w w w . L a w y e r S e r v i c e s . i n



Joshua Terehunga Edwards v/s The Queen


Company & Directors' Information:- EDWARDS INDIA PRIVATE LIMITED [Active] CIN = U29254PN2007PTC137623

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

    CA No. 637 of 2017

    Decided On, 02 May 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE KÓS P
    By, THE HONOURABLE MR. JUSTICE FRENCH & THE HONOURABLE MR. JUSTICE MILLER

    For the Appellant: M.A. Stevens, Advocate. For the Respondent: K.S. Grau, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Ks P)

[1] Two young men are heading home up High Street, Dunedin, after a shopping trip. One is carrying some newly-bought shoes and socks. At the corner of High and Hope Streets they are accosted by Mr Grace. The shoes and socks are taken from them. Mr Grace later pleads guilty to aggravated robbery and is sentenced to a term of imprisonment. He is to observe that they were most expensive shoes he ever acquired. 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 is common ground that he was present for at least some of the time before the two groups separated. He was charged with aggravated robbery, as a principal.

[2] Mr Edwards was convicted by a jury and sentenced by Judge Phillips in the District Court to two years and two months’ imprisonment.[1] His appeal is against conviction only. It is brought on the single contention that the jury’s verdict is unreasonable 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 jury could not reasonably have been satisfied to the required standard that the accused was guilty.

[5] This Court has said that it is not its function to substitute its view of the evidence for a view which is reasonably open to the jury.[3] The weight to be given to discrete pieces of evidence, and assessment as to witness credibility, are essentially jury functions.[4] In R v Patel we observed:[5]

Verdicts based on credibility are likely to be overturned only where there is contemporary evidence which clearly contradicts the witness or in cases of glaring improbability. Inconsistencies alone are unlikely to reach that standard.

[6] These principles were common ground between counsel.

What had to be proved by the Crown?

[7] The charge in this case was aggravated robbery under s 235(b) of the Crimes Act 1961. The Crown case was that Messrs Grace and Edwards together participated in the robbery of the complainants. Its case was that Mr Edwards was a principal offender, not a party to Mr Grace’s robbery.

[8] To prove the offence, the Crown needed to establish that Mr Edwards was physically 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 intent to rob, inherent in which is the intent to steal using their collective force should that be called for. Sharing that intent, each must play some definite part to accomplish the design. One may assault or threaten assault and rob and on a s 66 analysis be a principal. Another may be present when the assault happens or threats made, and the robbery is accomplished, and do little more than afford 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 threaten assault 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 principal offender 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 also be guilty of assault, but not more.

[9] As Ms Grau submitted for the Crown, it was immaterial which of the pair struck one of the complainants, or which snatched the bag, as long as both were present and acting together. What was required was that they both were active participants in the threats made to the complainants. More than merely aiding and abetting robbery by 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 of the new shoes and socks and was carrying them in the bag. They both gave evidence at trial. A third witness, Mr Membery, was walking down High Street at the same time. 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 was a late-arriving innocent. We think the jury was entitled to disbelieve the evidence of Mr Grace, for three reasons. First, because he had an ulterior interest in securing the acquittal of his cousin. Secondly, because his evidence was inconsistent with Mr 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 not remember anything, because he had taken a cocktail of drugs. Yet in evidence he purported 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 significant respects. 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 be Messrs Grace and Edwards, there being no third person) crossed the road and approached 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 Tosh remembered one of them having got out of a car, but that they nonetheless approached him at about the same time. Mr Barnes became confused in evidence as to whether Mr Edwards got out of the car before or after the bag had been snatched. Mr Membery described the two assailants as coming out of a building (neither one from a car) and confronting the complainants at the same time.

