Archibald v The Queen - [2014] NZCA 443

IN THE COURT OF APPEAL OF NEW ZEALAND

CA726/2013
[2014] NZCA 443

BETWEEN	NIGEL GORDON ARCHIBALD Appellant
AND	THE QUEEN Respondent

Hearing:	1 September 2014
Court:	Wild, MacKenzie and Andrews JJ
Counsel:	L Ord for Appellant H W Ebersohn for Respondent
Judgment:	8 September 2014 at 2.30 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal, which is against conviction only, is dismissed.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

Mr Archibald filed his notice of appeal on 25 October 2013, some eight months out of time. Mr Archibald has never satisfactorily explained that delay. Further, Mr Archibald has not prosecuted his appeal with diligence. The Court has had to give timetabling and other directions on several occasions. Despite those shortcomings, we have decided to grant Mr Archibald an extension of time for his appeal, and to deal with it on its merits.
The point taken on the appeal is that the absence of a direction by the trial Judge under s 122 of the Evidence Act 2006 resulted in a miscarriage of justice.

Facts

Mr Archibald was one of four accused tried before Judge Mill and a jury in the Wellington District Court in November 2012. He and two others were convicted of aggravated robbery. Three of the accused, excluding Mr Archibald, were also convicted of wounding a Mr Andrew Howes[1] with intent to cause him grievous bodily harm following the robbery. Mr Howes had also been involved in the robbery, but had earlier pleaded guilty.
[1]Also known by the surname Howse. But we will use the name Howes.
On the evening of 26 July 2011 a number of men associated with the Nomads gang were at a gathering at Mr Howes’ home in Colombo Rd, Masterton. During the evening Messrs Howes, Namana and Thompson left the house in a car and went and robbed a “tinnie house” on Church St in Masterton.
The Crown alleged Mr Archibald was a party to that robbery because he had taken a sawn off .22 calibre rifle out of the fireplace in the Colombo Rd house and passed it out the window to Mr Namana, shortly before the three robbers left armed with the rifle. The only evidence against Mr Archibald came from Mr Tyler Hodsen.[2] Mr Hodsen, 17 at the time, is Mr Howes’ son.
[2]Mr Hodsen also uses the surname Howse. But we will stick to Hodsen.
Mr Howes gave evidence for the Crown at the trial. He said the robbery was his idea and that he was the ringleader. He identified Messrs Thompson and Namana as the other two robbers and said Mr Thompson had the rifle. He did not implicate Mr Archibald.
We have kept this factual background brief. It is set out in more detail in this Court’s judgment in Namana and Thompson v R,[3] to which we will revert, because the point taken on this appeal was also taken unsuccessfully by…

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 Archibald v The Queen

Details

AGLC: Archibald v The Queen [2014] NZCA 443
Case: [2014] NZCA 443
Decision Date: 8 September 2014 at 2.30 pm

CaseChat Overview and Summary

Nigel Gordon Archibald, the appellant, brought an appeal against his conviction in the Wellington District Court to the Court of Appeal of New Zealand. The appeal was against his conviction only, and Archibald argued that the absence of a direction by the trial judge under section 122 of the Evidence Act 2006 resulted in a miscarriage of justice. Archibald was one of four accused tried in the Wellington District Court in November 2012 and was convicted of aggravated robbery. The only evidence against Archibald came from Tyler Hodsen, the son of one of the victims, who claimed to have seen Archibald passing a sawn-off .22 calibre rifle out of the window before the robbery. The primary issue in this appeal was whether the trial judge should have given a direction under section 122 of the Evidence Act 2006, warning the jury about the potential unreliability of Hodsen's evidence.

The Court of Appeal found that the trial judge had adequately directed the jury about the potential unreliability of Hodsen's evidence. The defence counsel had extensively challenged Hodsen's credibility and reliability during cross-examination and in their closing address to the jury. The trial judge also emphasised the importance of considering whether Hodsen and the other witness, Andrew Howes, had motives to lie and cautioned the jury about the dangers of relying on a mistaken identification. The Court concluded that given the circumstances, the potential unreliability of Hodsen's evidence was obvious to the jury, and therefore, the trial judge did not need to give an explicit direction under section 122.

In conclusion, the Court of Appeal granted Archibald's application for an extension of time to appeal but dismissed the appeal against his conviction. The court found that the trial judge had adequately directed the jury regarding the potential unreliability of Hodsen's evidence, and therefore, no miscarriage of justice had occurred in Archibald's trial.

Orders