Peri v R [2015] NZHC 3099 (8 December 2015)

Last Updated: 7 August 2017

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-001705 [2015] NZHC 3099

IN THE MATTER OF	an application pursuant to s 147 Criminal Procedure Act 2011
BETWEEN	GRAEME PAUL PERI Applicant
AND	THE QUEEN Respondent

Hearing:	8 December 2015
Appearances:	A M M Ives for Appellant C H Macklin for Respondent
Judgment:	8 December 2015

_{ORAL JUDGMENT OF GILBERT J}

Counsel/Solicitors:

A Ives, Barrister, Auckland

Gordon Pilditch, Rotorua

PERI v THE QUEEN [2015] NZHC 3099 [8 December 2015]

Introduction

[1] Mr Peri faces one charge of aggravated robbery:

That [he] (and Heta Lennod Lloyd) on 11 June 2015 at Murupara, being armed with an offensive weapon, namely a knife, robbed Anthony James Rudolph of $80 cash.

_Particulars

Aided HETA LENNOD LLOYD by following Anthony James Rudolph to ensure he did not seek help instead of withdrawing cash.

[2] Mr Peri applies to be discharged pursuant to s 147 of the Criminal Procedure Act 2011 on the grounds that there is insufficient evidence upon which a properly directed jury could reasonably convict him of this charge.

The Crown’s case

[3] The Crown’s case is that on 11 June 2015, Mr Lloyd drove to the rear of a block of shops in Murupara in Mr Rudolph’s car. Mr Peri was in the front passenger’s seat and Mr Rudolph was in the backseat. Mr Lloyd parked behind the shops, got out of the car, opened the back door and demanded that Mr Rudolph withdraw all his money. When Mr Rudolph protested that he needed the money for rent, Mr Lloyd punched him in the face. Mr Lloyd then obtained a knife from the front of the car, returned to where Mr Rudolph was seated and threatened to ram it into his head. He pressed the tip of the knife into Mr Rudolph’s chest, piercing his skin.

[4] Mr Lloyd then drove to the front of the shops where there was an ATM. He threatened Mr Rudolph and again demanded that he withdraw money. Mr Rudolph walked into the shop adjacent to the ATM. Occupants of the car parked next to Mr Rudolph’s car heard Mr Lloyd make the demand and saw Mr Rudolph walk towards the shop. They also heard Mr Lloyd tell Mr Peri to “go and check on that cunt, make sure he’s not calling the pigs”, or words to that effect. They then observed Mr Peri get out of the car and walk to the entrance of the shop.

[5] Mr Rudolph went to the counter and asked for a packet of cigarettes and

$100. When he got the money, he deliberately dropped $20 on the ground and

concealed it in his sock. He looked up and saw Mr Peri keeping watch over him at the entrance to the shop. When Mr Rudolph completed the transaction, he and Mr Peri returned to the car and resumed their seats. Mr Rudolph handed over the

$80 to Mr Lloyd.

[6] The Crown has charged Mr Peri as a party under s 66(1) of the Crimes Act

1961 alleging that Mr Peri assisted Mr Lloyd, by acting as a lookout and checking to make sure that Mr Rudolph was not calling the police.

Essential elements of party liability

[7] The Supreme Court recently confirmed in Ashin v R what the Crown must prove to secure a conviction of a person as a party to an offence under s 66(1)(b):¹

[82] For the conviction of a person as a party to an offence under s 66(1)(b), proof is required of an action by that person that aids another to commit the offence. Such action must be deliberately taken, with the intention that the conduct will aid the principal offender in his or her criminal actions, the essential aspects of which must be known to the assisting person. What is essential includes both physical and mental aspects of that person’s conduct, that is, the actions to be taken and the intention with which they are to be done. Section 66(1)(c) and (d) have the same requirements, but with reference to abetting or inciting, and counselling or procuring, rather than to aiding. A particular feature of s 66(1) is that it concerns conduct providing assistance or encouragement that may be complete prior to commission of the crime for which it is provided.

