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Christian Lee Hone Hobson v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 234 of 2018

    Decided On, 12 March 2019

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE DOBSON & THE HONOURABLE MR. JUSTICE BREWER

    For the Appellant: C.M. Clews, Advocate. For the Respondent: J.A. Eng, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Hobson was convicted of aggravated robbery following a jury trial in the District Court, presided over by Judge Spear.

[2] Mr Hobson now appeals his conviction.

Background

[3] The charge arose out of a robbery of a liquor store. CCTV footage showed one young man waiting outside the store as a lookout, while three other young men entered the store. The first violently subdued the store attendant by punching him in the face several times, while the other two took items from the shelves.

[4] Police alleged that Mr Hobson was one of the men who took items from the shelves and that the man who assaulted the store attendant was a Mr Maniapoto. They were unable to identify the lookout and the other man who had taken items from the shelves. Messrs Hobson and Maniapoto were charged with aggravated robbery under s 235(b) of the Crimes Act 1961 and tried jointly.

[5] Mr Hobson gave evidence at the trial. He admitted being one of the two men taking items off the shelves but said the plan to rob the store had been a last minute plan and that he did not know violence was going to be used. His defence was that he thought they were just going to grab the liquor and go.

[6] The jury found both Mr Hobson and Mr Maniapoto guilty of aggravated robbery.

[7] Mr Hobson raises several grounds of appeal, each of which we now address.

Analysis

Photo wrongly admitted into evidence

[8] Immediately before the start of the trial, the Judge gave a ruling allowing the prosecutor to put a photo of Mr Maniapoto in evidence.[1] The photo was taken the day after the robbery.[2] The purpose of admitting the photo was so the jury could compare the photo with the images from the CCTV footage.[3] Mr Maniapoto disputed having any involvement in the robbery.

[9] Mr Hobson contends the photo should have been excluded and that he was materially prejudiced by its admission. He also contends the admission of the evidence should have prompted the Judge to order severance of Mr Hobson’s trial from Mr Maniapoto’s trial.

[10] We do not accept these submissions. The admissibility of the photo was an issue that impacted on Mr Maniapoto alone. It could not possibly have prejudiced Mr Hobson especially in circumstances where he himself gave evidence that the man seen on the CCTV footage punching the store attendant was Mr Maniapoto.

[11] Joinder of the trials was appropriate and indeed inevitable in the circumstances.

The Judge misdirected the jury on the elements of aggravated robbery and wrongly sanctioned reasoning by inference

[12] The Judge provided the jury with a memorandum explaining the elements of the offence of aggravated robbery. As the Judge explained, robbery is theft accompanied by violence or threats of violence and that in this case the Crown was alleging aggravated robbery because the robbery was said to have been undertaken by two or more persons.

[13] In his memorandum, the Judge told the jury the Crown must prove beyond reasonable doubt that the three young men who entered the store had previously decided to steal liquor from it and had also previously decided the first man to enter would use violence or the threat of violence to overcome any resistance to them stealing the liquor while the other two would steal it. The Judge then detailed the different considerations relating to each defendant.

[14] In the case of Mr Hobson, the Judge reminded the jury that Mr Hobson had admitted to being one of the three men, had admitted to entering the store with the intention of stealing liquor and had also admitted to stealing a box of liquor. However, he had denied being aware the first man was likely to use violence or the threat of violence. If the jury accepted that claim or considered it a reasonable possibility, Mr Hobson would be guilty of theft, but not aggravated robbery.

[15] The Judge then stated that the Crown case was either that Mr Hobson must have known when he entered the store that the first man would be likely to use violence or that before Mr Hobson stole the liquor he was aware the first man had assaulted the shop keeper and went ahead anyway.

[16] In addition to the memorandum, the Judge also provided the jury with a question trail which reflected the contents of the memorandum.

[17] As we understand it, Mr Hobson now impugns these directions d on the basis that as a matter of law the Judge erred in failing to limit the inquiry regarding Mr Hobson’s intentions and knowledge to the time he entered the store. In our view, that criticism is unfounded. The Crown was entitled to put its case on the alternative basis described by the Judge, namely that whatever his intentions at the moment of entry, Mr Hobson would still be guilty of aggravated robbery if before he stole anything he knew violence was being employed. At that point he became complicit in the joint enterprise and was acting together with Mr Maniapoto.

