Jadallah v R [2018] NZCA 536 (30 November 2018)

Last Updated: 7 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA337/2018 [2018] NZCA 536

	BETWEEN	IBRAHIM JADALLAH Appellant
	AND	THE QUEEN Respondent

Hearing:	12 November 2018
Court:	Asher, Lang and Moore JJ
Counsel:	A M M Ives for Appellant E J Hoskin for Respondent
Judgment:	30 November 2018 at 9 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 Jadallah was found guilty by a jury in the High Court on a charge of aggravated robbery. That charge related to the theft of a Honda CRV motor vehicle. The jury acquitted Mr Jadallah on charges of aggravated robbery relating to the theft of a cellphone and wounding with intent to cause grievous bodily harm.
[2] On 28 May 2018, Courtney J sentenced Mr Jadallah to six years and six months’ imprisonment.^[1]
[3] Mr Jadallah appeals against conviction on the basis that the jury’s guilty verdict was unreasonable and inconsistent with the other two verdicts.^[2] He appeals against sentence on the basis that errors in reasoning caused the Judge to select a starting point that was too high, and this has resulted in an end sentence that is manifestly excessive.

The respective cases at trial

[4] All three charges related to an incident that allegedly occurred on the evening of 18 April 2017. Both had previously been in a relationship with Ms Miller, and the Crown alleged that this resulted in hostility between Mr Jadallah and the complainant.
[5] The animosity between the two men was said to have resulted in an earlier incident involving violence between them. The Crown contended that this resulted in Mr Jadallah seeking retribution against the complainant.
[6] The Crown alleged that Mr Jadallah went with two associates to the complainant’s home late on the evening of 18 April 2017. One of Mr Jadallah’s associates had told the complainant Mr Jadallah would be coming to the address, ostensibly to enable Mr Jadallah and the complainant to resolve their differences.
[7] The complainant invited the three men to enter the address and they socialised for approximately 30 minutes, during which Mr Jadallah smoked some methamphetamine. Mr Jadallah then went to the bathroom and returned holding a firearm. When Mr Jadallah pointed it at the complainant’s legs the complainant tried to strike the firearm with his foot. The Crown alleged Mr Jadallah then discharged the firearm twice, wounding the complainant in the knee. This led to the charge of wounding with intent to cause grievous bodily harm on which Mr Jadallah was acquitted.
[8] At some stage during this incident one of Mr Jadallah’s associates also punched the complainant.
[9] The complainant said that one of Mr Jadallah’s associates then drove away from the address in a Dodge motor vehicle belonging to the complainant. He said that Mr Jadallah then told his other associate to take another of the complainant’s motor vehicles, a Honda CRV. He said Mr Jadallah and his associate went into another room where they found the keys to the vehicle. Mr Jadallah’s associate then drove away in the Honda CRV. This led to the charge of aggravated robbery on which the jury found Mr Jadallah guilty.
[10] The complainant said the incident ended after Mr Jadallah called a taxi and the complainant travelled in it to his sister’s house, where an ambulance was called. The complainant also said Mr Jadallah stole his cellphone when he left the address. This formed the basis of the aggravated robbery charge on which Mr Jadallah was acquitted.
[11] The complainant initially refused to cooperate with the police. He did not name Mr Jadallah as one of the persons involved in the incident until approximately eight days later. He subsequently gave the police further details of the incident and told them about the theft of his motor vehicles. The police were then able to establish the identity of one of Mr Jadallah’s associates but not the other.
[12] The police were also able to establish that both motor vehicles were subsequently registered in Ms Miller’s name. Furthermore, Mr Jadallah had accompanied Ms Miller when she negotiated the sale of the Dodge to a third party. The Honda CRV and the cellphone have never been recovered.
[13] The defence case was that Mr Jadallah was not involved in the incident the complainant described. He also denied being involved in the earlier altercation with the complainant.

The appeal against conviction

[14] On Mr Jadallah’s behalf Ms Ives submits that the jury was required to accept the complainant’s version of events before it could convict Mr Jadallah on any of the charges. She contends the verdicts demonstrate that the jury must have rejected the complainant’s evidence in relation to the wounding charge and the aggravated robbery charge relating to the taking of the cellphone. Ms Ives submits the jury could not reasonably have accepted the complainant’s evidence in respect of the remaining charge of aggravated robbery, and the guilty verdict on that charge is inconsistent with the verdicts delivered on the other two charges.

