R v Ferris [2018] NZDC 15035

Published 12 September 2019

Dismissal of charge — party to offence — robbery — properly directed jury could not reasonably convict the defendant — inadequate evidence — admissibility of evidence — R v Flyger [2001] NZLR 721 — Parris v Attorney-General [2004] 1 NZLR 519 — Ahsin v R [2014] NZSC 153 — Singh v R [2017] NZCA 136 — R v Keil [2017] NZHC 2221 — Criminal Procedure Act 2011, s 147 — Evidence Act 2006, ss 22A & 27 — Crimes Act 1961, s 66(1). Four defendants faced charges arising from the robbery of a ute. In this pretrial matter the fourth defendant applied to have his charge of party to robbery dismissed on the grounds that a properly-directed jury would not be able to reasonably convict him. The Crown opposed the application, arguing that text messages between the fourth defendant and the principal offender were admissible evidence and proved the defendant's participation in the offending. As the defendant was charged as a party to robbery, the Crown had to prove that the robbery was committed by a principal offender, that the defendant assisted the principal offender in committing the crime, that he intended to assist in committing the crime and that he knew the physical and mental elements of the offence to be committed. The Court agreed that the text messages were admissible evidence and could support an argument that the defendant had encouraged the principal offender to commit the offence. However although the texts showed that the defendant knew that the principal offender planned to take the ute from the complainant, the Court considered that they were too vague to show that the defendant knew that the principal offender intended to use violence against the complainant. Use of violence is an essential ingredient of the offence of robbery, so the defendant could not be said to have intended to assist in committing the crime or to have known the physical and mental elements of the offence to be committed. The Court granted the application to have the charge dismissed. Judgment Date: 31 July 2018. * * * Note: names have been changed to comply with legal requirements. * * *