DARLING v R [2022] NZCA 504

DARLING v R [2022] NZCA 504 [21 October 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA636/2021[2022] NZCA 504BETWEEN KANE STUART DARLINGAppellantAND THE KINGRespondentHearing: 16 August 2022Court: Collins, Duffy and Edwards JJCounsel: A J D Bamford and E J Riddell for AppellantI S Auld and T C Didsbury for RespondentJudgment: 21 October 2022 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal is allowed.C The conviction for aggravated robbery is quashed. No retrial is ordered.D The record of the first warning given to the appellant by the District Courtis cancelled.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Mr Darling and Mr Anderson originally faced a joint charge of aggravatedrobbery pursuant to s 235(a) (robbery causing grievous bodily harm) and s 66(1) ofthe Crimes Act 1961. Mr Darling also faced charges of kidnapping, possession of anoffensive weapon and conspiracy to supply methamphetamine. These charges aroseout of an altercation in a car at a beach in Nelson on 16 November 2018.[2] On 3 December 2019 Mr Darling received a sentence indication on anamended charge of aggravated robbery pursuant to s 235(b) of the Crimes Act (robberytogether with any other person), and possession of an offensive weapon. He acceptedthat sentence indication and pleaded guilty to those two charges. Mr Darling wassentenced to four months' community detention and nine months' supervision. Thekidnapping and conspiracy to supply methamphetamine charges were withdrawn.[3] Mr Anderson pleaded not guilty to the charge of aggravated robbery pursuantto s 235(a) of the Crimes Act (robbery causing grievous bodily harm). Following ajury trial, he was acquitted of this charge and others he faced at the time.[4] Mr Darling seeks to appeal his conviction for aggravated robbery. The appealis advanced on the grounds that there is no reasonable basis for the conviction givenMr Anderson's acquittal at trial. Mr Darling also relies on the circumstances in whichthe guilty plea was entered.The offending to which Mr Darling pleaded guilty[5] The following is taken from the summary of facts to which Mr Darling pleadedguilty.[6] There were two complainants of the offending. On 15 November 2018 theytravelled to Nelson from Auckland and arranged to meet up with Mr Anderson.[7] Mr Darling met with Mr Anderson and the two complainants later in the dayand drove them around in his car. In the early hours of 16 November 2018 the groupvisited a local hotel where the female complainant won several hundred dollars froma pokie machine. After going their separate ways, the group gathered again atTahunanui Back Beach later that morning.[8] The complainants got into Mr Darling's car. Mr Darling was driving andMr Anderson was seated in the rear seat behind him. The male complainant wasseated in the front passenger seat and the female complainant was seated behind him.[9] While they were driving, Mr Anderson leaned forward and attacked the malecomplainant grabbing him around the head and striking him repeatedly in the head andface. Mr Darling struck the male complainant also. While this was happening, bothMr Darling and Mr Anderson were yelling at the complainants to hand over theirphones and bags.[10] Mr Darling slowed the car and at this point the male complainant dived out inan attempt to avoid being further assaulted. The male complainant saw that his partnerhad remained in the car and, concerned for her safety, chased after the car on foot.[11] The female complainant tried to open the door and get out, but Mr Andersongrabbed her and prevented her from doing so. The car drove further down the roadbut slowed which allowed the male complainant to catch up with it. He climbed backinto the moving vehicle through the still open front passenger door in an attempt toget to his partner. At this point, Mr Anderson produced a knife, leaned forward fromthe back seat and proceeded to stab the male complainant repeatedly in the right sideof his head, face, neck and body. Mr Darling joined in the assault by striking the manto his head.[12] The car came to a stop. The female complainant, fearing further attacks, gaveboth men her phone and bag as they had demanded, and managed to get out of the car.The male complainant also managed to escape and ran after his partner.[13] Members of the public who saw the incident called police who located bothcomplainants hiding in a nearby building and rendered medical assistance to them.[14] Mr Darling and Mr Anderson were located soon after by police patrols. Thecar had been put through a carwash to remove blood from the exterior and interior. Abroken knife blade with blood on it was recovered from the rear passenger footwell ofthe car. Property belonging to the complainants was also located in the car.[15] When found by police, Mr Anderson was carrying a backpack which containeda black-handled knife with part of the blade broken off. When Mr Darling wassearched by police, a set of knuckledusters was removed from his pockets.[16] The male complainant was hospitalised and received multiple deep lacerationwounds to his head, neck, face and right side which required suturing.Events leading up to the plea of guilty[17] Mr Darling was originally charged with aggravated robbery causing grievousbodily harm (ss 235(a) and 66(1) Crimes Act), kidnapping, conspiring to supplymethamphetamine and possession of an offensive weapon (knuckledusters). He wascharged jointly with Mr Anderson for the first three of these charges.