Inconsistent verdicts?

[15] A guilty verdict on one charge will be unsafe if it is logically irreconcilable with a verdict of acquittal on another charge. As the Supreme Court observed in B (SC12/2013) v R:^[3]

Where they deliver multiple verdicts which are not capable of logical reconciliation, juries give some insight into their thought processes. Logically irreconcilable verdicts may indicate that the jury’s thinking has gone awry in some fundamental way: in particular, the jury may have acted on a misunderstanding of the law or reached an illegitimate compromise. In such circumstances, a court may feel it necessary to intervene in order to ensure that justice is done, despite its respect of the jury’s function in the criminal justice process.

(Footnote omitted).

[16] In R v Irvine, this Court observed to similar effect:^[4]

The question which we must ask ourselves is whether the acquittal on count one, in all the circumstances of this particular case, renders the verdict of guilty in respect of count two unsafe, in the sense that no reasonable jury could have arrived at different verdicts on the two different counts.

[17] In the present case we accept the Crown’s submission that there is a logical explanation for the fact that the jury found Mr Jadallah guilty on one charge but acquitted him on the remaining charges. On the wounding charge, the complainant ultimately gave the police a detailed description of the room in which the shooting had allegedly occurred. When the police searched that room, however, they did not find evidence of either blood staining or bullet holes in or around the furniture in the lounge on which the complainant said he had been sitting when he was shot. They did, however, find bullet holes in the wall of the master bedroom and a shell casing on the floor of that room. The complainant had not described any shots being fired in that room.
[18] When the police lifted the carpet in the lounge of the address, they discovered fragments from two bullets of differing calibres on the floorboards. There was no blood or tissue on these to suggest they had struck the complainant in the leg as he claimed. One of the fragments had wood and colourless fibres attached to it. These were consistent with having struck the lounge wall and a tapa cloth hanging on that wall. The police also found two bullets embedded in the wall where the tapa cloth was hanging, opposite the couch where the complainant had been sitting. Again, there was no blood or human tissue on these bullets. As a result, the forensic evidence did not support the complainant’s version of events.
[19] The Crown had no evidence other than the complainant’s version of events to support the charge alleging Mr Jadallah had stolen the complainant’s cellphone. The police have not been able to locate the cellphone or evidence linking it to Mr Jadallah following the robbery.
[20] The position is different in relation to the charge relating to the Honda CRV. Like the Dodge, the Honda CRV was subsequently transferred into Ms Miller’s name. Ms Miller was Mr Jadallah’s former partner and they clearly remained in contact because Mr Jadallah was present when Ms Miller sold the Dodge to a third party. Mr Jadallah did not face any charge in relation to that vehicle, presumably because the Crown did not consider it could establish he was a party to the theft. In the case of the Honda CRV, however, the complainant said Mr Jadallah had told his associate to take that vehicle. If accepted, this evidence meant Mr Jadallah had combined forces with his associate to steal the vehicle in circumstances where violence and threats of violence accompanied the theft. The fact that the vehicle was subsequently transferred into Ms Miller’s name provided a further link between Mr Jadallah and the vehicle. It therefore supported the complainant’s evidence that Mr Jadallah had incited or encouraged his associate to steal the vehicle. We consider these factors distinguish the charge relating to the Honda CRV from the other two charges.
[21] We therefore see no inconsistency between the three verdicts. This ground of appeal fails as a result.

Unreasonable verdict?

[22] A verdict may be set aside as unreasonable only where the Court is satisfied that no jury applying the appropriate standard of proof could reasonably have reached a guilty verdict on the evidence.^[5] The appellate court performs a review function; in doing so it must give appropriate weight to any advantages possessed by the jury.^[6] This is because the assessment of the credibility and reliability of evidence given by the witnesses is an essential part of the jury’s function as the delegated fact-finder. Appellate courts should not lightly trespass on their jurisdiction.
[23] We have already concluded that the jury’s verdict on the charge relating to the Honda CRV motor vehicle is logically explicable and can stand alongside the remaining verdicts. For largely the same reasons the jury’s verdict on that charge cannot be regarded as unreasonable. The jury had the benefit not only of the evidence of the complainant, but also the corroborating evidence relating to the transfer of the two vehicles into the name of Ms Miller and Mr Jadallah’s involvement in the sale of the Dodge. In those circumstances, we are satisfied the jury had a sufficient evidential basis for its verdict. The threshold for a finding of unreasonableness has not been met.
[24] The appeal against conviction must therefore fail.

