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Guilty plea and conviction upheld after co-defendant acquitted of aggravated robbery

1 Dec 2023

| Author: Fiona Wu

Appeal against conviction following guilty plea – Criminal Procedure Act 2011 – Solicitor-General’s Reference – question of law whether co-defendant’s acquittal in aggravated robbery irreconcilable with defendant’s conviction – different elements of offence – Court of Appeal decision overturned

Solicitor-General’s Reference (No 1 of 2023) from CA636/2021 per Winkelmann CJ, O’Regan, Ellen France, Williams and Kós JJ


Kane Stuart Darling and a Mr Anderson were involved in an altercation with two complainants in a car at a Nelson beach. Both men were charged with aggravated robbery but in different forms. Relevantly, s 235 of the Crimes Act provides that an offence of aggravated robbery is complete when a person does any one of the following:

(a)           robs any person and, at the time of, or immediately before or immediately after, the robbery causes grievous bodily harm to any person; or

(b)          being together with any other person or persons, robs any person

Darling was charged under s 235(b) of the Crimes Act 1961 and Anderson was charged under s 235(a). In respect of Darling, the “other person” was said to be Anderson.

Darling pleaded guilty to the charge whereas Anderson pleaded not guilty and went to trial, where he was acquitted of the charge of aggravated robbery and others he faced at the time.

Court of Appeal decision
Darling appealed his conviction to the Court of Appeal on the grounds that there was no reasonable basis for the conviction given Anderson’s acquittal.

The Court of Appeal allowed Darling’s appeal and quashed his conviction. The court essentially found that Darling’s guilty plea to the charge under s 235(b) could not be reconciled with Anderson’s acquittal of the charge under s 235(a). There had accordingly been a miscarriage of justice.

Solicitor-General’s reference
The Supreme Court granted leave to the Solicitor-General to refer to the following question of law:

On the facts as set out in the Court of Appeal decision and the relevant documents on which guilty pleas were entered, did Mr Anderson’s acquittal mean that Mr Darling could not, in law, have been convicted of the offence with which he was charged, despite his guilty plea?

The Solicitor-General’s reference allows an issue of law to be raised without affecting the outcome of the original case. Accordingly, the Supreme Court’s determination does not affect the quashing of Darling’s conviction.

Supreme Court decision
The Supreme Court has unanimously agreed the Court of Appeal was wrong in law about the effect of Anderson’s acquittal on Darling’s conviction. Anderson’s acquittal did not mean Darling could not, in law, have been convicted of the offence with which he was charged.

The court noted that the overriding test in an appeal against conviction is whether a miscarriage of justice will result if the conviction is not overturned. In some circumstances, a subsequent acquittal of a co-offender could be relevant to a challenge by the other offender to a conviction based on a guilty plea. But the significance of the acquittal of a co-offender to the outcome of a conviction appeal must be addressed on a case-by-case basis, having regard to the overall circumstances of the case.

In the present case, the charge Darling pleaded to was different to that faced by Anderson. The elements of the two offences are different. For Anderson to be convicted, the Crown was required to prove that he both robbed the first complainant of her handbag and caused grievous bodily harm to the second complainant. It was not necessary to prove, before Darling could be convicted, that Anderson caused the wounds to the second complainant, which was an important issue in his trial.

The admitted facts to which Darling pleaded were sufficient to establish the elements of the offence of aggravated robbery under s 235(b). Anderson’s acquittal said nothing about Darling’s guilt. The Court of Appeal was wrong to hold that Anderson’s acquittal “draws into question whether there was a robbery at all”.  The most that could be said was that the jury was not satisfied beyond reasonable doubt that Anderson was guilty of a different offence with different elements.


Applicable principles: whether miscarriage of justice arising – whether co-defendant’s acquittal irreconcilable with Darling’s conviction – when subsequent acquittal of co-offender relevant to challenge to other offender’s conviction.

S-G 2023-nzsc-151

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