Austin v The Queen - [2018] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA514/2017
[2018] NZCA 334

BETWEEN	SHAUN DAVID AUSTIN Appellant
AND	THE QUEEN Respondent

CA523/2017
BETWEEN	ROBERT ERIC AUSTIN Appellant
AND	THE QUEEN Respondent

Hearing:	25 July 2018
Court:	Williams, Brewer and Thomas JJ
Counsel:	W T Nabney for Mr Shaun Austin A F Rickard-Simms for Mr Robert Austin P D Marshall for Respondent
Judgment:	30 August 2018 at 3.00 pm

JUDGMENT OF THE COURT

AMr Shaun Austin’s appeal against conviction is dismissed.
BMr Robert Austin’s appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

In the early hours of the morning of 1 April 2015, two men attacked and robbed two other men at Ti Point Wharf in Leigh. The attack was violent. One of the attackers struck one of the victims in the head with an axe, causing loss of consciousness and serious injury.
Mr Shaun Austin and Mr Robert Austin, brothers, were eventually arrested and charged in relation to this offending.[1] Both denied being the attackers. Both denied being at the scene.
[1]Mr Shaun Austin was charged with aggravated robbery (Crimes Act 1961, s 235; the maximum sentence for which is 14 years’ imprisonment); wounding with intent to cause grievous bodily harm (s 188(1); the maximum sentence for which is 14 years’ imprisonment); and injuring with intent to cause injury (s 189(2); the maximum sentence for which is five years’ imprisonment). Mr Robert Austin was charged with wounding with intent to cause grievous bodily harm and injuring with intent to cause injury.
At trial, the issue was whether the Crown could prove the attackers were (individually) the Austin brothers. Neither gave evidence. The jury’s task was to evaluate the circumstantial evidence presented by the Crown in the light of the cross‑examinations and the submissions of counsel.
The Crown’s case was very strong. We do not need to set it out. The jury convicted the appellants.
Mr Shaun Austin now appeals his convictions on the ground his counsel, Ms Wickliffe, did not conduct his defence in accordance with his instructions. In his affidavit, and in his oral evidence before us, he maintains that although he initially told Ms Wickliffe he was not present during the attack, he changed his instructions shortly before trial to the effect that he was present at the incident but he was not responsible for the assaults and robbery.
Mr Robert Austin appeals his convictions on the ground the trial Judge, Judge Blackie, did not properly instruct the jury on how to deal with circumstantial evidence going to identity. The Judge, it is submitted, instead gave the jury the impression that identity had been established.
In the event his convictions stand, Mr Robert Austin also appeals his sentence of six-and-a-half years’ imprisonment. He says it is manifestly excessive.

Mr Shaun Austin’s appeal

It is fundamental law that a defendant has the right to have his or her defence put at his or…

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 Austin v The Queen

Details

AGLC: Austin v The Queen [2018] NZCA 334
Case: [2018] NZCA 334
Decision Date: 30 August 2018 at 3.00 pm

CaseChat Overview and Summary

Shaun David Austin and Robert Eric Austin, brothers, appeal against their convictions and sentences for their roles in a violent attack and robbery at Ti Point Wharf in Leigh. Shaun was convicted of aggravated robbery, wounding with intent to cause grievous bodily harm, and injuring with intent to cause injury. Robert was convicted of wounding with intent to cause grievous bodily harm and injuring with intent to cause injury. The attacks were violent, with one of the victims struck in the head with an axe, causing loss of consciousness and serious injury.

Shaun appeals on the ground that his counsel did not conduct his defence in accordance with his instructions. He claims he instructed his counsel he was present at the incident but not responsible for the assaults and robbery. Robert appeals on the ground the trial judge did not properly instruct the jury on how to deal with circumstantial evidence going to identity. He also appeals his sentence of six-and-a-half years’ imprisonment, which he claims is manifestly excessive.

The Court finds Shaun's counsel did follow his instructions and dismisses his appeal. The Court finds the trial judge properly instructed the jury and dismisses Robert's appeal against conviction. The Court finds the sentence for Robert was within the range available to the judge and dismisses his appeal against sentence.

Shaun's appeal against conviction is dismissed. Robert's appeals against conviction and sentence are dismissed.

Orders