JADALLAH v R [2018] NZCA 536

JADALLAH v R [2018] NZCA 536 [30 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA337/2018[2018] NZCA 536BETWEEN IBRAHIM JADALLAHAppellantAND THE QUEENRespondentHearing: 12 November 2018Court: Asher, Lang and Moore JJCounsel: A M M Ives for AppellantE J Hoskin for RespondentJudgment: 30 November 2018 at 9 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B 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 ofaggravated 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 theftof a cellphone and wounding with intent to cause grievous bodily harm.[2] On 28 May 2018, Courtney J sentenced Mr Jadallah to six years andsix months' imprisonment.1[3] Mr Jadallah appeals against conviction on the basis that the jury's guilty verdictwas unreasonable and inconsistent with the other two verdicts.2 He appeals againstsentence on the basis that errors in reasoning caused the Judge to select a starting pointthat 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 eveningof 18 April 2017. Both had previously been in a relationship with Ms Miller, andthe Crown alleged that this resulted in hostility between Mr Jadallah andthe complainant.[5] The animosity between the two men was said to have resulted in an earlierincident involving violence between them. The Crown contended that this resulted inMr Jadallah seeking retribution against the complainant.[6] The Crown alleged that Mr Jadallah went with two associates tothe complainant's home late on the evening of 18 April 2017. One of Mr Jadallah'sassociates 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 socialisedfor approximately 30 minutes, during which Mr Jadallah smoked somemethamphetamine. Mr Jadallah then went to the bathroom and returned holding afirearm. When Mr Jadallah pointed it at the complainant's legs the complainant triedto strike the firearm with his foot. The Crown alleged Mr Jadallah then discharged thefirearm twice, wounding the complainant in the knee. This led to the charge of1 R v Jadallah [2018] NZHC 1211.2 In her written submissions Ms Ives abandoned another ground of appeal challenging thecircumstances in which the jury came to deliver a majority verdict on the charge on which theyfound Mr Jadallah guilty.wounding with intent to cause grievous bodily harm on which Mr Jadallah wasacquitted.[8] At some stage during this incident one of Mr Jadallah's associates also punchedthe complainant.[9] The complainant said that one of Mr Jadallah's associates then drove awayfrom the address in a Dodge motor vehicle belonging to the complainant. He said thatMr Jadallah then told his other associate to take another of the complainant'smotor vehicles, a Honda CRV. He said Mr Jadallah and his associate went into anotherroom where they found the keys to the vehicle. Mr Jadallah's associate then droveaway in the Honda CRV. This led to the charge of aggravated robbery on which thejury found Mr Jadallah guilty.[10] The complainant said the incident ended after Mr Jadallah called a taxi andthe 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 wasacquitted.[11] The complainant initially refused to cooperate with the police. He did notname Mr Jadallah as one of the persons involved in the incident until approximatelyeight days later. He subsequently gave the police further details of the incident andtold them about the theft of his motor vehicles. The police were then able to establishthe identity of one of Mr Jadallah's associates but not the other.[12] The police were also able to establish that both motor vehicles weresubsequently registered in Ms Miller's name. Furthermore, Mr Jadallah hadaccompanied 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 incidentthe complainant described. He also denied being involved in the earlier altercationwith the complainant.The appeal against conviction[14] On Mr Jadallah's behalf Ms Ives submits that the jury was required to acceptthe complainant's version of events before it could convict Mr Jadallah on any ofthe charges. She contends the verdicts demonstrate that the jury must have rejectedthe complainant's evidence in relation to the wounding charge and theaggravated robbery charge relating to the taking of the cellphone. Ms Ives submits thejury could not reasonably have accepted the complainant's evidence in respect of theremaining charge of aggravated robbery, and the guilty verdict on that charge isinconsistent 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 irreconcilablewith a verdict of acquittal on another charge. As the Supreme Court observed inB (SC12/2013) v R:3Where they deliver multiple verdicts which are not capable of logicalreconciliation, juries give some insight into their thought processes.Logically irreconcilable verdicts may indicate that the jury's thinking hasgone awry in some fundamental way: in particular, the jury may have actedon a misunderstanding of the law or reached an illegitimate compromise.In such circumstances, a court may feel it necessary to intervene in order toensure that justice is done, despite its respect of the jury's function in thecriminal justice process.(Footnote omitted).[16] In R v Irvine, this Court observed to similar effect:4The question which we must ask ourselves is whether the acquittal on countone, in all the circumstances of this particular case, renders the verdict ofguilty in respect of count two unsafe, in the sense that no reasonable jury couldhave arrived at different verdicts on the two different counts.[17] In the present case we accept the Crown's submission that there is a logicalexplanation for the fact that the jury found Mr Jadallah guilty on one charge butacquitted him on the remaining charges. On the wounding charge, the complainantultimately gave the police a detailed description of the room in which the shooting had3 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].allegedly occurred. When the police searched that room, however, they did not findevidence of either blood staining or bullet holes in or around the furniture in the loungeon 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 thefloor of that room. The complainant had not described any shots being fired in thatroom.[18] When the police lifted the carpet in the lounge of the address, they discoveredfragments from two bullets of differing calibres on the floorboards. There was noblood or tissue on these to suggest they had struck the complainant in the leg as heclaimed. 