KARAKA v R [2023] NZCA 283

KARAKA v R [2023] NZCA 283 [7 July 2023]ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYINGPARTICULARS OF G.NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THENAMES OF THE COMPLAINANT AND WITNESS REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA1/2023[2023] NZCA 283BETWEEN SHAIDEN TYLA KARAKAAppellantAND THE KINGRespondentHearing: 14 June 2023Court: Wylie, Thomas and Brewer JJCounsel: D J Matthews for AppellantB Hawes for RespondentJudgment: 7 July 2023 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to appeal against conviction isgranted.B The appeal is allowed.C Mr Karaka's convictions for aggravated robbery and receiving entered on15 November 2018 are set aside.D There is to be no retrial.E Order prohibiting publication of the name or identifying particulars of G.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The appellant, Shaiden Karaka, seeks to appeal convictions for aggravatedrobbery1 and receiving2 which were entered against him on 15 November 2018following a jury trial in the District Court at Christchurch, presided over byJudge G S MacAskill.[2] Mr Karaka's appeal has been brought some four years out of time. He wishesto appeal his convictions because of what he says was trial counsel error. He says thata miscarriage of justice has occurred because the closing address to the jury made byhis counsel, whom we will call G, was woefully inadequate.3 The Crown responsiblyaccepts that the closing address delivered by G did not meet the minimum standardrequired.Background[3] The Crown case was as follows.(a) On the evening of 3 December 2016, Mr Karaka, his stepfather,John Ward, and Joshua Brown, went into a home occupied by thecomplainant, A. The defendants and A knew each other through anassociate. The defendants demanded money from A. They claimed Aowed the money to the associate for services she had provided to A. Inthe process Mr Ward and Mr Brown passed a knife between themselves,pointing it at A and threatening to kill him. They took turns punchingA to his body. They threatened A with violence and weapons. A lay onthe ground at Mr Brown's request and Mr Brown attempted to kick himin the head.1 Crimes Act 1961, s 235(b) — maximum penalty 14 years' imprisonment.2 Sections 246 and 247(a) — maximum penalty seven years' imprisonment.3 We have chosen to refer to Mr Karaka's trial counsel as G, because he is dead, cannot respond tothe implicit criticism or put his version of events before the Court. This does not cause prejudiceto Mr Karaka or the Crown.(b) While Mr Brown and Mr Ward were with A, Mr Karaka took severalitems from A's address and loaded them into the car the defendants weretravelling in. These items were valued at approximately $1,500.(c) Mr Brown told A that he would return in the morning with a pistol andthat he wanted A to pay a further $950 to him. When he was leaving,Mr Ward told A that if he called the police he would "wind up dead".(d) After leaving A's address, Mr Karaka drove past a couple out on thestreet. He stopped his car and asked for a cigarette. While the couplewere distracted, an unknown person entered their property and stole ahandbag containing a cell phone valued at over $1,000. When thepolice went to Mr Karaka's house that afternoon, he attempted to hidethe cell phone under a chair he was sitting on. When he was askedabout the cell phone, Mr Karaka said that he knew nothing about it.[4] Mr Karaka was only 17 years old at the time.[5] Mr Karaka was charged jointly with Mr Ward and Mr Brown. He was initiallycharged with aggravated robbery, threatening to kill4 and receiving. The charge ofthreatening to kill against Mr Karaka was dismissed under s 147 of the CriminalProcedure Act 2011, but the other two charges went to trial. Mr Karaka was foundguilty of aggravated robbery and receiving. Mr Ward was found guilty of aggravatedrobbery and threatening to kill. Prior to trial, Mr Brown was found unfit to stand trialon either charge under the relevant provision of the Criminal Procedure (MentallyImpaired Persons) Act 2003.5[6] At sentencing, Judge MacAskill imposed a sentence of three years and fourmonths' imprisonment on Mr Karaka for the aggravated robbery charge and anadditional sentence of 12 months' imprisonment for an unrelated robbery charge, tobe served cumulatively on the first sentence.6 Mr Karaka was sentenced to onemonth's imprisonment on the receiving charge and to two months' imprisonment on4 Crimes Act, s 306(1)(a) — maximum penalty seven years' imprisonment.5 Section 14. This provision has since been repealed.6 R v Ward [2018] NZDC 24077.an unrelated theft charge, both to be served concurrently. As a result, the end sentencewas one of four years and four months' imprisonment. Mr Karaka has served thesentence.Application for an extension of time for filing the notice of appeal[7] This Court has jurisdiction to hear Mr Karaka's appeal under ss 229 and230(1)(c) of the Criminal Procedure Act.