ROBERTS v R [2020] NZCA 213

ROBERTS v R [2020] NZCA 213 [4 June 2020]NOTE: PUBLICATION OF ANY INFORMATION THAT IDENTIFIES, ORTHAT MAY LEAD TO THE IDENTIFICATION OF, JURORS PROHIBITEDBY S 32B OF THE JURIES ACT 1981.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA448/2019[2020] NZCA 213BETWEEN KENNETH RAYMOND MATIUROBERTSAppellantAND THE QUEENRespondentCA458/2019BETWEEN HAYLEY PANIA KIWIAppellantAND THE QUEENRespondentHearing: 11 May 2020Court: Collins, Duffy and Edwards JJCounsel: W T Nabney for Appellant RobertsA F Rickard-Simms for Appellant KiwiE J Hoskin for RespondentJudgment: 4 June 2020 at 4.00 pmJUDGMENT OF THE COURTA The appeals against conviction are dismissed.B The appeals against sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Roberts, Ms Kiwi and Mr Kuka were convicted of wounding with intent tocause grievous bodily harm following a trial by jury in the District Court at Tauranga.1The victim was Ms Kiwi's brother. All defendants were sentenced by Judge Ingramto 6 years' imprisonment.2 Ms Kiwi and Mr Roberts appeal their convictions andsentence. There is no appeal from Mr Kuka.[2] There is one ground of appeal against conviction that is pursued by Ms Kiwiand Mr Roberts. They contend a miscarriage of justice occurred when the Judgedeclined an application from all defendants to discharge the jury pursuant to s 22(3)of the Juries Act 1981.[3] Ms Kiwi also appeals her conviction on the grounds that there was insufficientevidence to convict her as a party to the offending.[4] The appeals against sentence contend that the sentences imposed uponMs Kiwi and Mr Roberts were manifestly excessive.Background[5] Ms Kiwi and Mr Kuka are partners. At the relevant time, they were living in afamily home owned by Ms Kiwi's mother, Mrs Kiwi. Others who lived in the familyhome included Mrs Kiwi's partner and the two children of Ms Kiwi and Mr Kuka. Onoccasions, Ms Kiwi's brother also stayed in a bedroom in the house where he storedhis possessions.[6] Ms Kiwi and Mr Kuka became concerned that Ms Kiwi's brother was usingmethamphetamine in the Kiwi family home. Ms Kiwi sent a Facebook message to herbrother's girlfriend remonstrating about his use of methamphetamine and demanding1 Crimes Act 1961, s 188(1): maximum penalty of 14 years' imprisonment.2 R v Kiwi [2019] NZDC 17314.money to clean up the room that was occupied on occasions by her brother. Ms Kiwisaid that if there was a failure to comply with her demands, then she would "destroy"Mr Kiwi and his girlfriend.[7] Mr Kiwi went to the family home to collect his possessions with the intentionof moving out. There he was met by Ms Kiwi, Mr Kuka and Mr Roberts, an associateof Mr Kuka. All defendants attacked Mr Kiwi. Mr Kuka was armed with a baseballbat that he used to strike Mr Kiwi. Mr Roberts then took the baseball bat and struckMr Kiwi several times with sufficient force to break his forearm. Throughout theassault Ms Kiwi kicked, scratched and punched her brother.[8] At trial, Ms Kiwi maintained she was not involved with the assault and that shewas in the kitchen, away from the attack. Mr Roberts initially maintained he also wasnot present, but his account changed to an acceptance that he was present but notinvolved in the attack upon Mr Kiwi. Mr Kuka denied using a baseball bat and claimedMr Kiwi's arm was broken during the course of Mr Kuka trying to restrain Mr Kiwi.The jury[9] Early in the trial the jury was reduced to 11 members when one of their numberbecame ill.[10] On the third day of the trial a juror, whom we will refer to as "J", raised aconcern with the Judge about a person she had seen in the back of the Court. The notefrom J read:Someone I know entered the court room in the last period of court. I grew upwith him, he knows me, my partner, my family and where I live. I know him,his record, his gang relationship etc. We are by no means on bad terms,we have always had friendly conversation in passing but I was shocked and alittle uncomfortable seeing him here. I don't trust him. I would like youradvice, and seek reassurance from you.[11] After discussing J's concerns with counsel, the Judge isolated the juror fromthe rest of the jury and asked her some questions, the answers to which establishedthat she had mentioned to the other jurors her concerns about the person she had seenin the back of the Court.[12] All defence counsel urged the Judge to discharge the jury. They submitted thatthe criteria for discharging a jury prescribed in s 22(3)(a) of the Juries Act weresatisfied. That sub-section provides:22 Discharge of juror or jury(3) The court may also discharge the jury without it giving a verdict if—(a) a casualty or emergency makes it, in the court's opinion,highly expedient for the ends of justice to do so[13] Judge Ingram did not accept the submission that the jury needed to bedischarged. He was satisfied that as the trial had no overtones of gang involvement,he could address any concerns the jury may have with a firm direction. The Judgewas, however, satisfied that J should be discharged.