Anderson v The Queen - [2021] NZCA 513

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA712/2020
[2021] NZCA 513

BETWEEN	CHANTELLE ELAINE ANDERSON Appellant
AND	THE QUEEN Respondent

Hearing:	1 September 2021
Court:	Gilbert, Duffy and Peters JJ
Counsel:	A J McKenzie for Appellant B C L Charmley and S E Trounson for Respondent
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

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 Anderson v The Queen

Details

AGLC: Anderson v The Queen [2021] NZCA 513
Case: [2021] NZCA 513
Decision Date: 6 October 2021 at 2 pm

CaseChat Overview and Summary

Chantelle Elaine Anderson appeals against her conviction for wounding with intent to cause grievous bodily harm, kidnapping, and theft. The appeal was dismissed by the Court of Appeal of New Zealand. The appeal hinged on the appellant's contention that several errors during the trial created a risk of a miscarriage of justice. The first alleged error was the trial judge's refusal to direct 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. The second was the judge's refusal to discharge the co-defendant, Mr Roberts, from the kidnapping and wounding charges, which precluded him from being called as a witness in Ms Anderson's defence. The third was the judge's direction to the jury regarding the reliability and weight of Mr Findlay's evidence.

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