[8] As noted, Mr Karaka's appeal was filed some four years out of time. He seeksan extension of time for filing his appeal. We have considered the application for anextension of time together with the proposed appeal.[9] Whether or not an extension of time should be granted depends on the meritsof the appeal. The ultimate touchstone is the interests of justice.7 There are two broadquestions — first, why was the appeal filed so late, and secondly, does it have merit?[10] Mr Karaka has filed an affidavit. His background is unfortunate. He has beendiagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Fetal AlcoholSpectrum Disorder (FASD). Following his arrest, he applied for bail. The applicationwas unable to proceed because there was no suitable address available. Mr Karakahad very little support available to him at that time. As a result, he was remanded incustody, at the age of 17, and he went on to spend some two years in custody betweenarrest and sentencing. As a result of the time he had already spent in custody,Mr Karaka was eligible for parole when he was sentenced. His main goal was to applyfor parole straight away, as all he cared about was the fact that he would then be ableto get out of prison. As he put it, he had missed out on two very significant years ofhis life by this stage and he wanted to move on. As a result, he did not instruct hislawyer to conduct a detailed review of his case. Mr Karaka accepts that he was awarethat he had the right to appeal his convictions, but says that he was so focused on theprospects of being released from prison, that he told his lawyer that he did not wish todo so.7 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [106].[11] Eventually, Mr Karaka was granted parole but, as matters transpired, hebecame the subject of interim and then final recall orders. He eventually ended upserving the remainder of his sentence in custody until his statutory release date. Whenhe was ultimately released from prison, he had little support available to him. Freshout of jail, he quickly started experimenting with drugs and hanging out withanti-social peers. At some point, he learnt that his trial counsel, G, had passed away,and that he had been suffering from ill health, in particular dementia, in the periodleading up his death. This caused Mr Karaka to think back to his trial, and to wonderwhether he had had a fair hearing. At this stage he had another lawyer acting for him.He discussed matters with her and started thinking about an appeal. It was alsobecoming apparent to him that his conviction for aggravated robbery was having animpact on him that he had not anticipated when he was younger. He met with anotherbarrister, who undertook a review of the file. Mr Karaka was not able to promptlyfinalise with the barrister or sign the notice of appeal due to his personalcircumstances, but, by December 2022, he had again been remanded to ChristchurchMen's Prison on further charges and he was able to sign the notice of appeal. It wasfiled shortly thereafter.[12] We are satisfied that the reasons for the delay have been satisfactorilyexplained. We accept that Mr Karaka, as a young man, was unfamiliar with thecriminal justice system, at least initially, and that his primary focus was being releasedfrom prison, on parole.[13] Further, and as will be clear from what we have already noted above, the appealhas obvious merit. Accordingly, we grant Mr Karaka's application. The time allowedfor filing the notice of appeal is extended.The trial[14] As noted, the Crown case at trial was that Mr Karaka and Mr Ward, along withMr Brown, travelled to the victim's address late at night, stole various items,threatened the victim and inflicted violence on him.[15] The victim in his evidence suggested that Mr Brown was the ringleader, butthat Mr Ward was also involved in inflicting violence and making threats. Mr Karakawas described as being on the periphery, as being involved in the taking of theproperty, and of loading it into the boot of the car in which the defendants weretravelling. The victim said that Mr Karaka at one point tried to encourage the othertwo defendants to leave.[16] Mr Ward did not give a police interview but he did give evidence at trial. Hesaid that the property was only taken as "collateral", until the victim could repay themoney which the defendants believed he owed to the associate. He said that the victimwas happy to hand over the property on this basis. Mr Ward denied that there wereany threats or actual violence, at least when he was present.