EDWARDS v R [2018] NZCA 93

EDWARDS v R [2018] NZCA 93 [2 May 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA637/2017[2018] NZCA 93BETWEEN JOSHUA TEREHUNGA EDWARDSAppellantAND THE QUEENRespondentHearing: 18 April 2018Court: Kós P, French and Miller JJCounsel: M A Stevens for AppellantK S Grau for RespondentJudgment: 2 May 2018 at 3 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Two young men are heading home up High Street, Dunedin, after a shoppingtrip. One is carrying some newly-bought shoes and socks. At the corner of High andHope Streets they are accosted by Mr Grace. The shoes and socks are taken fromthem. Mr Grace later pleads guilty to aggravated robbery and is sentenced to a termof imprisonment. He is to observe that they were most expensive shoes he everacquired. But Mr Grace is not alone. The issue at trial was whether the appellant,Mr Edwards, was also guilty of aggravated robbery. He is Mr Grace's cousin. It iscommon ground that he was present for at least some of the time before the two groupsseparated. He was charged with aggravated robbery, as a principal.[2] Mr Edwards was convicted by a jury and sentenced by Judge Phillips in theDistrict Court to two years and two months' imprisonment.1 His appeal is againstconviction only. It is brought on the single contention that the jury's verdict isunreasonable given inconsistences in testimony of witnesses at trial.[3] This judgment addresses three questions:(a) When is a verdict unreasonable?(b) What had to be proved by the Crown?(c) Were the verdicts unreasonable?When is a verdict unreasonable?[4] In R v Owen, the Supreme Court said:2 a verdict will be unreasonable if, having regard to all the evidence, the jurycould not reasonably have been satisfied to the required standard that theaccused was guilty.[5] This Court has said that it is not its function to substitute its view of theevidence for a view which is reasonably open to the jury.3 The weight to be given todiscrete pieces of evidence, and assessment as to witness credibility, are essentiallyjury functions.4 In R v Patel we observed:5Verdicts based on credibility are likely to be overturned only where there iscontemporary evidence which clearly contradicts the witness or in cases ofglaring improbability. Inconsistencies alone are unlikely to reach thatstandard.[6] These principles were common ground between counsel.1 R v Edwards [2017] NZDC 24066 at [12].2 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].3 Tamati v R [2010] NZCA 49 at [48].4 P (CA84/2017) v R [2017] NZCA 319 at [49]–[50].5 R v Patel [2009] NZCA 102 at [27].What had to be proved by the Crown?[7] The charge in this case was aggravated robbery under s 235(b) of theCrimes Act 1961. The Crown case was that Messrs Grace and Edwards togetherparticipated in the robbery of the complainants. Its case was that Mr Edwards was aprincipal offender, not a party to Mr Grace's robbery.[8] To prove the offence, the Crown needed to establish that Mr Edwards wasphysically present, shared an intention to rob and played an active part in the robbery.This Court explained the position in Feterika v R:6[33] Two or more persons must be physically present and share an intentto rob, inherent in which is the intent to steal using their collective force shouldthat be called for. Sharing that intent, each must play some definite part toaccomplish the design. One may assault or threaten assault and rob and on as 66 analysis be a principal. Another may be present when the assault happensor threats made, and the robbery is accomplished, and do little more thanafford active support. This person may on a s 66 analysis be a party.Under s 235(1)(b) he or she will still be a principal.[34] If, by contrast, two or more persons are present and assault or threatenassault and one robs without the other or others anticipating that or willing it,that will fall short of aggravated robbery under s 235(1)(b). The principaloffender will be guilty of the included offence, robbery, and perhaps assault.Any secondary offender may under s 66(1) be a party to the robbery and alsobe guilty of assault, but not more.[9] As Ms Grau submitted for the Crown, it was immaterial which of the pairstruck one of the complainants, or which snatched the bag, as long as both were presentand acting together. What was required was that they both were active participants inthe threats made to the complainants. More than merely aiding and abetting robberyby the other is required.7[10] These principles were also common ground between counsel.Were the verdicts unreasonable?[11] The complainants were Messrs Tosh and Barnes. Mr Tosh was the owner ofthe new shoes and socks and was carrying them in the bag. They both gave evidence6 Feterika v R [2007] NZCA 526.7 R v Galey [1985] 1 NZLR 230 (CA) at 234.at trial. A third witness, Mr Membery, was walking down High Street at the sametime. He saw the incident and he too gave evidence at trial.