The appeal against sentence

[25] The Judge took a starting point of seven years’ imprisonment.^[7] She allowed a discount of six months to reflect totality issues arising out of the fact that Mr Jadallah had earlier served a sentence of imprisonment on a firearms charge laid in relation to events that occurred after the incident giving rise to the present charge. This produced an end sentence of six years six months’ imprisonment.
[26] Ms Ives contends the starting point the Judge adopted was too high. She says the offending warranted a starting point of no greater than five years’ imprisonment. She does not take issue with the deduction applied to reflect totality principles or with any other aspect of the sentence other than the fact that in setting the starting point the Judge accepted that Mr Jadallah had been carrying a firearm when he entered the address. Ms Ives submits this finding was inconsistent with the jury’s verdict on the wounding charge. We deal with that issue first.
[27] It is well established that the trial judge is entitled to make factual findings for sentencing purposes provided the findings are consistent with the jury’s verdicts. Ms Ives points out that the Crown did not rely on Mr Jadallah’s possession and use of the firearm as the factor that converted the robbery of the Honda CRV into an aggravated robbery.^[8] Rather, it relied on the fact that Mr Jadallah carried out the robbery together with his two associates.^[9] She therefore submits that possession of the firearm was not an element of the aggravated robbery charge, and the verdict on the wounding charge prevented the Judge from concluding that Mr Jadallah was armed with a firearm when he entered the address.
[28] We do not consider the jury’s verdict on the wounding charge prevented the Judge from concluding Mr Jadallah was armed at the time the Honda CRV was stolen from the address. Rather, the verdict may reflect the fact that the jury could not be sure Mr Jadallah was the person who shot the complainant, or that he had shot him with the requisite intent.
[29] Furthermore, the Judge gave the jury the following direction when discussing the elements of the charge relating to the aggravated robbery of the Honda CRV:

[34] And if you then get to question 3.4: Are you sure that when the unknown person took the Honda, he and Mr Jadallah had a common intention to rob Mr Hifo of the Honda and to use their combined force to achieve that? So combined force does not require actual violence. The threat of violence is enough. If you were to find that Mr Jadallah still had the gun and Mr Hifo was fearful of being shot again, at the time the associate took the car that would be enough. If you do not think that is what happened, you are not sure about that, you would find not guilty. If you are sure that that is the way it happened, then you would return a guilty verdict.

(Emphasis added).

[30] This direction required the jury to conclude Mr Jadallah was still armed with a firearm when he told his associate to take the Honda CRV. The Judge’s finding was therefore consistent with the jury’s verdict.
[31] The starting point needed to reflect several aggravating features of the offending. These included the fact that it involved multiple offenders who gained entry to the complainant’s dwelling at night essentially by a false pretence. It also involved violence against the complainant in the form of punching by one of Mr Jadallah’s associates and the fact that Mr Jadallah was carrying a firearm. In addition, it resulted in the theft of the Honda CRV motor vehicle from the address.
[32] The guideline authority for sentencing purposes in relation to the charge of aggravated robbery remains this Court’s decision in R v Mako.^[10] In that case the Court observed:

[58] Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of seven years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years.

[33] The present offending has all of the features of the example given in this passage. It follows that the starting point of seven years’ imprisonment cannot be regarded as outside the available range.

Result

[34] The appeal against conviction is dismissed.
[35] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Jadallah [2018] NZHC 1211.

^[2] In her written submissions Ms Ives abandoned another ground of appeal challenging the circumstances in which the jury came to deliver a majority verdict on the charge on which they found Mr Jadallah guilty.

^[3] B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [67].

^[4] R v Irvine [1976] 1 NZLR 96 (CA) at 99, in a passage approved in B (SC12/2013) v R, above n 3, at [68].

^[5] Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [10].

^[6] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13] and [17].

^[7] R v Jadallah, above n 1, at [17].

^[8] Crimes Act 1961, s 235(c).

^[9] Section 235(b).

^[10] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).