[18] Mr Darling was initially remanded in custody, and was then granted EM bailon 18 March 2019. Mr Darling breached his EM bail on several occasions meaninghe was remanded in custody for periods of time while other suitable addresses werefound.[19] The District Court file records a sentence indication being given on 18 April2019. Correspondence from the prosecution indicates that the basis of the sentenceindication was that Mr Darling would be charged as an accessory after the fact to theaggravated robbery by Mr Anderson; conspiring with Mr Anderson to supplymethamphetamine; and possession of knuckledusters. Because Mr Anderson did notaccept his indication, resolution of the charges did not occur.[20] Mr Zintl was assigned as Mr Darling's lawyer in July 2019. Mr Zintl tookinstructions from Mr Darling on a proposal made by the Crown to resolve the charges.The proposal was that Mr Darling would plead guilty to aggravated robbery on a"together" basis (s 235(b) Crimes Act), and to the charges of possession of anoffensive weapon, and conspiracy to supply methamphetamine. The kidnappingcharge would be withdrawn.[21] Mr Darling was on bail at this time. He was clear that he did not want to seeka sentence indication on the offer and preferred to go to trial. The account of eventsgiven by Mr Darling to Mr Zintl was exculpatory. He acknowledged being the driverof the car but denied any assaults, and denied having any knowledge of the knife, orwhat Mr Anderson's intentions were at the relevant time. On Mr Darling's account,the male complainant was the aggressor and there was no robbery or detainment.[22] Prior to call-over in the Nelson District Court on 31 October 2019, Mr Zintlagain raised with Mr Darling the option of seeking a sentence indication on the Crownproposal made in July 2019. Mr Darling was adamant that the matter should proceedto a jury trial. However, he subsequently reconsidered his position when it becameapparent that there were no trial dates available for the rest of the year. Given the timeMr Darling had spent remanded in custody and on bail, there was a real risk that thedelay to trial could mean he would end up serving more time on remand than hisultimate sentence. On this basis, Mr Zintl advised seeking a sentence indication, andMr Darling agreed.[23] The sentence indication was set down for 3 December 2019. By this time,Mr Darling's bail had been revoked due to concerns about the presence of a six-month-old baby at the address. Mr Darling was remanded in custody. A fresh application forEM bail to Mr Darling's mother's address was listed for hearing on the same day asthe sentence indication. An EM bail report prepared for that application notedopposition to EM bail due to Mr Darling's 15-year-old sister living at the address.[24] The sentence indication was given on 3 December 2019. The basis of thesentence indication was that Mr Darling would plead guilty to aggravated robbery(s 235(b)) and possession of an offensive weapon (knuckledusters). The other chargeswould be withdrawn.[25] The Judge made it clear in the sentence indication that Mr Darling would besentenced on the basis that the aggravated robbery was at Mr Anderson's instigation,and that Mr Darling was not aware of the knife that Mr Anderson used. The Judgeconsidered that Mr Darling had joined in what was happening and his culpability wassignificantly less than that of Mr Anderson.[26] Applying a discount of 25 per cent for the guilty plea, and a small discount fortime spent on EM bail, the indicated sentence was approximately 22 months'imprisonment, allowing a sentence of home detention to be considered. Regarding theEM bail application, the Judge said that if Mr Darling accepted the sentenceindication, he would grant him EM bail pending sentence. Sentencing was set downfor 18 February 2020.[27] After speaking with Mr Zintl about his various options, Mr Darling agreed toaccept the sentence indication. In an affidavit filed for the appeal, Mr Darlingexplained that he made that decision because he was desperate to be released fromcustody. When giving evidence for this appeal he explained that he understood that ifhe did not accept the sentence indication, it would be unlikely that he would be bailedprior to sentencing. That would mean that he would remain in prison over theChristmas break, and for another few months.[28] Mr Darling was finding prison particularly difficult. He says he was subjectedto sexual and physical abuse by those who had discovered he was gay. Mr Darlingalso suffers from depression and anxiety for which he was receiving medication.Mr Darling says that his experiences in prison left him suicidal.