Albert Wayne Hunter v The Queen - [2013] NZSC 5

IN THE SUPREME COURT OF NEW ZEALAND

SC 78/2012
[2013] NZSC 5

ALBERT WAYNE HUNTER

THE QUEEN

Court: Elias CJ, McGrath and Glazebrook JJ

Counsel: M J Kidd for Applicant
M H Cooke for Respondent

Judgment: 26 February 2013

JUDGMENT OF THE COURT

AThe application for leave to adduce fresh evidence is dismissed.

BThe application for leave to appeal against conviction is dismissed.

CThe application to appeal directly to this Court against his sentence is dismissed.

REASONS OF THE COURT

(Given by Glazebrook J)

Mr Hunter was convicted of nine counts of drug offending following trial in the Auckland District Court. He was sentenced to six years imprisonment on 31 August 2011.[1] His appeal was dismissed by the Court of Appeal on 17 April 2012.[2]Mr Hunter seeks leave to appeal against that judgment.
[1] R v Hunter DC Auckland CRI-2010-404-94, 31 August 2011.
[2] Hunter v R [2012] NZCA 147.
Mr Hunter in his notice of appeal also seeks leave to appeal directly to this Court against the sentence imposed by the District Court. He claims that the fact that he is due for consideration for parole soon constitutes exceptional circumstances.[3]
[3] Supreme Court Act 2003, s 14.
The application to appeal against the conviction and the sentencing decisions are both out of time. Mr Hunter therefore seeks leave to appeal out of time.[4] The application relating to Mr Hunter’s sentence is approximately 13 months out of time. The application relating to Mr Hunter’s conviction is approximately six and a half months out of time.
[4] Supreme Court Rules, s 1(4).
As to the proposed appeal against his sentence, the fact that Mr Hunter may soon be released on parole cannot meet the test for an appeal from the District Court directly to this Court.In any event, no explanation has been given for the delay in attempting to appeal against his sentence. Nor were any submissions filed with regard to the proposed sentence appeal. The application must be dismissed.
As to the proposed appeal against conviction, Mr Hunter’s complaint is that the trial judge did not interview two jurors, with whom Mr Hunter claims he was acquainted. In his notice of appeal, Mr Hunter also claims that his lawyer inadequately represented him at trial and was conflicted.
The juror matter was raised by Mr Hunter’s counsel at the conclusion of the Crown case (which had taken about two weeks). Mr Hunter identified the jurors by their position in the jury box (and not by name). He claimed at trial that he had socialised in a sports bar on a regular basis with one of the jurors. He said that the other juror would have seen him at the “pokie machines” at a casino and that the juror may have harboured feelings of jealousy because Mr Hunter won money.
Judge Perkins, the trial judge, considered whether to make enquiries of the jurors in question but decided there was not enough substance in the complaint to do so. The Court…

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 Wayne Hunter v The Queen

Details

AGLC: Albert Wayne Hunter v The Queen [2013] NZSC 5
Case: [2013] NZSC 5
Decision Date: 26 February 2013

CaseChat Overview and Summary

In the case of Albert Wayne Hunter v The Queen, the Supreme Court of New Zealand considered an appeal by Mr Hunter against his conviction and sentence for drug-related offences. The court dismissed Mr Hunter's applications to appeal against his conviction and sentence, as well as his request to adduce fresh evidence. Mr Hunter was convicted and sentenced in the Auckland District Court and subsequently, his appeal was dismissed by the Court of Appeal. The Supreme Court held that Mr Hunter's applications to appeal against his conviction and sentence were both out of time. The court found that the fact that Mr Hunter may soon be released on parole did not constitute exceptional circumstances for an appeal directly to the Supreme Court against his sentence. Furthermore, the court found that there was no realistic suspicion of bias or prejudice on the part of the jurors, and Mr Hunter's claims regarding his legal representation at trial did not meet the threshold for granting leave to appeal.

The Supreme Court found that Mr Hunter's claims regarding the jurors did not create a realistic basis for suspicion of bias or prejudice on the part of the jurors, and therefore there was no risk of a miscarriage of justice. The court rejected Mr Hunter's claims that his lawyer was conflicted and did not act in his best interests, as no evidence had been submitted to substantiate this claim. The court held that the application to adduce further evidence must be declined, as must the application for leave to appeal against the Court of Appeal judgment. In conclusion, the Supreme Court dismissed all of Mr Hunter's applications.

Orders