[14] The Judge explained:3The complete absence of gang overtones, and the entirely familial nature ofthe dispute left me satisfied that in this case an adequate jury warning couldbe relied upon to assuage the fears expressed by the defence, and that thestatutory threshold test of "highly expedient in the interests of justice" had notbeen met. I have on previous occasions used a similar jury direction, whichI have found to be effective by reason of not guilty verdicts being returned.[15] The Judge then gave the jury the following direction:4One of your fellow jurors has raised a concern about possibly recognisingsomeone in the public gallery. The person she may have recognised may haveassociations that left her feeling uncomfortable. Out of an abundance ofcaution I have reached the view that the interests of justice require that she bedischarged, and that we continue with 10 jurors. We do not know whose sideof this family affair, the person in the gallery may or may not be on.I wish to emphasise that no threat to anyone has been made or implied, andthat your safety and security have not been compromised in any way to thebest of my knowledge. No inference should be drawn against any defendant,or any witness, because they have no control over who comes into the publicgallery of a Court such as this. Remember that in the end your task is to assesswhether the evidence proves the guilt of any of these defendants to therequired standard on the charges that they face.3 R v Roberts [2019] NZDC 12111 at [7].4 At [8].[16] On the fourth day of the trial another incident occurred. On this occasion jurorsbecame concerned when they saw Mr Roberts pass a note to a Corrections Officer,who in turn passed that note to a man in the public area of the Court. That man gaveMr Roberts a "thumbs up" gesture and patted his chest. The jury conveyed to theJudge their concern about J. The jury's note to the Judge said:All 10 of the jurors saw [Mr Roberts] pass a written note over the top of thedefendants box to the corrections officer. He read the note and passed it to ayoung male member of the public gallery. The male read the note and madea hand gesture of "thumbs up" patted his chest towards [Mr Roberts].The jury is concerned with the content of the note and for the safety of [J], aswe believe this is the male for whom she was concerned about her safety ashe lives near her.[17] The Judge immediately inquired into the note that had originated fromMr Roberts. It transpired it was innocuous and concerned Mr Roberts' mother, whowas unwell. The Judge then instructed the jury that:5Investigations have revealed that the note was all about Mr Roberts mother,who was taken ill yesterday. The note which was read by the CorrectionsOfficer was about [his] mother not being able to attend Court to see whathappened and some other matters about a couple of other young women. Ithad absolutely nothing to do with the safety of any juror.It points out something that I am going to cover for you again in my summing-up and it is this. You have drawn an inference from something that you haveseen. The inference that you have drawn is that there is a security issue ofsome kind involving somebody in the courtroom or elsewhere and hassomething to do with these defendants. That security issue is obviouslyplaying upon your minds.The direction I am going to give you will be that, while you are entitled to acton logical inferences, those inferences have to be based on facts which areproperly proved. If you find certain facts proved you may very well feeljustified in drawing further conclusions, even though you do not have directevidence about them. But, the inferences have to be proper inferences andhave to be drawn from proven facts. Not speculation and not guesswork.Ladies and gentlemen, I suggest to you this is a clear example of jumping toconclusions in the face of behaviour which might have security implications,but which on investigation it turns out there are absolutely no securityimplications. I want to assure you that the police have made thorough andproper enquiries, that there has been no contact with the other juror, who isperfectly safe and perfectly happy.5 R v Kiwi DC Tauranga CRI-2017-070-4252, 27 June 2019 at [4]–[12].There is no hint, whisper or suggestion from any material that has reached methat any of you, or her, are in the slightest danger, or under surveillance, or inany way facing any security threat from anybody. Nothing at all has happenedwhich cause the police any concern. The information that I have available tome follows police enquiries, and I have spoken to the young man to whom thenote was passed, and I have spoken to Mr Roberts.I am completely satisfied there is an entirely innocent explanation for thethings that have caused you concern in relation to this. I am very anxious toensure that you understand these defendants are entitled to a fair trial. A fairtrial means you having an open mind about what you have seen and heard inthe courtroom. As I said earlier, and I repeat, folks there is nothing