[29] Mr Darling appeared for sentencing on 18 February 2020. He was sentencedto four months' community detention and nine months' supervision.1 The conditionsof supervision required Mr Darling to attend and complete an appropriate drug andalcohol programme to the satisfaction of a probation officer. In sentencingMr Darling, the Judge observed that Mr Anderson was a sophisticated and embeddedmember of the criminal fraternity in Nelson, and he considered Mr Darling to be verymuch out of his depth.2[30] On 20 July 2020, Mr Darling was re-sentenced to 90 hours' community workand nine months' supervision for the aggravated robbery conviction.31 R v Darling [2021] NZDC 22182 at [7]–[8].2 At [1].3 Police v Darling [2020] NZDC 27657 at [13]–[14].Mr Anderson's trial[31] Mr Anderson's trial started on 1 September 2020. He was charged withaggravated robbery causing grievous bodily harm (ss 235(a) and 66(1)) and woundingwith intent to cause grievous bodily harm in the alternative. He was also charged withkidnapping. Mr Anderson pleaded guilty to the charge of conspiring with Mr Darlingto supply methamphetamine, and to the charge of offering to supplymethamphetamine.[32] The Crown opened its case in line with the summary of facts. In describingthe alleged offending to the jury, the Crown prosecutor said that Mr Darling had joinedin. The Crown also said that the robbery was carried out by two or more persons actingtogether, namely Mr Anderson and Mr Darling.[33] The defence case at trial was that it was the male complainant who brought theknife to the car, and that he was the one who had attacked Mr Darling that morning.The injuries sustained by the male complainant were said to have occurred during thecourse of a struggle over the knife in the car. The defence case was that Mr Andersondid not intentionally apply or use the knife to cause the injuries that the malecomplainant suffered.[34] In closing arguments, the defence put particular emphasis on a Crown witness,Ms Edmonds, who was walking her dog at the beach at the time. She described seeinga man standing near the slow-moving car, and saw him get into it and attack the driver.That was consistent with the defence theory of the case which was that the malecomplainant was the aggressor. It was also consistent with the account Mr Darlinggave to Mr Zintl.[35] Before the jury retired, the Judge amended the charge of aggravated robberyagainst Mr Anderson. He removed the reference to Mr Darling, and the s 66(1)component. The amended charge read: that Rueben James Anderson on 16 November 2018 at Nelson robbed[female complainant] of her handbag and at the time of such robbery causedgrievous bodily harm to [male complainant].[36] Mr Anderson was found not guilty of all three charges.Extension of time[37] The appeal against conviction was filed approximately 19 months out of time.[38] Mr Darling has filed an affidavit explaining that he did not become aware ofMr Anderson's acquittal until Corrections applied to re-sentence him. It was at thistime that his lawyer informed him he may have a viable ground of appeal in light ofMr Anderson's acquittal. There were further delays with the COVID-19 lockdown inAugust and September 2021. The notice of appeal was filed on 28 October 2021. Weare satisfied that the delay is adequately explained.[39] The Crown opposes the application for an extension of time on the groundsthat the appeal has no merit and the interests of justice weigh against an extension oftime to bring the appeal. The merits of the appeal are considered next.Approach on appeal[40] Mr Darling appeals his conviction under s 229(1) of the Criminal ProcedureAct 2011. This Court must allow the appeal if satisfied that a miscarriage of justiceoccurred that created a real risk that the trial outcome was affected.4[41] It is only in exceptional circumstances that an appeal against conviction willbe entertained following a guilty plea.5 The appellant must show that a miscarriage ofjustice will result if their conviction is not overturned.6[42] There are four accepted categories where a miscarriage may arise followingthe entry of a guilty plea.7 One of which is where, on the admitted facts, the defendantcould not in law have been convicted of the offence charged.8 Convictions have4 Criminal Procedure Act 2011, s 232.5 R v Le Page [2005] 2 NZLR 845 (CA) at [16].6 At [16].7 R v Le Page, above n 5, at [17]–[19]; and R v Merrilees [2009] NZCA 59 at [34]–[35].8 R v Le Page, above n 5, at [18].sometimes been set aside under this category where a joint or principal offender hasbeen acquitted of the same offence.[43] In Stewart v R, the Supreme Court outlined the principles applicable to suchcases:9[5] It will not always be the case that a secondary party must also beacquitted in the absence of the conviction of a principal offender. There willbe circumstances in which a jury can safely convict a person of secondaryliability for an offence notwithstanding that the evidence, or fresh evidence,leaves reasonable doubt as to guilt on the part of the principal offender. Thismay be the case where, for instance, it is certain that the offence took placebut the identity of the principal offender is unknown or in doubt, yet theidentity of the secondary party is clear. It may be the case where the principaloffender cannot be found guilty by reason of infancy, insanity or death, or isotherwise not amenable to prosecution. And it may also be the case where thecriminal liability of the parties is separately established, especially on the basisof different evidence — if, for example, evidence against the secondaryoffender is inadmissible against the principal offender.