[18] A further argument advanced on behalf of Mr Hobson was that the Judge wrongly invited the jury to draw inferences about Mr Hobson’s knowledge and intentions despite the fact he had given direct evidence about his state of mind in evidence. However, that argument is based on the incorrect premise that the jury was somehow obliged to accept Mr Hobson’s assertions which it obviously was not. There was in fact ample evidence from which the jury could draw the necessary inferences advocated by the Crown. Further, under cross-examination, Mr Hobson himself made damaging admissions suggesting he was aware of the violence when he stole the liquor.

[19] Finally, for completeness on this ground of appeal, we note that the trial record appears to be incomplete. At some point in the trial, the jury asked written questions about the elements of aggravated robbery. There is no record of when the questions were asked or the Judge’s response. However, while such a gap might usually be of concern, we are satisfied that in this case nothing turns on it. We do have copies of the Judge’s memorandum which accurately addresses the issues raised by the jury’s questions.

The Judge’s lies direction was inadequate

[20] Mr Hobson initially told police that he took no part in the robbery but had stayed in a vehicle parked near the store, having asked one of his associates to go get him some smokes. He confirmed that version of events at the beginning of a formal interview but when confronted with the CCTV footage he accepted that he had entered the store. However, he maintained that as far as he knew they were only going to get some smokes. He denied knowing the place was going to be robbed.

[21] Both accounts differed from Mr Hobson’s evidence at trial detailed above. In cross-examination, Mr Hobson claimed that when he was speaking to the police, he had been in a state of shock.

[22] In her closing address, the prosecutor submitted it did not ring true that the lies were due to shock. She submitted that Mr Hobson had deliberately lied to the police in order to mislead. She described this as “deception” and “trying to minimise your role”,[4] inviting the jury to consider whether that was still what Mr Hobson was doing at trial.

[23] After the jury had retired, Mr Hobson’s trial counsel asked for a lies direction. The Judge agreed that was appropriate and recalled the jury. After summarising the different stories given by Mr Hobson, the Judge said:[5]

[3] What I need to tell you is that if you accept that the defendant did lie to the police and that seems obvious and even if you consider that he lied during the course of his evidence that doesn’t mean that he is guilty of this offence. People can lie for all sorts of reasons, desperation to extract themselves out of a difficult situation, it does not mean that he is guilty, it just means that he is someone who is prepared not to tell the truth when it suits him and so what that means is members of the jury if you consider that he lies that is simply a factor that you can take into account when you come to assess his credibility on what he says about other matters so that is a standard direction we give you about someone where there is an accusation that they have lied.

[24] On appeal, Mr Hobson contends the direction was defective because it failed to specifically mention the comments made by the prosecutor about deception and minimising. It is also contended the Judge should have mentioned the fact the prosecutor had never put the allegation of deception to Mr Hobson in crossexamination.

[25] In our view, these criticisms are untenable.

[26] We are satisfied the lies direction adequately complied with the requirements of s 124(3) of the Evidence Act 2006. The jury were told they must be satisfied Mr Hobson had in fact lied to the police, that people lie for various reasons, and that they should not automatically c

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onclude that just because Mr Hobson had lied, he was guilty of aggravated robbery. [27] As for the prosecutor’s cross-examination, that was very much directed at suggesting Mr Hobson was trying to deceive the jury, by exposing his evidence as a dishonest minimisation of events. It was not necessary for the prosecutor to use any particular form of words. Outcome [28] In our view none of the grounds of appeal has any merit. [29] The appeal against conviction is accordingly dismissed. -------------------------------------- [1] R v Hobson [2018] NZDC 2905 at [7]–[24]. [2] At [7]. [3] At [14]. [4] The appellant suggested the jury may have understood by the use of the pronoun “your”, that the prosecutor was referring to the jury’s role. We disagree. It would have been clear to the jury that the reference was to Mr Hobson’s role in the robbery. [5] R v Hobson DC Hamilton CRI-2017-070-002665, 21 February 2018.
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