Beswick v Police - [2024] NZHC 3502

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-231

[2024] NZHC 3502

IN THE MATTER of an appeal against conviction

BETWEEN

SHANDELL BESWICK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 November 2024

Appearances:

A McKenzie for Appellant M Fulton for Respondent

Judgment:

21 November 2024

ORAL JUDGMENT OF OSBORNE J

Introduction

[1] Shandell Beswick, with two co-defendants, pleaded guilty to attempted burglary.1 Ms Beswick and one co-defendant, Kauri Baker, were also convicted of two arms offences: unlawful possession of a cut-down semi-automatic .22 LR Ruger2 and a prohibited magazine.3 On 10 May 2024, Judge Neave found the firearm and magazine charges proven following a trial (the Judgment).4 Ms Beswick appeals the two convictions.

1      Crimes Act 1961, ss 231(1)(a), 72 and 311; maximum penalty five years’ imprisonment.
2      Arms Act 1983, s 50D; maximum penalty five years’ imprisonment.
3      Section 50B; maximum penalty two years’ imprisonment.
4      Police v Kura [2024] NZDC 10594.

BESWICK v NEW ZEALAND POLICE [2024] NZHC 3502 [21 November 2024]

Facts

[2] Around 4 am on 24 August 2023, Ms Beswick, Mr Baker and Poona Kura were in Addington, Christchurch. Ms Beswick drove past Black Sheep Trading. She reversed a short time later and Mr Baker exited the front passenger seat. Mr Baker approached the premises, used a tool to remove the door seals and worked at removing the windowpane from the door. Mr Kura was in the rear right passenger seat and got out to approach the premises. He attempted to pull a security light fixture off the wall but was unsuccessful. After removing the glass screen, Mr Baker realised there was a further metal gate that prevented access to the store. He replaced the glass pane before he and Mr Kura returned to the car.

[3] Ms Beswick remained in the car at all times keeping a lookout. Upon the others’ return, she drove off. She drove a short distance before police stopped the vehicle. Mr Baker tried to climb into the driver’s seat to drive the vehicle away. He was tasered and became compliant. As Ms Beswick was removed from the car, a firearm’s silencer dropped onto the road. Police invoked powers under the Search and Surveillance Act 2012 to search the car. A black bag was found under the driver’s seat, in front of where Mr Kura’s feet had been. Inside the bag was the cut-off rifle. It had a magazine attached to it with 20 rounds in the magazine and one round in the chamber ready to be fired.

Principles on appeal

[4] Section 232 Criminal Procedure Act 2011 provides the High Court may allow an appeal against conviction only if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation…

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 Beswick v Police

Details

AGLC: Beswick v Police [2024] NZHC 3502
Case: [2024] NZHC 3502
Decision Date: 21 November 2024

CaseChat Overview and Summary

Shandell Beswick appeals against two convictions for firearm and magazine possession. The convictions were upheld by Judge Neave, who found the firearm and magazine charges proven following a trial. Ms Beswick argues that the Judge erred in his assessment of the evidence to the extent that a miscarriage of justice occurred. The appeal court is required to form its own view of the facts and if it reaches a different conclusion, the trial judge necessarily erred and the appeal must be allowed. The onus is on Ms Beswick to show that an error occurred.

The appeal court found that the Judge's decision was open to him on the facts. While Ms Beswick had provided a clear explanation for how the bag containing the firearm and magazine came to be under the driver's seat, the Judge was entitled to assess the evidence as a whole. The Judge was clearly not impressed by the candour or credibility of either defendant. The Judge did not err in considering the whole of the evidence to determine the credibility of the witnesses and assess whether Ms Beswick had discharged the onus under s 66 of the Arms Act 1983. The appeal court found that the Judge's findings were open to him on the facts and that an error had not been established.

The appeal was dismissed.

Orders