HOBSON v R [2019] NZCA 44

HOBSON v R [2019] NZCA 44 [12 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA234/2018[2019] NZCA 44BETWEEN CHRISTIAN LEE HONE HOBSONAppellantAND THE QUEENRespondentHearing: 28 February 2019Court: French, Dobson and Brewer JJCounsel: C M Clews for AppellantJ A Eng for RespondentJudgment: 12 March 2019 at 11 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Hobson was convicted of aggravated robbery following a jury trial in theDistrict Court, presided over by Judge Spear.[2] Mr Hobson now appeals his conviction.Background[3] The charge arose out of a robbery of a liquor store. CCTV footage showed oneyoung man waiting outside the store as a lookout, while three other young men enteredthe store. The first violently subdued the store attendant by punching him in the faceseveral times, while the other two took items from the shelves.[4] Police alleged that Mr Hobson was one of the men who took items from theshelves and that the man who assaulted the store attendant was a Mr Maniapoto.They were unable to identify the lookout and the other man who had taken items fromthe shelves. Messrs Hobson and Maniapoto were charged with aggravated robberyunder s 235(b) of the Crimes Act 1961 and tried jointly.[5] Mr Hobson gave evidence at the trial. He admitted being one of the two mentaking items off the shelves but said the plan to rob the store had been a last minuteplan and that he did not know violence was going to be used. His defence was that hethought they were just going to grab the liquor and go.[6] The jury found both Mr Hobson and Mr Maniapoto guilty ofaggravated robbery.[7] Mr Hobson raises several grounds of appeal, each of which we now address.AnalysisPhoto wrongly admitted into evidence[8] Immediately before the start of the trial, the Judge gave a ruling allowing theprosecutor to put a photo of Mr Maniapoto in evidence.1 The photo was taken the dayafter the robbery.2 The purpose of admitting the photo was so the jury could comparethe photo with the images from the CCTV footage.3 Mr Maniapoto disputed havingany involvement in the robbery.1 R v Hobson [2018] NZDC 2905 at [7]–[24].2 At [7].3 At [14].[9] Mr Hobson contends the photo should have been excluded and that he wasmaterially prejudiced by its admission. He also contends the admission of theevidence should have prompted the Judge to order severance of Mr Hobson's trialfrom Mr Maniapoto's trial.[10] We do not accept these submissions. The admissibility of the photo was anissue that impacted on Mr Maniapoto alone. It could not possibly have prejudicedMr Hobson especially in circumstances where he himself gave evidence that the manseen on the CCTV footage punching the store attendant was Mr Maniapoto.[11] Joinder of the trials was appropriate and indeed inevitable in the circumstances.The Judge misdirected the jury on the elements of aggravated robbery and wronglysanctioned reasoning by inference[12] The Judge provided the jury with a memorandum explaining the elements ofthe offence of aggravated robbery. As the Judge explained, robbery is theftaccompanied by violence or threats of violence and that in this case the Crown wasalleging aggravated robbery because the robbery was said to have been undertaken bytwo or more persons.[13] In his memorandum, the Judge told the jury the Crown must prove beyondreasonable doubt that the three young men who entered the store had previouslydecided to steal liquor from it and had also previously decided the first man to enterwould use violence or the threat of violence to overcome any resistance to themstealing the liquor while the other two would steal it. The Judge then detailed thedifferent considerations relating to each defendant.[14] In the case of Mr Hobson, the Judge reminded the jury that Mr Hobson hadadmitted to being one of the three men, had admitted to entering the store withthe intention of stealing liquor and had also admitted to stealing a box of liquor.However, he had denied being aware the first man was likely to use violence or thethreat of violence. If the jury accepted that claim or considered it a reasonablepossibility, Mr Hobson would be guilty of theft, but not aggravated robbery.[15] The Judge then stated that the Crown case was either that Mr Hobson musthave known when he entered the store that the first man would be likely to use violenceor that before Mr Hobson stole the liquor he was aware the first man had assaulted theshop keeper and went ahead anyway.[16] In addition to the memorandum, the Judge also provided the jury with aquestion trail which reflected the contents of the memorandum.[17] As we understand it, Mr Hobson now impugns these directions d on the basisthat as a matter of law the Judge erred in failing to limit the inquiry regardingMr Hobson's intentions and knowledge to the time he entered the store. In our view,that criticism is unfounded. The Crown was entitled to put its case on the alternativebasis described by the Judge, namely that whatever his intentions at the moment ofentry, Mr Hobson would still be guilty of aggravated robbery if before he stoleanything he knew violence was being employed. At that point he became complicitin the joint enterprise and was acting together with Mr Maniapoto.