| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA141/2011 [2011] NZCA 526 |
| BETWEEN RHEON ST. CLAIR ALBERT |
| AND THE QUEEN |
| Hearing: 4 October 2011 |
| Court: Stevens, Ronald Young and Andrews JJ |
| Counsel: C W J Stevenson for Appellant |
| 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…
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- AGLC
- Albert v The Queen [2011] NZCA 526
- Case
- [2011] NZCA 526
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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