[83] A full explanation of the legal elements of s 66(1)(b) would set out that the Crown must prove beyond reasonable doubt that:

(a) the offence to which the defendant is alleged to be a party was committed by a principal offender; and

(b) the person alleged to be a party assisted the principal offender in the commission of the crime, by words or conduct or both; and

(c) the person alleged to be a party in fact intended to assist the principal offender to commit that particular offence; and

(d) the person alleged to be a party knew both the physical and mental

elements of the essential facts of the offence to be committed by the principal offender.

Applicant’s submissions

[8] Ms Ives helpfully addressed her submissions to the evidence available to support each of these elements.

¹ Ashin v R [2014] NZSC 153.

Offence committed by a principal offender

[9] Ms Ives responsibly accepts, for the purposes of this application, that the Crown will be able to prove that Mr Lloyd committed aggravated robbery, as alleged.

Did Mr Peri assist Mr Lloyd in the commission of the offence?

[10] Ms Ives submits that there is insufficient evidence that Mr Peri’s actions in going to the shop actually assisted Mr Lloyd. She says that, at best, Mr Peri provided ineffectual aid which she submits is insufficient. She relies on the commentary in Adams at [66.18]:

A general distinction is to be drawn between two cases:

(a) Where the principal party in facts receives some assistance – no matter how minimal – which could possibly have had an effect on the commission of an offence; and

(b) Of completely ineffectual aid which might have had some effect only if events had turned out differently.

[11] I do not accept this submission. The evidence proposed to be led by the Crown is sufficient to establish that Mr Peri provided assistance to Mr Lloyd. He served a role similar to that of a lookout at the scene by watching Mr Rudolph inside the shop and checking to ensure that he was withdrawing cash as demanded and not calling the police. It does not matter that Mr Rudolph did not in fact call the police so that there was no need for Mr Peri to intervene. This is explained earlier in the same passage of the commentary in Adams relied on by Ms Ives:

... a lookout who has no occasion to warn the principal party of an unwelcome intervention, and who does nothing else by way of actively helping the principal party, actually assists the principal party only if the latter is aware of the lookout’s presence. If the principal party is aware of the lookout’s presence, the lookout makes an effective contribution to the offence by providing the principal party with an extra pair of eyes at the scene.

Did Mr Peri intend to assist Mr Lloyd in the commission of the offence?

[12] Ms Ives accepts that there is sufficient evidence from which a jury could infer that Mr Peri intended to assist Mr Lloyd by getting out of the car and walking to the shop entrance. However, she submits that there is insufficient evidence that he intended to assist Mr Lloyd to commit aggravated robbery and that he may have

been providing assistance after the fact for earlier offending including assault and unlicensed driving. I do not accept that submission. Mr Peri was present in the car and must have heard Mr Lloyd threatening Mr Rudolph and demanding that he withdraw money. The jury would be entitled to infer from the evidence that Mr Peri intended to assist Mr Lloyd to commit aggravated robbery by complying with Mr Lloyd’s instruction to go to the shop and check on Mr Rudolph to make sure that he was carrying out Mr Lloyd’s demand to withdraw money and not calling the police instead.

Did Mr Peri know of the physical and mental elements of the essential facts of the offence?

[13] Ms Ives submits that, because Mr Peri was in the front seat, there is insufficient evidence that he was aware of the knife or the fact that Mr Lloyd threatened Mr Rudolph with it. With respect, this submission is untenable. The evidence is that Mr Lloyd threatened Mr Rudolph and punched him before picking up the knife that was located in the front of the car. The jury could readily infer that Mr Peri, who was seated in the front of the car, was not only aware of the knife but also knew that Mr Lloyd threatened Mr Rudolph with it.

[14] I am satisfied that there is sufficient evidence from which a properly directed jury could reasonably infer that Mr Peri knew the essential facts of the offence committed by Mr Lloyd. Mr Lloyd unlawfully obtained cash from Mr Rudolph. This was extracted with threats, actual violence and the use of a knife. Mr Peri was present throughout and it must have been obvious to him that Mr Lloyd intentionally used the knife to rob Mr Rudolph.

Result

[15] The application by Mr Peri for a discharge pursuant to s 147 of the Criminal

_{Procedure Act 2011 is dismissed.}

M A Gilbert J