[16] Secondly, as to who approached whom. Both Mr Barnes and Mr Tosh had difficulty identifying Messrs Grace and Edwards from photo montages. Mr Tosh identified a man (who proved to be Mr Edwards) as approaching Mr Barnes, with Mr 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 man who punched Mr Barnes and then stole Mr Tosh’s bag. Mr Membery remembered only one of the men having facial tattoos, and that that person punched one of the complainants and stole the bag. But both Messrs Grace and Edwards are facially tattooed, 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 could have taken five to 10 minutes, and probably 15. Mr Tosh (who got the time of day wrong in evidence) thought it only took about one minute. Mr Barnes thought that the incident was over within 30 seconds of Mr Edwards arriving.

[18] Mrs Stevens submitted for Mr Edwards that the evidence of Mr Barnes should be preferred as more reliable, and that of Mr Tosh and Mr Membery rejected because of 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 and Edwards had similar builds and superficially similar facial appearances, so there was scope for confusion as to which of them was doing what. The essential task for the jurors was to isolate the elements of the offence alleged and ask whether the evidence left them sure as to guilt on each element. Inconsistencies in evidence may leave a juror with uncertainty as to one or more elements. Or it may cause the juror to doubt the reliability or credibility of a witness, so that that witness’s evidence is either disregarded or downgraded in addressing the essential task. But after undertaking that exercise the question remains: is a broadly consistent evidential substratum left from which 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 remained in 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 not really help Mr Edwards. Mr Barnes still said that Mr Edwards demanded wallets, and also supported Mr Grace by getting 'beside or behind' the complainants. Given that evidence, it is immaterial whether the bag had been taken before Mr Edwards joined in, that being the point Mr Barnes was unsure of. None of the witnesses accepted that the robbery was a 'one man job'.

[21] Although the witnesses contradicted each other in certain particulars, they were consistent about the threats and demands being made by both men, including Mr Edwards. The inconsistencies in detail did not undermine the essential Crown case. Nor did it create a glaring improbability. Despite the differences, the jury was entitled to regard the evidence of the three Crown witnesses as credible, their essential substratum evidence as to Mr Edwards’ participation in the robbery as reliable, and the evidence of Mr Grace as unreliable. The inconsistencies between the Crown witnesses were not so substantial as to displace the common evidential substratum.<

Please Login To View The Full Judgment!

br /> [22] The inconsistencies in evidence were placed squarely before the jury in defence counsel’s closing address. The jury was invited to doubt the accounts given by the Crown witnesses, and correspondingly to give credence to that given by Mr Grace. The Judge drew attention to these matters in his summing-up. No complaint is made about the terms of that summing-up. [23] The jury was, therefore, entitled to be sure that Mr Edwards was acting together with Mr Grace when Mr Grace robbed Mr Tosh, and shared his intent to rob. Result [24] The appeal against conviction is dismissed. ---------------------------------------------------------------- [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]. [6] Feterika v R [2007] NZCA 526. [7] R v Galey [1985] 1 NZLR 230 (CA) at 234.
O R







