| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA712/2020 [2021] NZCA 513 |
| BETWEEN | CHANTELLE ELAINE ANDERSON |
| AND | THE QUEEN |
| Hearing: | 1 September 2021 |
Court: | Gilbert, Duffy and Peters JJ |
Counsel: | A J McKenzie for Appellant |
Judgment: | 6 October 2021 at 2 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
On 5 October 2020, following a jury trial before Judge B P Callaghan in the District Court at Christchurch, Ms Anderson was found guilty of wounding with intent to cause grievous bodily harm, kidnapping, and theft (under $500).[1] The jury also found Ms Anderson not guilty of assault with a weapon, being a hammer.
[1]Crimes Act 1961, ss 188(1), 209 and 219.
Ms Anderson stood trial with her co-defendant, Mr Timothy Roberts. Mr Roberts was charged with common assault, kidnapping, theft (under $500) and as a party to the wounding. The jury found Mr Roberts guilty of the assault and theft.
The victim of the wounding, kidnapping and assault was a Mr Scott Findlay. The theft (of petrol) occurred in the course of the kidnapping, and we say no more about it.
On 9 November 2020, Judge Callaghan sentenced Ms Anderson to six years and three months’ imprisonment on the wounding charge, and concurrent sentences of two years on the kidnapping charge and one month on the theft.[2] Ms Anderson also received a first strike warning on the wounding and kidnapping charges.
[2]R v Anderson [2020] NZDC 23003.
Ms Anderson appeals against her convictions on the basis that a miscarriage of justice has occurred.[3] In particular, Ms Anderson submits several errors at trial created a real risk the outcome of the trial was affected.
[3]Criminal Procedure Act 2011, s 232(2)(c).
The principal error alleged is that the Judge ought to have directed the jury that they might draw an inference adverse to the Crown case as a result of the Crown’s failure to call AS as a witness. AS was present during the relevant events and Ms Anderson contended that AS, not her, was responsible for Mr Findlay’s injuries.
Ms Anderson also contends the following errors themselves caused or contributed to a miscarriage:
(a)the Judge erred by declining Mr Roberts’ application to dismiss the kidnapping and wounding charges against him, thereby precluding Ms Anderson from calling him as a witness in her defence; and
(b)the Judge’s direction as to Mr Findlay’s reliability or otherwise was insufficient.
If her appeal is successful, Ms Anderson submits her convictions should be quashed with no retrial ordered, as she has already served two years and six months’ imprisonment and the delay for any rehearing means it would be “inherently unlikely” for a new jury to convict.
Ms Anderson required an extension of time in which to bring this appeal. Collins J granted the necessary extension in a minute issued on 2 February 2021.[4]
Background
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- AGLC
- Anderson v The Queen [2021] NZCA 513
- Case
- [2021] NZCA 513
- Decision Date
CaseChat Overview and Summary
The Court of Appeal rejected all grounds of appeal. Regarding the first ground, the court held that the trial judge's decision not to give a direction on the failure to call AS as a witness was not an error, as the absence of a direction was often the best course in criminal proceedings. The court also held that the absence of AS did not give rise to a miscarriage of justice, given the compelling case against Ms Anderson. Regarding the second ground, the court held that there was no evidence that Mr McKenzie, the appellant's counsel, wished to call Mr Roberts in Ms Anderson's defence, and therefore, there was no miscarriage of justice. Regarding the third ground, the court held that the judge's direction to the jury regarding the reliability and weight of Mr Findlay's evidence was adequate, and that any further direction would have risked giving the signal that the court thought Mr Findlay was lying. The appeal against conviction was dismissed, and the appellant's convictions were upheld.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
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