Anthony Kevin Peters v The Queen

[2006] NZSC 75

IN THE SUPREME COURT OF NEW ZEALAND

SC 52/2006
[2006] NZSC 75

ANTHONY KEVIN PETERS

v

THE QUEEN

Court:Blanchard, Tipping and McGrath JJ

Counsel:T Fournier for Appellant

B J Horsley for Respondent

Judgment:26 September 2006 

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.

REASONS

[1]       Mr Peters has been convicted of manslaughter after a trial at which he and his co-accused, Ms Southon, were jointly charged with murder.  Before the trial he had sought to be tried separately from Ms Southon but the High Court Judge’s severance decision in his favour was reversed by the Court of Appeal.  He now seeks to appeal directly to this Court against his conviction.

[2]       The only proposed ground of appeal is that in the course of the joint trial the jury heard evidence of an out-of-court statement by Ms Southon admissible against her only but containing material which, it is said, must have prejudiced him in the eyes of the jury.  Prejudice is said to have occurred despite a direction from the Judge, to which it appears no exception has been taken, that the statement was inadmissible against him.

[3]       We are satisfied that leave should not be given for a direct appeal which, in accordance with s 14 of the Supreme Court Act 2003, is not permitted in the absence of exceptional circumstances.

[4]       The circumstances of the case are not exceptional.  The Court of Appeal’s ruling on the pre-trial appeal appears orthodox on the question of severance.  But, more importantly, now that the trial has occurred, the question arising upon an appeal against conviction is whether there has in fact been a miscarriage of justice because the two accused were tried together.  That requires scrutiny of the trial record to see whether the alleged prejudice to Mr Peters from his co-accused’s statement was alleviated by the manner in which the trial proceeded, taking into account particularly the trial Judge’s directions to the jury.  It involves looking at the whole course of the trial, which obviously was not something which could be considered by the Court of Appeal in giving its pre-trial ruling.  The inquiry is therefore a distinctly different one from that previously undertaken by the Court of Appeal, which will in no way be bound by its earlier ruling concerning severance.

[5]       The appropriate course is therefore for any conviction appeal to be taken to the Court of Appeal.

Solicitors:
FS Legal, Christchurch for Appellant
Crown Law Office, Wellington