at all thathas happened in this courtroom which causes me the slightest concern inrelation to your safety and security. No one is trying to influence you. No oneis trying to threaten you. No one is following you. No one is going to doanything in relation to you. There is simply nothing to suggest any of that.Ladies and gentlemen I want to emphasise to you, you need to have a bit of athink and a talk amongst yourselves about this particular issue because I wantto be sure that these folk are going to get a clear and open mind when youconsider the issues that you are called upon to decide in the trial. We are nowvery close to the end of the trial. I do not think it will finish today, I think Iwill be summing-up tomorrow morning but we are very, very close to the endof the trial now.I have plenty of security resources, some of which you cannot see but whichare spread around the building and I have other ways of ensuring your safetyand security. Nothing that I have seen and heard leaves me with the slightestconcern. My biggest concern is that you may not have an open mind aboutthe case.So I am giving you a formal direction that you are to bring an open mind tothe case and not to read into anything that has happened in the courtroom, nohint whisper or suggestion of a threat to you in your role as jurors.[18] The Judge summed up to the jury on the fifth day of the trial. After instructingthe jury of the need for them to reach a verdict uninfluenced by prejudice or sympathythe Judge told the jury:Ladies and gentlemen, I want to raise the topic of "prejudice" with you. I havealready spoken to you about it but it is important and I want to cover it again.The evidence, as a whole, makes it clear that perhaps one or more of thedefendants may know or be related to some people who may have gangassociations. But, no one is on trial for that. This trial is not about gangs. Itis not about drugs. Indeed, it is not about the backgrounds of the peopleinvolved. Those things are relevant in terms of perhaps understanding whathas occurred.But the trial is, essentially, about a family dispute that ended in violence anda broken arm. It is important that you focus on the task in hand. The fact thatthe defendants may have some relatives or may be associated with gangmembers does not alter the core of the incident which was indubitably a familydispute arising, at least in part, from the dispute between brother and sister.No one's guilty just because they might know or be related to or be friendswith someone who may or may not be a gang member. Nor for that matter arethey guilty because they might live or speak in a way that you mightdisapprove of. Do not judge them by their looks or the looks of people in thecourtroom. You must not decide that any one of them is guilty simply becauseyou think someone who might associate with a gang member is the kind ofperson who might commit this type of offence.Your task is to assess whether the evidence proves each defendant's guilt onthe charge or charges they face, to the required standard of proof beyondreasonable doubt. Of course, you will recall that I spoke to you yesterday, andindeed the day before, about concerns raised over safety and security. Out ofan abundance of caution I have discharged one juror because of concerns thatshe expressed and, now, we have got just 10 of you as jurors.I emphasise to you that I have got no causes for concern and I remind you ofthe overriding need to approach your task with an open mind – uninfluencedby prejudice or sympathy. I remind you no inference should be drawn againstany defendant, nor should you make any assessment of any witness on thebasis of a possible but unproven and irrelevant gang association. Remember,in the end your task is to make an unbiased assessment of whether the evidenceproves the guilt of any of these defendants to the required standard of proofbeyond reasonable doubt on the charge or charges they face.First ground of appeal against conviction[19] Counsel for Ms Kiwi and Mr Roberts contend that the trial Judge erred whenhe decided not to discharge the jury and that his failure to do so caused a miscarriageof justice. It was submitted that the jury were hyper-vigilant about persons comingand going from the courtroom and "that the jury were clearly concentrating on thedefendants and the public gallery as opposed to observing the witnesses givingevidence". There appear to be two limbs to this ground of appeal. It was submittedbefore us that the jury should have been discharged because:(a) they were harbouring prejudices against the defendants based onassumptions about their connections to a gang and/or the jury's fearabout their safety and the safety of J; and(b) they were failing to pay proper attention to the evidence.[20] It was argued on behalf of Ms Kiwi and Mr Roberts that the Judge's directionsto the jury were inadequate and would only have "served to heighten the jury's concern about their safety and to increase their concentration on the public gallery andthe defendants rather than the evidence".