[12] It may be observed that Mr Grace gave evidence in Mr Edwards' defence.He sought to take complete responsibility and suggested his cousin Mr Edwards wasa late-arriving innocent. We think the jury was entitled to disbelieve the evidence ofMr Grace, for three reasons. First, because he had an ulterior interest in securing theacquittal of his cousin. Secondly, because his evidence was inconsistent withMr Edwards' own account in a police interview, which was before the jury.Thirdly, because in his own police interview Mr Grace had said that he could notremember anything, because he had taken a cocktail of drugs. Yet in evidence hepurported to give a detailed account of exactly what had happened.[13] Mr Edwards did not give evidence at trial.[14] The evidence of Messrs Tosh, Barnes and Membery did vary in significantrespects. There were also internal inconsistencies in their recollections.[15] First, as to the order of events. Mr Tosh said the two men (which had to beMessrs Grace and Edwards, there being no third person) crossed the road andapproached him and Mr Barnes at about the same time, yelling and threatening.Mr Barnes however had Mr Edwards arriving later, getting out of a car. Mr Toshremembered one of them having got out of a car, but that they nonetheless approachedhim at about the same time. Mr Barnes became confused in evidence as to whetherMr Edwards got out of the car before or after the bag had been snatched. Mr Memberydescribed the two assailants as coming out of a building (neither one from a car) andconfronting the complainants at the same time.[16] Secondly, as to who approached whom. Both Mr Barnes and Mr Tosh haddifficulty identifying Messrs Grace and Edwards from photo montages. Mr Toshidentified a man (who proved to be Mr Edwards) as approaching Mr Barnes, withMr Grace approaching him and taking his bag. He would not budge from that.Mr Barnes identified Mr Edwards as approaching Mr Tosh, and Mr Grace as the manwho punched Mr Barnes and then stole Mr Tosh's bag. Mr Membery rememberedonly one of the men having facial tattoos, and that that person punched one of thecomplainants and stole the bag. But both Messrs Grace and Edwards are faciallytattooed, and the evidence was that they were fairly similar height and build.[17] Thirdly, as to how long it all took. Mr Membery thought that incident couldhave taken five to 10 minutes, and probably 15. Mr Tosh (who got the time of daywrong in evidence) thought it only took about one minute. Mr Barnes thought that theincident was over within 30 seconds of Mr Edwards arriving.[18] Mrs Stevens submitted for Mr Edwards that the evidence of Mr Barnes shouldbe preferred as more reliable, and that of Mr Tosh and Mr Membery rejected becauseof Mr Tosh's confusion as to identity, and Mr Membery's confusion as to timing.[19] In a criminal trial, particulars of events may vary between witnesses.Traumatic events commonly produce eyewitness error. Here, Messrs Grace andEdwards had similar builds and superficially similar facial appearances, so there wasscope for confusion as to which of them was doing what. The essential task for thejurors was to isolate the elements of the offence alleged and ask whether the evidenceleft them sure as to guilt on each element. Inconsistencies in evidence may leave ajuror with uncertainty as to one or more elements. Or it may cause the juror to doubtthe reliability or credibility of a witness, so that that witness's evidence is eitherdisregarded or downgraded in addressing the essential task. But after undertaking thatexercise the question remains: is a broadly consistent evidential substratum left fromwhich the jury could legitimately be sure of the defendant's guilt?[20] In this case, a sufficient evidential substratum does exist for conviction.All three witnesses described two men together at a time when the robbery remainedin progress. That certainly was the common account of Messrs Tosh and Membery.Mr Barnes' evidence was that Mr Edwards arrived later. But his evidence does notreally help Mr Edwards. Mr Barnes still said that Mr Edwards demanded wallets, andalso supported Mr Grace by getting "beside or behind" the complainants. Given thatevidence, it is immaterial whether the bag had been taken before Mr Edwards joinedin, that being the point Mr Barnes was unsure of. None of the witnesses accepted thatthe robbery was a "one man job".[21] Although the witnesses contradicted each other in certain particulars, they wereconsistent about the threats and demands being made by both men, includingMr Edwards. The inconsistencies in detail did not undermine the essential Crowncase. Nor did it create a glaring improbability. Despite the differences, the jury wasentitled to regard the evidence of the three Crown witnesses as credible, their essentialsubstratum evidence as to Mr Edwards' participation in the robbery as reliable, andthe evidence of Mr Grace as unreliable. The inconsistencies between the Crownwitnesses were not so substantial as to displace the common evidential substratum.[22] The inconsistencies in evidence were placed squarely before the jury indefence counsel's closing address. The jury was invited to doubt the accounts givenby the Crown witnesses, and correspondingly to give credence to that given byMr Grace. The Judge drew attention to these matters in his summing-up. Nocomplaint is made about the terms of that summing-up.[23] The jury was, therefore, entitled to be sure that Mr Edwards was acting togetherwith Mr Grace when Mr Grace robbed Mr Tosh, and shared his intent to rob.Result[24] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent