Mr Bartlett appeals his conviction for aggravated robbery following a jury trial before Judge Kellar in the District Court at Christchurch.[1]
[1]Crimes Act 1961, s 235.
He does so on the basis that a miscarriage of justice resulted from:
(a)the Crown’s opening and closing addresses which he says were unfairly emotive and prejudicial to him; and
(b)improper admission of a statement made by him after exercising his right to silence.
Mr Bartlett also appeals his sentence of nine years’ imprisonment.[2] He says that this was manifestly excessive having regard, in particular, to matters raised in a s 27 cultural report.[3]

Background

[2]R v Bartlett [2020] NZDC 1898.

[3]Sentencing Act 2002, s 27.

In respect of the aggravated robbery charge, Mr Bartlett faced trial with a co‑offender, Mr Clarke.
On the afternoon of 4 June 2018 the victim, Mr White, was visiting friends, Messrs Murphy and Milne, at their flat in Christchurch. Mr White was playing chess with Mr Milne when there was a knock at the back door. Mr Milne went to answer it and was confronted by two men, one of whom — Mr Bartlett — was carrying a hammer. In his evidence Mr White said that the pair had the stance of persons “ready to go”.
Mr Milne then sprinted through and ran out the front door to the neighbour’s property. Mr White, who was still in the house, heard a crash and saw “[a] guy come running into the room swinging a hammer”. Several blows were landed on Mr White. He described being hit “as hard as [his attacker] could”. He said that he was then “confronted with a shotgun”. The intruders demanded money and drugs. There was neither in the house. Mr White said the offenders should take whatever they wanted, including his jacket, car keys and watch. He described one of the offenders as wearing a red bandana around his face and a Mongrel Mob patch on his back.
Throughout all of this, Mr Murphy remained in his bedroom with his dog. He heard yelling and when he looked out from his bedroom door saw a man with a hammer, wearing a black vest with a Mongrel Mob patch, standing over Mr White. The other man was also wearing a vest. Mr Murphy put his dog out of the bedroom window and then exited that way himself. He and the dog went to a driveway across the road.
A short time later Mr Murphy saw the intruders coming down his driveway towards a red station wagon.…

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 Bartlett v The Queen

Details

AGLC: Bartlett v The Queen [2021] NZCA 152
Case: [2021] NZCA 152
Decision Date: 30 April 2021 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Levi Bartlett appealed against his conviction for aggravated robbery and the sentence imposed. The primary legal issues were whether prosecutorial misconduct and the admission of a statement made after the assertion of the right to silence led to a miscarriage of justice, and whether the sentence was manifestly excessive. The Court found that the Crown's conduct during the trial was not unfairly emotive or prejudicial, and that the police's questioning following the assertion of the right to silence was not oppressive. The Court also determined that the sentence was not manifestly excessive, as the Judge had appropriately considered the cultural factors highlighted in the s 27 report. Consequently, the conviction appeal and the sentence appeal were dismissed.

Orders