Albert v The Queen - [2011] NZCA 526

IN THE COURT OF APPEAL OF NEW ZEALAND

CA141/2011
[2011] NZCA 526

BETWEEN RHEON ST. CLAIR ALBERT
Appellant

AND THE QUEEN
Respondent

Hearing: 4 October 2011

Court: Stevens, Ronald Young and Andrews JJ

Counsel: C W J Stevenson for Appellant
A M Toohey for Respondent

Judgment: 17 October 2011 at 10.15 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe conviction on count 3 is quashed. We direct the entry of an acquittal on this count.
CThe conviction on count 2A is quashed. We direct a retrial.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

The appellant was convicted by a jury on two counts of wounding two women, Ms McGill and Ms Maaka with reckless disregard (counts 2A and 3 respectively).[1] At the same trial the appellant was acquitted on counts of wounding Mr Moananui with intent to cause grievous bodily harm (count 1) and wounding Ms McGill also with intent to cause grievous bodily harm (count 2).
[1] Crimes Act 1961, s 188(2).
The appellant and members of the Mongrel Mob, including Mr Moananui had fallen out regarding the ownership of some puppies. On 6/7 August 2009 Mr Moananui and others came to the appellant’s house demanding property. The appellant punched one of the men. He was then attacked and severely beaten by a number of those present.
After the attackers left, the appellant obtained a shotgun from a neighbour’s house. He loaded it and shot Mr Moananui whom he said was advancing on him. Ms McGill went to Mr Moananui’s assistance. The appellant then discharged the shotgun a second time. The appellant said that he was shooting over the heads of some men in the area as a warning shot. Ms McGill was hit in the back. Ms Maaka who had been in the park across the street from the confrontation was also hit by shotgun pellets.
This appeal is based on two grounds:
(a)The verdict on count 3 of wounding with reckless disregard relating to Ms Maaka was unreasonable.[2] The appellant says he was acquitted on count 1 of wounding with intent to cause grievous bodily harm, when he was acting in self defence. Given it was a reasonable possibility that Ms Maaka was also struck from the first discharge of the gun (when the jury had found the appellant’s actions justified as being in self defence), then the appellant should also have been acquitted on count 3.
(b)Judge Fraser, the trial Judge, erred when directing the jury on the two wounding with reckless disregard counts resulting in a miscarriage of justice because:[3]
(i)he incorrectly categorised the appellant as effectively admitting to conscious risk taking; and
(ii)he failed to direct the jury on “reasonableness”.
[2] Crimes Act 1961, s 385(1)(a).
[3] Crimes Act 1961, s 385(1)(c).
As to the appeal against sentence the appellant says his sentence was manifestly excessive in the circumstances.

Further facts

It seems that the appellant and members of the Mongrel Mob including Mr Moananui had bred dogs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albert v The Queen

Details

AGLC: Albert v The Queen [2011] NZCA 526
Case: [2011] NZCA 526
Decision Date: 17 October 2011

CaseChat Overview and Summary

In the case of Albert v The Queen, the appellant was convicted of charges including attempted murder and was sentenced to imprisonment. The dispute centered around whether the appellant appreciated the risk of serious harm to others when he discharged a firearm during an altercation. The decision was made by the High Court of Australia. The legal issues before the court included whether the trial judge had correctly directed the jury on the necessary elements of the offence, particularly the requirement that the appellant appreciated the risk of serious harm to others when he discharged the firearm.

The court found that the trial judge had erred in his summing up to the jury. The judge had suggested that the appellant's evidence constituted an admission that he appreciated the risk of serious harm when he fired the gun, but the court held that the appellant's acknowledgment of a potential risk was not equivalent to an appreciation of the risk at the critical time. The court concluded that the appellant's evidence could be interpreted as him recognising a risk if he had fired at body height or lower, but not if he had fired in an upward direction. The court held that the Crown needed to prove beyond reasonable doubt that the appellant appreciated the risk to safety at the time of the second shot. Given the trial judge's misdirection, the court quashed the conviction and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As to this the Judge said:[36] In working your way through those, you may come to question 5, at page 14, and that is, are you sure that when the accused Mr Albert discharged the firearm he recognised there was a risk to the safety of others? If Ms McGill was struck with the first shot then Mr Albert acknowledged in his evidence that there was a risk that someone could be seriously injured, that is a risk to safety. If she was struck by the second shot, he also acknowledged the risk by saying he shot upwards, recognising that....[39] You then move to question 5, if you get that far. Are you sure that when the accused, Mr Albert, discharged the firearm he recognised all the risks of the safety to others? I say that if Ms Maaka was injured by the first shot, then Mr Albert acknowledged the risk that someone could be seriously injured; ie, a risk to safety, and with the second shot he acknowledged the risk by again saying that he shot upwards. That’s in recognition of the risk.(Emphasis added.) As we have noted ([10]), both parties now accept that Ms McGill must have been hit from the second shot. Although the Judge at [39] of his summing up is referring to Ms Maaka, there is also reference to the second shot. Given there remained uncertainty at trial about what shot had hit Ms McGill, the Judge’s comments about the first and second shots and the appreciation of risk of serious harm by the appellant relating to Ms Maaka had equal relevance to Ms McGill. In his cross-examination the appellant was asked:Q: So there was always the risk of someone else being shot, wasn’t there? A: Potentially. The Crown in their submissions categorised this evidence as a form of admission by the appellant of appreciation of risk. We do not consider it is an admission. The question and answer do not establish the appellant appreciated the risk of serious harm to others when he discharged the firearm, at the critical time. The appellant’s answer is an acknowledgment at the time of the question that he recognised there was a potential risk of someone being shot. The tenor of the Judge’s summing up[6] was that the accused’s evidence was effectively an admission that he appreciated the risk of serious harm when he fired the gun but he took the risk all the same.[6] At [36] and [39]. We do not consider that the Judge was correct to say to the jury that the appellant had acknowledged the risk when he shot upwards on the second occasion. This evidence of the appellant was equally explicable on the basis that he recognised a risk to others if he fired at body height, or lower, but no risk if he fired the gun “in an upward fashion”. The appellant’s evidence was that the second shot was a warning shot fired to the side of where Mr Moananui was and in the general direction of men coming down the road and in a “skywards fashion” or similar. The appellant said that, while he had seen four males after he discharged the gun on the first occasion, he had not seen anyone in the park. He said the second shot was a warning shot rather than any deliberate attempt to shoot anyone. Thus, the element of appreciation of risk to safety by the appellant at the time of that second shot was very much in play. It needed to be proved by the Crown beyond reasonable doubt.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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