[17] Conversely, Mr Karaka did not give evidence at trial. He did however give apolice interview after he was arrested. In his interview he denied any involvement inthe aggravated robbery, or even being present at the victim's house on the night inquestion.[18] In cross-examination, G, reasonably successfully, had the victim accept thatMr Karaka did not make any threats, did not engage in any violence, and was not, atany point, in possession of the knife that was being passed around.[19] Before us, Mr Hawes for the Crown, accepted that, on the evidence adduced attrial, there were two potential defences open to Mr Karaka:(a) that there was an aggravated robbery, but that his involvement wasminimal, limited to putting property in the car, and thereforeinsufficient for liability to attach to him under s 235(b) of theCrimes Act 1961, because the "being together" element of the chargecould not be established;8 or(b) consistent with Mr Ward's position, that there was no aggravatedrobbery at all, no violence, no threats and that the property was takenas collateral only.8 Section 235(b) provides a person will have committed the offence of aggravated robbery who,being together with any other person or persons, robs any person.[20] G's closing was very brief. We set it out in full:May it please your Honour, Madam Foreman and Members of the Jury:It is my task to provide closings in respect to my client, Mr Karaka.You would have heard sufficient information regarding the various parties thatyou are sitting in judgment on. Mr Karaka is the person who I wish toconcentrate on, him being one of the youngest people here and I suggest toyou that he has provided a position whereby there is an ability for you to findMr Karaka not guilty of the charges brought against him.He is a young man that we have seen. He may have some issues but I'd askyou to concentrate on a number of matters, one being that Mr Karaka ischarged as a party and thatTHE COURT: [G] he's not charged as a party.[G]: Sorry, my mistake. It is suggested that he is a party to a robbery. Thatrobbery has had consequences on Mr Karaka. His position is that he has notcaused an offence which he cannot explain.The transcripts will be available to you to look at and consider and I'd ask youto carefully look at what Mr Karaka is alleged to have done, that there arecircumstances whereby Mr Karaka's involvement seems to be on theperiphery, that he has been taken along and not been the principle party, butbeing there or thereabouts and I would ask you, that given the status of theevidence against Mr Karaka, that you can enter a plea of not guilty to thisyoung man.In respect to various items that have been found on his property, I suggest thatthere are reasons for those property to be there and if there is a possibility thatMr Karaka has not committed any offence, then it is your duty to acquit him.It is not for Mr Karaka to prove anything. It is the Crown that must proveagainst Mr Karaka to your satisfaction before you could enter a conviction. Ifthere is any doubt, that doubt must go to Mr Karaka. I appreciate that thatmay be of some concern to you, but that is the standard of proof that has to beobtained before a conviction can be entered on a supplying of guilt. It has tobe beyond reasonable doubt and I suggest to you that you will have areasonable doubt and ask you to give that benefit to Mr Karaka.Thank you Your Honour.[21] It appears that counsel then went into chambers with the Judge. The Judge wasconcerned at the brevity of G's closing: Firstly [G] I am troubled by the [brevity] of your closings. That's partlywhy I've had to spend so much time preparing the draft summing up becauseI've tried to work out what the issues are for the jury to consider and I'm a bitconcerned that I may have gone beyond what you've said to the jury.G indicated that he thought he had made it clear that he was adopting the argumentsadvanced by counsel for Mr Ward. The Judge then recorded that he wasn't sure thatG had made that plain to the jury. There was then a further discussion. It was proposedthat G should be given the opportunity to further address the jury. The Crown did nottake issue with this course, as long as G did not take the opportunity to close afresh.The Crown was content, however, to allow G to tell the jury that his client's defencewas consistent with the defence that had been made by counsel on behalf of Mr Ward.