[6] However in circumstances where, as here, the successful appeal andsubsequent s 347 discharge of the principal offender indicates reasonabledoubt about whether the alleged primary offending took place at all, theconviction of a secondary party for encouraging that offending must beconsidered unsustainable. In such circumstances the acquittal of the principalimplies that the elements of the offence cannot be proved, so that the primaryoffence cannot be said to have been committed, especially where the acquittedperson was the only possible principal. If no crime occurred, the secondaryparty cannot be said to have helped the principal offender to commit it.(footnotes omitted)[44] In McIntyre v R, the appellant pleaded guilty to a charge of accessory after thefact to murder.10 The alleged murderer pleaded not guilty and was subsequentlyacquitted at trial. The appeal was allowed. This Court said:[2] To succeed on a charge of accessory after the fact to another crime theCrown must prove the substantive crime was committed, although it is notnecessary that a person be convicted of that substantive crime. In thecircumstances, the Crown conceded that the successful self-defence claim bythe alleged primary offender has the consequence that there was no murder.Accordingly, Mr McIntyre cannot be an accessory to a murder that did notoccur.9 Stewart v R [2011] NZSC 62, [2012] 1 NZLR 1.10 McIntyre v R [2017] NZCA 579, [2018] NZAR 43.[45] This Court came to the same conclusion in Jones v R.11 Mr Jones had beenconvicted with two others as a party to a charge of blackmail. The conviction of theprincipal offender, Mr Clutterbuck, was subsequently quashed by the Court of Appealand no retrial was ordered. Applying the principles in Stewart, the Court of Appealfound that Mr Clutterbuck's successful appeal called into question the certainty andsafety of the jury's verdict regarding Mr Jones. Mr Jones' appeal was allowed and theconviction quashed.[46] In R v Darby, the majority of the High Court of Australia held that the acquittalof one defendant on appeal for conspiracy to rob did not affect the conviction of theother co-conspirator.12 The majority departed from old law which found bothdefendants must be either acquitted or convicted in those circumstances and set outthe following approach:13In the light of the wealth of both academic and judicial consideration that hasbeen devoted to this topic in recent years, we have no doubt that this Courtshould now redirect the common law of Australia on to its true course. Itshould determine that the conviction of a conspirator whether tried togetherwith or separately from an alleged co-conspirator may stand notwithstandingthat the latter is or may be acquitted unless in all the circumstances of the casehis conviction is inconsistent with the acquittal of the other person. In ouropinion such a determination will focus upon the justice of the case ratherthan upon the technical obscurities that now confound the subject.[47] The majority held that in cases where there was no material distinction in theevidence against both defendants, a trial direction to either convict or acquit bothaccused would continue to be appropriate "not because of any technical rule butbecause of the circumstances of the case".14[48] There are cases where apparently inconsistent verdicts have been explained bythe evidence. In R v Wahrlich,15 Mr Wahrlich was charged together with another man,Z, of causing grievous bodily harm to four people. Mr Wahrlich was convicted at trial,but Z was acquitted in a separate trial. This Court considered there were sufficientdifferences in the evidence called at each trial to explain the different verdicts. The11 Jones v R [2014] NZCA 613.12 R v Darby (1982) 148 CLR 668.13 At 678.14 At 678.15 R v Wahrlich [1976] 2 NZLR 9 (CA).Court repeated the principle that inconsistent verdicts from different juries in respectof defendants charged with the same offence does not necessarily render the guiltyverdict unsafe.[49] Similarly, in R v Zaman,16 the United Kingdom Court of Appeal dismissed anappeal from Mr Zaman who had pleaded guilty to assisting the principal offender toleave the scene of an alleged conspiracy to supply heroin and providing him withshelter. The principal offender was later acquitted of the principal offence. The Courtnoted that the commission of the offence by the principal offender might be establishedin the case of an assister even though it was not established against the principaloffender. For example, evidence admissible against the assister may not be admissibleagainst the principal offender, or there may be additional evidence discoveredfollowing the principal offender's acquittal, but before the assister's trial, which putthe commission of the offence by the principal offender beyond doubt.17[50] The Court was satisfied there was sufficient evidence by which Mr Zamancould have obtained the necessary knowledge to establish the offence against himirrespective of what the prosecution was able to adduce at trial.Is there a miscarriage of justice?[51] We start by considering whether Mr Darling's plea of guilty to the charge unders 235(b) and Mr Anderson's acquittal of the charge under s 235(a) can be reconciled.