Judgements of Similar Parties

05-06-2020 Steven Robertson Versus The Queen Court of Appeal of New Zealand
02-06-2020 Wai Yew Chai Versus The Queen Court of Appeal of New Zealand
26-05-2020 Michaela Patricia Irwin Versus The Queen Court of Appeal of New Zealand
19-05-2020 Melissa Mary Haereroa Versus The Queen Court of Appeal of New Zealand
13-05-2020 James William Manuoa Te Hiko Versus The Queen Court of Appeal of New Zealand
11-05-2020 Phillip Richard Joe Versus The Queen Court of Appeal of New Zealand
08-05-2020 Malagi Vela Versus The Queen Court of Appeal of New Zealand
07-05-2020 Sammy Ayoun Soud Versus The Queen Court of Appeal of New Zealand
30-04-2020 Marshall James Dennis Joyce Versus The Queen Court of Appeal of New Zealand
28-04-2020 Kane Joseph Manoah Versus The Queen Court of Appeal of New Zealand
22-04-2020 Deo Narayan Versus The Queen Court of Appeal of New Zealand
03-04-2020 James Andrew Mills Versus The Queen Court of Appeal of New Zealand
24-03-2020 Jacob Lowenstein Versus The Queen Court of Appeal of New Zealand
23-03-2020 Te Iwi Ngaro Rameka Versus The Queen Court of Appeal of New Zealand
19-03-2020 Richard Tuwhakakorongo Te Roroa Te Kani Versus The Queen Court of Appeal of New Zealand
11-03-2020 Kelvin Clive Wood Versus The Queen Court of Appeal of New Zealand
02-03-2020 The Principal Commissioner of Customs, Chennai-VII Commissionerate, Chennai V/S M/s. Sea Queen Shipping Services (P) Ltd., Adyar, Chennai High Court of Judicature at Madras
02-03-2020 Leanne Maree Crighton Versus The Queen Court of Appeal of New Zealand
20-02-2020 Jimmy Peter Akuhata Versus The Queen Court of Appeal of New Zealand
20-11-2019 Hugh James Ford Simey Solicitors Versus Edwards on behalf of the estate of the late Thomas Arthur Watkins United Kingdom Supreme Court
06-09-2019 Papa Manu Versus The Queen Court of Appeal of New Zealand
15-08-2019 Shane Arron Hunter Versus The Queen Court of Appeal of New Zealand
07-08-2019 Wen Xu Versus The Queen Court of Appeal of New Zealand
31-07-2019 Her Majesty The Queen Versus R.V. Supreme Court of Canada
29-07-2019 Shayal Upashna Sami Versus The Queen Court of Appeal of New Zealand
11-07-2019 Keith Bartram Versus The Queen Court of Appeal of New Zealand
10-07-2019 Gang Chen &amp; Another Versus The Queen Court of Appeal of New Zealand
09-07-2019 Zen Pulemoana Versus The Queen Court of Appeal of New Zealand
08-07-2019 Kovinantie Fukofuka Versus The Queen Court of Appeal of New Zealand
05-07-2019 Majesty The Queen Versus Albert Penunsi Supreme Court of Canada
01-07-2019 Danial John Keeley Versus The Queen Court of Appeal of New Zealand
28-06-2019 Patrick John Goldfinch Versus Her Majesty The Queen Supreme Court of Canada
13-06-2019 QI XIE Versus The Queen Court of Appeal of New Zealand
11-06-2019 Kevin Martin Matthews Versus The Queen Court of Appeal of New Zealand
04-06-2019 Ngakiri Williams Versus The Queen Court of Appeal of New Zealand
31-05-2019 Tom Le Versus Her Majesty The Queen Supreme Court of Canada
24-05-2019 Bradley David Barton Versus Her Majesty The Queen Supreme Court of Canada
10-05-2019 Ram Parshotam Mittal &amp; Others Versus Hotel Queen Road Pvt. Ltd. &amp; Others Supreme Court of India
07-05-2019 Jason Phillip Dehaar Versus The Queen Court of Appeal of New Zealand
18-04-2019 Sean Patrick Mills Versus Her Majesty The Queen Supreme Court of Canada
12-04-2019 Rajeshwar Singh Versus The Queen Court of Appeal of New Zealand
10-04-2019 The Queen Versus Dylan Cossey Court of Appeal of New Zealand
09-04-2019 Tuatahi Te Parau Gotz Versus The Queen Court of Appeal of New Zealand
28-03-2019 Corey Lee James Myers Versus Her Majesty The Queen Supreme Court of Canada
22-03-2019 Shaun Thomas Bishop Butler Versus The Queen Court of Appeal of New Zealand
12-03-2019 Christian Lee Hone Hobson Versus The Queen Court of Appeal of New Zealand