[18] A further argument advanced on behalf of Mr Hobson was that the Judgewrongly invited the jury to draw inferences about Mr Hobson's knowledge andintentions despite the fact he had given direct evidence about his state of mind inevidence. However, that argument is based on the incorrect premise that the jury wassomehow obliged to accept Mr Hobson's assertions which it obviously was not.There was in fact ample evidence from which the jury could draw the necessaryinferences advocated by the Crown. Further, under cross-examination, Mr Hobsonhimself made damaging admissions suggesting he was aware of the violence when hestole the liquor.[19] Finally, for completeness on this ground of appeal, we note that the trial recordappears to be incomplete. At some point in the trial, the jury asked written questionsabout the elements of aggravated robbery. There is no record of when the questionswere asked or the Judge's response. However, while such a gap might usually be ofconcern, we are satisfied that in this case nothing turns on it. We do have copies ofthe Judge's memorandum which accurately addresses the issues raised by the jury'squestions.The Judge's lies direction was inadequate[20] Mr Hobson initially told police that he took no part in the robbery but hadstayed in a vehicle parked near the store, having asked one of his associates to go gethim some smokes. He confirmed that version of events at the beginning of a formalinterview but when confronted with the CCTV footage he accepted that he had enteredthe store. However, he maintained that as far as he knew they were only going to getsome smokes. He denied knowing the place was going to be robbed.[21] Both accounts differed from Mr Hobson's evidence at trial detailed above.In cross-examination, Mr Hobson claimed that when he was speaking to the police,he had been in a state of shock.[22] In her closing address, the prosecutor submitted it did not ring true that the lieswere due to shock. She submitted that Mr Hobson had deliberately lied to the policein order to mislead. She described this as "deception" and "trying to minimise yourrole",4 inviting the jury to consider whether that was still what Mr Hobson was doingat trial.[23] After the jury had retired, Mr Hobson's trial counsel asked for a lies direction.The Judge agreed that was appropriate and recalled the jury. After summarising thedifferent stories given by Mr Hobson, the Judge said:5[3] What I need to tell you is that if you accept that the defendant did lieto the police and that seems obvious and even if you consider that he liedduring the course of his evidence that doesn't mean that he is guilty of thisoffence. People can lie for all sorts of reasons, desperation to extractthemselves out of a difficult situation, it does not mean that he is guilty, it justmeans that he is someone who is prepared not to tell the truth when it suitshim and so what that means is members of the jury if you consider that he liesthat is simply a factor that you can take into account when you come to assesshis credibility on what he says about other matters so that is a standarddirection we give you about someone where there is an accusation that theyhave lied.4 The appellant suggested the jury may have understood by the use of the pronoun "your", thatthe prosecutor was referring to the jury's role. We disagree. It would have been clear to the jurythat the reference was to Mr Hobson's role in the robbery.5 R v Hobson DC Hamilton CRI-2017-070-002665, 21 February 2018.[24] On appeal, Mr Hobson contends the direction was defective because it failedto specifically mention the comments made by the prosecutor about deception andminimising. It is also contended the Judge should have mentioned the fact theprosecutor had never put the allegation of deception to Mr Hobson incross-examination.[25] In our view, these criticisms are untenable.[26] We are satisfied the lies direction adequately complied with the requirementsof s 124(3) of the Evidence Act 2006. The jury were told they must be satisfied MrHobson had in fact lied to the police, that people lie for various reasons, and that theyshould not automatically conclude that just because Mr Hobson had lied, he was guiltyof aggravated robbery.[27] As for the prosecutor's cross-examination, that was very much directed atsuggesting Mr Hobson was trying to deceive the jury, by exposing his evidence as adishonest minimisation of events. It was not necessary for the prosecutor to use anyparticular form of words.Outcome[28] In our view none of the grounds of appeal has any merit.[29] The appeal against conviction is accordingly dismissed.Solicitors:Kit Clews Law Limited, Hamilton for AppellantCrown Law Office, Wellington for Respondent