[52] The aggravating feature of a robbery under s 235(b) is the presence of two ormore people. It is the collective element of a charge under this section thatdistinguishes the offence from aggravated robbery under s 235(a) and s 235(c).To prove the offence under s 235(b), the persons involved in the offending (of whichthere must be at least two) must be acting in concert and share a common intention torob. Each must be complicit in the joint enterprise.18 As this Court explained in16 R v Zaman [2010] EWCA Crim 209, [2010] 1 WLR 1304.17 At [18].18 R v Feterika [2007] NZCA 526 at [24]–[34] citing R v Gruenwald CA99/04, 9 August 2004;R v Galey [1985] 1 NZLR 230 (CA); and The Queen v Joyce [1968] NZLR 1070 (CA). See alsoR v Greening (1990) 6 CRNZ 191 (HC) at 192. These cases concerned a legislative provisionwhich differed in some respects to s 235(a), but these differences are irrelevant to the commonintention element of the offence.R v Feterika, that means if two or more persons are present and one robs without theothers anticipating or willing that, aggravated robbery under s 235(b) will not havebeen proved.19[53] These elements differ to those of aggravated robbery under s 235(a). To provethat charge, the Crown must prove there was a robbery and grievous bodily harm.Importantly, there is no requirement to show the presence of two or more people, andno requirement to show a common intention.[54] Mr Anderson's acquittal draws into question whether there was a robbery atall. Applying the reasoning in McIntyre to this case, Mr Darling cannot be found guiltyof committing an aggravated robbery together with Mr Anderson if there is no proofthat a robbery was committed.20[55] The not guilty verdict also suggests there is reasonable doubt about whetherMr Anderson had the necessary intention to commit a robbery. But even if the jurywere satisfied of this element, it is entirely different to the common intention requiredto prove the offence under s 235(b). If Mr Anderson did not have an intention to acttogether in concert to commit the robbery, then an essential ingredient of the offenceagainst Mr Darling cannot be proved.[56] Furthermore, this is not a case where there is a different pool of evidenceagainst Mr Darling and against Mr Anderson which might explain the different resultson the respective charges each faced. We have not been pointed to any evidence thatwould have been admissible against Mr Darling which was not also admissible againstMr Anderson. The pool of evidence against both defendants was the same.[57] Similarly, this is not a case where the robbery could have been undertaken bysomeone else. No parties, other than Mr Darling and Mr Anderson, were alleged tohave been involved. Further, the Crown's case consistently linked Mr Darling'soffending to that of Mr Anderson, with the latter being the primary offender in thiscase. That was reflected in the fact that both parties were originally charged under19 R v Feterika, above n 18, at [34].20 McIntyre v R, above n 10.s 235(a) and s 66(1), the sentence indications given at the time, and the way the Crownopened its case at trial. Given the presentation of the Crown case, it is inconceivablethat Mr Anderson would have been found not guilty at trial, but a verdict of guiltyreturned against Mr Darling.[58] The circumstances in which Mr Darling's plea were entered add weight to therisk of miscarriage in this case. Mr Darling was under immense pressure at the timehe entered his plea of guilty. This was due to the difficulties he was experiencing incustody due to his sexual orientation and mental health.[59] In addition, Mr Darling had already spent significant time on remand and onbail while waiting for a trial date to be allocated. Indeed, given the delays in obtaininga trial fixture, there was a significant risk that his time spent on remand would exceedthe likely sentence he would receive. The fact that this was operative on Mr Darling'smind is evident in his firm instructions to plead not guilty and not to seek a sentenceindication, which changed when it became obvious that a trial date was still some timeaway.[60] We emphasise that we cannot find any evidence of counsel error in this case.Mr Zintl properly advised Mr Darling before the guilty pleas were entered. However,we accept that Mr Darling was concerned that he may have to remain on remandpending sentence which was several months away and was over the Christmas period.The EM bail report had raised some issues with the proposed EM bail address and itappears that Mr Darling may have reasonably apprehended a risk that the applicationwould be declined. This just added to the pressure on Mr Darling to enter a guiltyplea.[61] To recap, we consider Mr Anderson's acquittal means that Mr Darling couldnot, in law, have been convicted of an offence under s 235(b). That is sufficient toestablish a miscarriage of justice despite his guilty plea, but the circumstances in whichhe entered the guilty plea add weight to that conclusion. We have found the appealhas merit, therefore the application for an extension of time should be granted, and theappeal allowed. As Mr Darling has now served his sentence, we make no order for aretrial.Result[62] The application for an extension of time is granted.[63] The appeal is allowed.[64] The conviction for aggravated robbery is quashed. No re-trial is ordered.[65] The record of the first warning given to the appellant by the District Court iscancelled.Solicitors:Bamford Law, Nelson for AppellantCrown Law Office, Wellington for Respondent