28-02-2019 Stead Nuku Versus The Queen Court of Appeal of New Zealand
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
08-11-2018 Virgil Balajadia & Another Versus The Queen Court of Appeal of New Zealand
31-10-2018 Jesse-James Winter & Another Versus The Queen Court of Appeal of New Zealand
18-10-2018 John Garry Davidoff Versus The Queen Court of Appeal of New Zealand
11-10-2018 Iraia Aranga Ngamotu Burton Versus The Queen Court of Appeal of New Zealand
10-10-2018 Eric Walter Smith Versus The Queen Court of Appeal of New Zealand
05-10-2018 William Arthur Parkin Versus The Queen Court of Appeal of New Zealand
18-09-2018 Kelly William Stewart Versus The Queen Court of Appeal of New Zealand
11-09-2018 NZME Publishing Limited & Others Versus The Queen & Another Court of Appeal of New Zealand
10-09-2018 Shannon Taimania Heemi Versus The Queen Court of Appeal of New Zealand
06-09-2018 Heather Gleason-Beard Versus The Queen Court of Appeal of New Zealand
23-08-2018 Laurence Tyson Te Ruki & Another Versus The Queen Court of Appeal of New Zealand
10-08-2018 Rodney George Martel & Others Versus The Queen Court of Appeal of New Zealand
20-07-2018 Her Majesty The Queen & Others Versus Derek Brassington & Others Supreme Court of Canada
13-07-2018 Her Majesty The Queen in Right of British Columbia Versus Philip Morris International, Inc. & Others Supreme Court of Canada
09-07-2018 Michael Robert Pollard Versus The Queen Court of Appeal of New Zealand
06-07-2018 William Hines Versus The Queen Court of Appeal of New Zealand
02-07-2018 Benjamin Shepherd Versus The Queen Court of Appeal of New Zealand
29-06-2018 Richard Alan Suter Versus Her Majesty The Queen Supreme Court of Canada
22-06-2018 David Shaun Galloway Versus The Queen Court of Appeal of New Zealand
20-06-2018 Paul Ian Lane Versus The Queen High Court of Australia
13-06-2018 Jeffrey G. Ewert Versus Her Majesty The Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution & the Warden of Mission Institution) & Others Supreme Court of Canada
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
25-05-2018 Wing Wha Wong Versus Her Majesty The Queen & Others Supreme Court of Canada
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
09-05-2018 John Collins Versus The Queen High Court of Australia
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
19-04-2018 Her Majesty The Queen Versus Gerard Comeau & Others Supreme Court of Canada
13-04-2018 Marie-Eve Magoon & Another Versus Her Majesty The Queen Supreme Court of Canada
26-03-2018 Isaac Cruz Eru Broughton Versus The Queen Court of Appeal of New Zealand
23-03-2018 Bruce Carson Versus Her Majesty The Queen Supreme Court of Canada
23-03-2018 Zhuoling Gao & Others Versus The Queen Court of Appeal of New Zealand
21-03-2018 Ronald Michael Craig Versus The Queen High Court of Australia
21-03-2018 Hone Rankin Daniels Versus The Queen Court of Appeal of New Zealand
15-03-2018 Matthew John Young Versus The Queen Court of Appeal of New Zealand
09-02-2018 Canadian Broadcasting Corporation Versus Her Majesty The Queen & Others Supreme Court of Canada
02-02-2018 Williams Lake Indian Band Versus Her Majesty The Queen in Right of Canada as Represented by the Minister of Aboriginal Affairs & Northern Development Canada & Others Supreme Court of Canada
21-12-2017 Donald Joseph Boutilier Versus Her Majesty The Queen & Others Supreme Court of Canada
14-12-2017 Brian Frank Taylor & Others Versus The Queen Court of Appeal of New Zealand
11-12-2017 W Versus The Queen Court of Appeal of New Zealand
08-12-2017 Tristin Jones Versus Her Majesty The Queen in Right of Canada & Others Supreme Court of Canada
07-12-2017 Liang Liu & Another Versus The Queen Court of Appeal of New Zealand
05-12-2017 Levi James Keil & Others Versus The Queen Court of Appeal of New Zealand
29-11-2017 The Queen Versus Apineru Kerenise Malu Court of Appeal of New Zealand