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 onthat wall. The police also found two bullets embedded in the wall where the tapa clothwas hanging, opposite the couch where the complainant had been sitting. Again, therewas no blood or human tissue on these bullets. As a result, the forensic evidence didnot support the complainant's version of events.[19] The Crown had no evidence other than the complainant's version of events tosupport 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 toMr 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 contactbecause 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 becausethe Crown did not consider it could establish he was a party to the theft. In the caseof the Honda CRV, however, the complainant said Mr Jadallah had told his associateto take that vehicle. If accepted, this evidence meant Mr Jadallah had combined forceswith his associate to steal the vehicle in circumstances where violence and threats ofviolence accompanied the theft. The fact that the vehicle was subsequently transferredinto 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 orencouraged his associate to steal the vehicle. We consider these factors distinguishthe charge relating to the Honda CRV from the other two charges.[21] We therefore see no inconsistency between the three verdicts. This ground ofappeal fails as a result.Unreasonable verdict?[22] A verdict may be set aside as unreasonable only where the Court is satisfiedthat no jury applying the appropriate standard of proof could reasonably have reacheda guilty verdict on the evidence.5 The appellate court performs a review function; indoing so it must give appropriate weight to any advantages possessed by the jury.6This is because the assessment of the credibility and reliability of evidence given bythe 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 tothe Honda CRV motor vehicle is logically explicable and can stand alongside theremaining verdicts. For largely the same reasons the jury's verdict on that chargecannot be regarded as unreasonable. The jury had the benefit not only of the evidenceof the complainant, but also the corroborating evidence relating to the transfer of thetwo vehicles into the name of Ms Miller and Mr Jadallah's involvement in the sale ofthe Dodge. In those circumstances, we are satisfied the jury had a sufficient evidentialbasis 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 adiscount of six months to reflect totality issues arising out of the fact that Mr Jadallahhad earlier served a sentence of imprisonment on a firearms charge laid in relation to5 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].events that occurred after the incident giving rise to the present charge. This producedan end sentence of six years six months' imprisonment.[26] Ms Ives contends the starting point the Judge adopted was too high. She saysthe 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 withany other aspect of the sentence other than the fact that in setting the starting pointthe Judge accepted that Mr Jadallah had been carrying a firearm when he enteredthe address. Ms Ives submits this finding was inconsistent with the jury's verdict onthe wounding charge. We deal with that issue first.[27] It is well established that the trial judge is entitled to make factual findings forsentencing 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 ofthe firearm as the factor that converted the robbery of the Honda CRV into anaggravated robbery.8 Rather, it relied on the fact that Mr Jadallah carried out therobbery together with his two associates.9 She therefore submits that possession ofthe firearm was not an element of the aggravated robbery charge, and the verdict onthe wounding charge prevented the Judge from concluding that Mr Jadallah was armedwith a firearm when he entered the address.[28] We do not consider the jury's verdict on the wounding charge preventedthe Judge from concluding Mr Jadallah was armed at the time the Honda CRV wasstolen from the address. Rather, the verdict may reflect the fact that the jury could notbe sure Mr Jadallah was the person who shot the complainant, or that he had shot himwith the requisite intent.[29] Furthermore, the Judge gave the jury the following direction when discussingthe 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 theunknown person took the Honda, he and Mr Jadallah had a common intentionto 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 is8 Crimes Act 1961, s 235(c).9 Section 235(b).enough. If you were to find that Mr Jadallah still had the gun and Mr Hifowas fearful of being shot again, at the time the associate took the car thatwould be enough. If you do not think that is what happened, you are not sureabout that, you would find not guilty. If you are sure that that is the way ithappened, then you would return a guilty verdict.(Emphasis added).[30] This direction required the jury to conclude Mr Jadallah was still armed with afirearm when he told his associate to take the Honda CRV. The Judge's finding wastherefore consistent with the jury's verdict.[31] The starting point needed to reflect several aggravating features of theoffending. These included the fact that it involved multiple offenders who gainedentry to the complainant's dwelling at night essentially by a false pretence. It alsoinvolved violence against the complainant in the form of punching by one ofMr 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 ofaggravated robbery remains this Court's decision in R v Mako.10 In that case the Courtobserved:[58] Forced entry to premises at night by a number of offenders seekingmoney, drugs or other property, violence against victims, where weapons arebrandished even if no serious injuries are inflicted would require a startingpoint of seven years or more. Where a private house is entered the startingpoint would be increased under the home invasion provisions to around tenyears.[33] The present offending has all of the features of the example given in thispassage. It follows that the starting point of seven years' imprisonment cannot beregarded as outside the available range.Result[34] The appeal against conviction is dismissed.[35] The appeal against sentence is dismissed.10 R v Mako [2000] 2 NZLR 170 (CA).Solicitors:Crown Law Office, Wellington for Respondent