[21] Mr Rickard-Simms, counsel for Ms Kiwi, also claimed that the jury were sodistracted with concerns about J and their own safety that they could not fairly turntheir attention to the evidence, resulting in an unfair trial.[22] Mr Nabney, counsel for Mr Roberts, aligned himself with these submissions.[23] In Buddle v R, the Supreme Court considered the test for discharging a jurythen prescribed in s 374 of the Crimes Act 1961.6 Section 22(3)(a) of the Juries Actsubstantially replicates the test in the Crimes Act.[24] As we have previously noted, s 22(3)(a) of the Juries Act permits a Judge todischarge a jury where there is "a casualty or emergency" and where, in the opinionof the Judge, it is "highly expedient for the ends of justice" to take that course.The Supreme Court explained that the most apt definition of "casualty" is "mishap"and, that a casualty or mishap within the meaning of s 22(3)(a) of the Juries Actinvolves something going "wrong with or affecting the trial process". The SupremeCourt cautioned however against giving the term "casualty" a "narrow or limitedconstruction".7[25] While the two incidents involving the jury constituted unforeseen events, theydid not amount to "something going wrong with or affecting the trial process". Nordo we accept the submission that Judge Ingram erred when he concluded "the ends ofjustice" did not require him to discharge the jury. We will explain our reasons forreaching this conclusion by focusing on the two events that underpin the first groundof appeal.[26] In relation to J, we consider it significant that her concern was about a personshe appears to have recognised in the public area of the Court. She expressed noconcerns about the defendants, witnesses or anyone else associated with the trial.Nothing contained in J's note suggested any prejudice towards the defendants.6 Buddle v R [2009] NZSC 117, [2010] 1 NZLR 717.7 At [36].[27] Although the person in the back of the Court was thought to have gangconnections, the trial had nothing to do with gangs. The Judge made this abundantlyclear in his directions to the jury.[28] Thus, while J may have harboured concerns, there was no convincing basisupon which the remaining members of the jury could have thought that there was somegang influence associated with the trial, or that there was any basis for them to beconcerned about their safety.[29] Judge Ingram, who is an experienced trial Judge, was ideally positioned toassess whether or not there was a genuine risk of the jury being unable to dischargetheir duty to ensure the defendants were judged without prejudice or sympathy. Hemade that assessment after acquainting himself with all relevant facts and determinedthe situation by discharging the juror and by providing the remaining members of thejury with a clear and firm direction.[30] The approach taken by the Judge was entirely appropriate. Neither ground thatwe have summarised in [19(a)–(b)] has been demonstrated in relation to the first juryincident.[31] We can see no record of a further application being made by defence counselto have the jury discharged after the second incident involving the jury. Even if suchan application had been made the Judge would have been bound to reject it because itrapidly became clear that any fears the jury had about their security, or the security ofJ were misplaced.[32] The Judge took the correct approach when he inquired into the facts relevantto the second incident and promptly gave the jury a very clear and reassuring direction.There is therefore, in relation to the second jury incident, no substance to thesuggestion the jury were prejudiced towards the defendants. There is also nothing inthe record, nor in the submissions made to us to suggest the jury failed to pay properattention to the evidence. To accept this aspect of the appellant's appeal would involvethis Court engaging in illegitimate speculation about what evidence the jury listenedto and observed.Second ground of appeal against conviction[33] The second ground of appeal against conviction is advanced by Ms Kiwi. Shecontends there was insufficient evidence to convict her of being a party to theoffending.[34] In his summing up the Judge directed the jury to consider Ms Kiwi's guilt orinnocence in the context of s 66(1) of the Crimes Act. The Judge did so by asking thejury to consider whether or not the Crown had established beyond reasonable doubtthat "Ms Kiwi attacked Mr Kiwi as he was being hit with the bat". The Judge furtheremphasised that for Ms Kiwi to be guilty, the jury had to be satisfied that she attackedher brother when he was being struck with the baseball bat "and not at any other time".[35] The evidence to support Ms Kiwi's conviction came primarily from herbrother, who explained how he returned to the family home to retrieve his belongingsafter he and his girlfriend received a threatening Facebook message from Ms Kiwi.