her closing address.
[24] The prosecutor clearly raised the issue during her closing address because she anticipated Mr Sylva’s counsel would close to the jury on the basis that the complainant’s identification evidence was called into question because he had consumed cannabis on the night of the incident.
[25] There may have been force to Mr Dutch’s submission if the cannabis issue had assumed importance in the context of the trial as a whole. We see no substance to the argument, however, because the issue was clearly of peripheral significance in the overall context of the trial. Mr Sylva’s trial counsel also had the ability to challenge the prosecutor in her closing address if she considered it to be important. The fact that she did not do so suggests she did not view it as being of any moment. The only reference to the issue in her closing address related to the fact that the complainant had smoked a bong before he encountered the people who had entered his address.
[26] We therefore do not consider the prosecutor’s remarks created unfairness to Mr Sylva or led to a risk of a miscarriage of justice.

Failure to give a Papadopoulos direction

[27] This issue arises because the jury indicated in two separate communications that they were having difficulty in reaching verdicts. The first was received at 12.34 pm on 17 March 2017 after the Judge had summed up earlier the same day. It read: “We the jury have reached an impasse regarding the case of Steven Sylva.”
[28] After discussing the communication with counsel the Judge responded as follows:

I have discussed your question with counsel. At this stage it is early days in terms of your retirement. We are a long, long way away from the circumstances that are required to be met to give a majority verdict. I will let you know when you reach that point.

The only response that I can give you is that you need to go back and keep trying to reach a unanimous verdict. We require at this stage a unanimous verdict of all 11 of you, and if there is anything specific that we can assist you with, then write that down on the question area of the paper that we have given you and we will try to assist you but the position at the present time is that you need to simply keep trying to reach a unanimous verdict and I would ask you to retire to keep going please.

If you can retire.

[29] At 3.22 pm the same afternoon the jury sent the following communication to the Judge:

We the jury have not made a unanimous decision and no we cannot make any further progress in this instance.

[30] At that point the Judge gave the jury a majority verdict direction. Mr Dutch submits the Judge ought to have gone further and given the jury what is commonly known as a Papadopoulos direction.^[2]
[31] The Supreme Court considered this issue in Hastie v R.^[3] In that case the Court observed that it would be rare for a trial judge to give a Papadopoulos direction prior to giving a majority verdict direction.^[4] If the jury still cannot reach a verdict the judge may consider giving a Papadopoulos direction but that will not universally be the case. Much will depend on the Judge’s assessment of the situation having regard to the length of time the jury has been deliberating, the number and complexity of the charges and the number of defendants in respect of whom the jury is required to reach verdicts.^[5]
[32] We consider it was well within the trial Judge’s discretion in the present case to provide the jury with a majority verdict direction to assist them to resolve the impasse they had reached. Had they subsequently indicated they were having difficulty in reaching verdicts, the Judge may have given consideration to the appropriateness of a Papadopoulos direction. Even then, however, he would not have been bound to take that course. He could have employed several other methods designed to assist the jury to reach verdict. One alternative would have been to invite the jury to conclude their deliberations that day and resume the following morning.
[33] As matters transpired, the jury was able to reach its verdicts later the same day. Given the relatively short period of time the jury had been deliberating the Judge cannot be criticised for electing to give majority verdict directions before resorting to a Papadopoulos direction. This ground of appeal fails as a result.
[34] It follows that the appeal against conviction must be dismissed.

Appeal against sentence

[35] The Judge took the lead charge to be that of aggravated robbery.^[6] He identified a number of aggravating features that needed to be taken into account when fixing the starting point for the sentence on that charge.^[7] It involved the unlawful entry at night into a residential home in which the young complainant was asleep in bed. It involved multiple offenders, at least two of whom were armed with weapons. The intruders were also disguised, indicating a level of premeditation, and they used both threats of violence and actual violence.
[36] The offending also had gang overtones and involved an attempt to steal drugs and money. It resulted in several items being stolen from the address. These included an iPod, cellphone, headphones, television and a laptop computer as well as the complainant’s schoolbooks.^[8] Apart from the schoolbooks none of this property has been recovered.
[37] The complainant has also suffered considerable trauma as a result of the events giving rise to the charges.^[9]
[38] The Judge selected a starting point of seven years and six months’ imprisonment.^[10] He added an uplift of six months to reflect the fact that Mr Sylva had several previous convictions for burglary.^[11] He then applied a discount of four months to reflect insight Mr Sylva had shown into the suffering of the complainant and for rehabilitative intentions.^[12] This produced an end sentence of seven years and eight months’ imprisonment.^[13] The Judge imposed that sentence on the charge of aggravated robbery and a concurrent sentence of five years’ imprisonment on the burglary charge.^[14]
[39] Mr Dutch submits that the starting point was too high. He points out there was no evidence to suggest Mr Sylva was in possession of a weapon or that he became involved in using or making threats of violence. He also submits that the use of weapons appears to have been a spontaneous decision by some members of the group once the complainant discovered what they were doing.
[40] As the Judge observed, the starting point on the charge of aggravated robbery needed to be fixed having regard to the guideline judgment of this Court in R v Mako.^[15] Mr Sylva’s trial counsel accepted that the offending fell within a band identified in Mako as requiring a starting point of seven to ten years’ imprisonment.^[16] The Judge agreed with this submission. He also considered Mr Sylva’s offending fell towards the bottom of the relevant band having regard to the level of Mr Sylva’s involvement.
[41] This narrative demonstrates that the Judge adopted a starting point well within the available range for offending having the aggravating factors he had identified.

Result

[42] The appeal against conviction is dismissed.
[43] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Auckland for Respondent

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^[1] R v Sylva [2017] NZDC 11097 [Sentencing notes].

^[2] The current form of the direction can be found in R v Accused (CA 87/88) [1988] NZCA 263; [1988] 2 NZLR 46 (CA) at 59. The direction in its original form is to be found in R v Papadopoulos [1979] 1 NZLR 621 (CA) at 623 and 626.

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

^[4] At [14].

^[5] At [13].

^[6] Sentencing notes, above n 1, at [14].

^[7] At [15]–[16].

^[8] At [18].

^[9] At [17].

^[10] At [20].

^[11] At [21].

^[12] At [24].

^[13] At [25].

^[14] At [26].

^[15] At [11] and [19] citing R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

^[16] At [11]. See R v Mako, above n 15, at [58].