[22] Counsel and the Judge then came back into Court and G addressed the juryagain. He stated as follows:Mr Foreman, Ladies and Gentlemen:It has come to my attention that I had not put to you the defence of Mr Karaka.But on behalf of Mr Karaka, I adopt the position taken by Ms Bailey in respectto the defence for Mr Karaka.[23] The Judge then summed up the case and the jury retired. The Judge in hissumming up did not expand on Mr Karaka's position nor point out the potentialdefences which were available to him. As already noted, Mr Karaka was found guiltyby the jury on both charges.Analysis[24] G passed away in October 2020 and it has therefore not been possible to seekhis input on his conduct at the trial. As a result, the appeal is focused solely on theclosing address given by G. Mr Matthews, appearing for Mr Karaka, was careful notto criticise G, given that he cannot respond. Nor did Mr Karaka in his affidavit directspecific criticism to G. G's closing address is however available verbatim, and theadequacy or otherwise of his closing is a matter which can be objectively assessed.The fact that G is unavailable to give evidence is no impediment to the appealproceeding.9[25] We acknowledge that the content and presentation of a closing address involvesjudgment, skill and style, and is context dependent.10 Nevertheless, there are certain9 Sales v R [2022] NZCA 373 at [23], citing E (CA133/2009) (No 2) v R [2010] NZCA 280.10 Sales v R, above n 9, at [24].components that need to be present "as a bare minimum" in most, if not all, cases.11These are:(a) an introduction;(b) an explanation of the defendant's case;(c) a response to the Crown's case;(d) a clear explanation of why the defendant was not guilty of the chargeor charges faced; and(e) a conclusion.Further, trial counsel in closing should seek to highlight any weaknesses andinadequacies in the Crown case and/or to indicate the factors in the defence case whichpreclude the jury from being satisfied of essential ingredients to the requisitestandard.12[26] As we have noted above, G's cross-examination did elicit some helpfulevidence from Mr Karaka's perspective. However, G's closing address did nothing tohighlight matters favourable to Mr Karaka. It did not focus on the elements of theoffences. There was no real differentiation between the two charges. There was littleto no engagement with the evidence as it related to Mr Karaka. There was nodiscussion of his state of mind, or of what he knew, believed or intended. The closingwas interrupted by the Judge, who had to correct G after he asserted that Mr Karakawas charged as a party to the aggravated robbery. The address contained submissionswhich were against Mr Karaka's interests — for example that Mr Karaka may havehad some issues. The comments as to the standard and burden of proof were truncatedand may have been of concern to the jury. The closing at best amounted to a broadassertion that the charges had not been proved by the Crown. In short, we agree with11 Kaka v R [2015] NZCA 532 at [35].12 R v Jeakings CA231/98, 30 November 1998 at 5; cited in Sales v R, above n 9, at [25].Mr Matthews that the address did little to advance Mr Karaka's case, and in somerespects, actively undermined Mr Karaka's interests.[27] The fact that G, at his second attempt, indicated that the closing remarks madeby counsel for Mr Ward applied equally to his client did not cure the initialdeficiencies. Mr Ward and Mr Karaka had separate interests and the jury was requiredto consider the case against each separately. As noted, there was evidence thatMr Karaka had initially tried to encourage the other defendants to leave. This was nothighlighted by G. Mr Karaka's interests were not served by relying on the closingsubmissions made on behalf of a party whose interests did not fully align withMr Karaka's interests. The defendants, Mr Ward and Mr Karaka, did not stand andfall together.[28] Mr Hawes acknowledged namely that the closing:(a) lacked a coherent structure;(b) commenced by inverting the burden of proof;(c) demonstrated a misunderstanding of s 235(b) of the Crimes Actsufficient for the trial Judge to intervene;(d) failed to articulate a logical pathway leading to a not guilty verdict oneither charge with references to the evidence and Crown and defencecases;(e) did not address the statement given by Mr Karaka to the police in whichhe denied being present at all;(f) only obliquely referred to the charge of receiving;(g) was not cured by adopting the arguments advanced by Mr Ward'scounsel, because Mr Ward's interests and Mr Karaka's interests did notnecessarily align; and(h) ultimately, did not assist the jury in its task nor carry out the functionfor which a closing address is intended — advocating for a defendantby explaining why the Crown has not proved its case.Mr Hawes responsibly accepted that the closing address failed by some margin to meeteven the bare minimum standards noted above.