[36] Mr Kiwi said that when he arrived at his family home, Ms Kiwi called toMr Kuka and Mr Roberts to come to the house from a shed. Mr Kuka and Mr Robertsdid so. Mr Kuka was carrying a baseball bat. Mr Kiwi explained how he was attackedby Mr Kuka and Mr Roberts and how Ms Kiwi joined the attack. He said Ms Kiwi"end[ed] up coming and screaming, kicking, trying to put her punches in there whileI was fighting all of them ". He said that when he was on the ground Ms Kiwi wastrying to scratch his "eyes out and just swearing and trying to punch [his] face, tryingto kick [his] face" while Mr Roberts was hitting his legs with the baseball bat. Laterin his evidence, Mr Kiwi again said that his sister punched him and was scratching hiseyes while he was being hit with the baseball bat. Mr Kiwi also told the jury thatphotos of his face that were produced in evidence showed scratch marks that had beeninflicted by Ms Kiwi.[37] Ms Kiwi's case was that she went into the kitchen when Mr Kiwi andMr Roberts started assaulting her brother and that she remained in there in a frightenedstate and did not participate in the attack.[38] Ms Kiwi exercised her right not to give evidence. Thus, her guilt or innocencelargely hinged on whether the jury believed Mr Kiwi's version of events.[39] It was for the jury to decide whether or not Mr Kiwi's evidence satisfied thembeyond reasonable doubt that Ms Kiwi attacked her brother in the way he described.[40] The jury, having been properly directed by the Judge, was entitled to concludethat Mr Kiwi's evidence satisfied them beyond reasonable doubt that Ms Kiwi didattack her brother whilst he was being hit with a baseball bat.[41] There is no basis upon which Ms Kiwi's conviction can be considered unsafe.Appeals against sentence[42] The Judge determined the offending by all three defendants straddled the upperlevel of band two and the lower end of band three of the guidelines set out by thisCourt in R v Taueki.8 He therefore adopted a starting point of 8 years' imprisonment.[43] The Judge then reduced the starting point for all three defendants by 6 monthsto reflect their remorse. Mr Roberts' sentence was reduced by a further 6 months toacknowledge his willingness to pay $2,000 by way of reparation. Ms Kiwi's sentencewas reduced by 6 months to reflect her otherwise good behaviour and Mr Kuka'ssentence was reduced by 6 months to take account of the fact that he only becameinvolved in the offending because of Ms Kiwi. The Judge then reduced the sentencesof each defendant by a further 12 months in recognition of the role of Mr Kiwi'sbrother whom the Judge referred to as being "no angel".9[44] Ms Kiwi says that her sentence should be less than 6 years' imprisonmentbecause she was less culpable than Mr Roberts and Mr Kuka.[45] The starting point adopted by the Judge in relation to all three defendants wasappropriate. The offending involved a premeditated serious attack by three adults on8 R v Taueki [2005] 3 NZLR 372 (CA) at [34].9 R v Roberts, above n 2, at [39].one man, who suffered serious injuries. The starting point of 8 years' imprisonmentwas well within the available range.[46] The claim by Ms Kiwi that she was less culpable than her co-offenders iswithout merit. The overwhelming evidence in the trial was that Ms Kiwi played a keyrole in devising the plan to attack her brother to teach him a lesson over his use ofmethamphetamine and that it was Ms Kiwi who influenced Mr Kuka to participate inthe attack.[47] Significantly, Ms Kiwi was found to have attacked her brother while he wasbeing struck with a baseball bat. While the injuries she personally inflicted werecomparatively minor, she nevertheless was a principal instigator of the offending andfully participated in the attack on her brother. In these circumstances, the Judge wasentitled to conclude Ms Kiwi was just as culpable as Mr Roberts and Mr Kuka.[48] We agree with the Crown's comment that Ms Kiwi was the beneficiary of agenerous 12-month reduction in her sentence that the Judge made to reflect the conductof her brother and that the end sentence of 6 years' imprisonment was well within therange that was reasonably available.[49] Mr Roberts does not challenge the starting point adopted by Judge Ingram. Hisappeal against sentence is based on the claim that the Judge "did not give any reductionfor the offer of reparation" made by Mr Roberts. This was not correct as the Judgegave a 6-month reduction to Mr Roberts' sentence to reflect the $2,000 payment heoffered.10[50] We have questioned whether any further reduction was warranted inMr Roberts' case and have concluded that the discount of 6 months for the offer to pay$2,000 by way of reparation was reasonable and consistent with the level of discountupheld by this Court in R v Johnson.1110 At [36].11 R v Johnson [2010] NZCA 168 at [28].[51] The sentences imposed upon Ms Kiwi and Mr Roberts were within the rangethat was reasonable in the circumstances of this case.Result[52] The appeals against conviction are dismissed.[53] The appeals against sentence are dismissed.Solicitors:Pacific Coast Law, Tauranga for Appellant KiwiCrown Law Office, Wellington for Respondent