[29] Regrettably, the Judge did not correct the deficiencies in his summing up.[30] A trial Judge has a degree of responsibility to ensure that a defendant's case isproperly put and that responsibility is heavier in cases where defence counsel'sperformance has been poor.13 A trial Judge however cannot always cure an inadequatedefence. The Judge cannot go so far as to assume the role of a second advocate forthe defendant.14 If the defence is manifestly inadequate, the Judge may be required todirect trial counsel to present a proper closing address, or even go so far as to dischargethe jury, and order a new trial.15[31] In any event, the Judge did not specifically draw the jury's attention toMr Karaka's case in his summing up. Nor did he abort the trial and discharge the jury.[32] We have no difficulty in concluding that a miscarriage of justice has occurred.Mr Karaka's case was not properly put to the jury. He did not have a fair trial, and amiscarriage of justice has resulted.A retrial?[33] In the course of his submissions, Mr Hawes indicated that despite the fact thatMr Karaka has served the sentence that was imposed on him, the Crown was seekingan order for a retrial, because there was no issue with the prosecution case. He advisedthat such order was sought, so that the position could be reviewed, the complainant inrelation to the aggravated robbery spoken to, and the prosecutorial discretionexercised.13 Ede v R [2010] NZCA 358, [2010] 3 NZLR 557 at [46].14 R v Shipton [2007] 2 NZLR 218 (CA) at [37]; and Kaka v R, above n 11, at [30].15 Sales v R, above n 9, at [26]–[27]; and Kaka v R, above n 11, at [43].[34] This issue has vexed the Court.[35] When an appeal is allowed, s 233 of the Criminal Procedure Act applies. TheCourt must set aside the conviction and must also make any other order it considersjustice requires, which includes directing that a new trial be held.[36] The conventional principle is that the Court should order a retrial and leave itto the Crown to determine whether to proceed with it.16 This convention is oftenconsidered to be appropriate where a conviction has been set aside because of aprocedural or legal error at the trial, but there remains evidence on which a jury couldconvict.17[37] Here, there was no issue with the prosecution case. There was other evidenceon which the jury was able to convict — for example Mr Karaka's fingerprints werefound on various items of the property which were taken. Ordering a retrial would nothave the effect of giving the Crown another chance to cure evidential deficiencies inits case against Mr Karaka. The trial miscarried not through any fault of the Crownbut rather because of defence counsel error and generally, a retrial is ordered if anappeal against conviction is allowed due to the conduct of the appellant's trialcounsel.18[38] However, the Crown's contention that a retrial should be ordered in this caseis somewhat diminished because Mr Karaka has already served his sentence.19 It isunlikely that any greater sentence would be imposed following any retrial.20 Thereare other matters personal to Mr Karaka, notably his ADHD and his FASD. Theoffending occurred some seven years ago when Mr Karaka was only 17 years old. Theconvictions have caused problems for Mr Karaka when he has been subsequentlysentenced on other matters.16 M (CA663/2008) v R [2010] NZCA 302 at [47].17 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CPA 233.02(2)].18 R v J (CA 360/2006) [2007] NZCA 141 at [21].19 Witehira v R [2016] NZCA 123 at [38].20 Witehira v R, above n 19, at [38]; R v Accused (CA54/1996) (1996) 13 CRNZ 561 (CA) at 241; Rv Kino and Mete [1997] 3 NZLR 24 (CA) at 29; Redman v R [2013] NZCA 672 at [58].[39] While the issue is finely balanced, we have concluded that it is appropriate inthis case not to order a retrial. We do not consider that it would be fair to Mr Karakato do so. We order that there is to be no retrial.[40] We make an order prohibiting publication of the name or identifying particularsof G. G is deceased and thus cannot respond to the implicit criticism nor put hisversion of events before the Court. This order does not prejudice Mr Karaka or theCrown.Result[41] The application for an extension of time to appeal against conviction is granted.[42] The appeal is allowed.[43] Mr Karaka's convictions for aggravated robbery and receiving entered on15 November 2018 are set aside.[44] There is to be no retrial.[45] Order prohibiting publication of the name or identifying particulars of G.Solicitors:Crown Solicitor, Christchurch for Respondent