| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA27/2019 [2021] NZCA 120 |
| BETWEEN | CHRISTOPHER JAMES BROWN |
| AND | THE QUEEN |
| Hearing: | 15 February 2021 |
Court: | Gilbert, Mallon and Edwards JJ |
Counsel: | F E Guy Kidd QC and L C Preston for Appellant |
Judgment: | 20 April 2021 at 9.30 am |
JUDGMENT OF THE COURT
AThe application to adduce further evidence on appeal is granted.
BThe appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
Christopher Brown, then aged 19, and six other young people were charged with the murder of Jack McAllister after he was stabbed 14 times with a hunting knife at ILT Stadium Southland (the Stadium) in Invercargill shortly after 11 pm on 7 June 2017. Mr McAllister, who was also 19, was known to all the defendants and he and Mr Brown were cousins.
Brayden Whiting‑Roff (aged 20) inflicted the fatal stab wounds. He pleaded guilty to murder shortly before the trial and was subsequently sentenced to life imprisonment and ordered to serve a minimum period of imprisonment of 12 years and six months.[1]
[1]R v Whiting-Roff [2018] NZHC 3239 [Sentencing judgment].
Georgia Dickey (aged 16) helped plan the attack and participated in it by punching Mr McAllister and restraining him while he was being stabbed by Mr Whiting-Roff. Ms Dickey pleaded guilty as a party to the murder four months prior to the trial and agreed to give evidence for the Crown. She was sentenced on 13 June 2018 to life imprisonment and ordered to serve a minimum period of imprisonment of 10 years.[2] She filed an appeal against her sentence on 12 July 2018 (three weeks before trial commenced for Mr Brown and the other defendants) contending that the sentence was manifestly excessive given her youth, prospects for rehabilitation and assistance by agreeing to give evidence for the Crown at the forthcoming trial.
The Crown alleged that Mr Brown was a party to the murder on two alternative bases. First, it was alleged that he was one of two or more people who agreed to prosecute an unlawful purpose (a serious assault on Mr McAllister with intent to cause him serious injury) and to assist each other in doing this, knowing Mr McAllister’s death was a probable consequence in the sense that there was a real or substantial risk it could happen.[3] Secondly, the Crown alleged that Mr Brown encouraged or assisted Mr Whiting-Roff to murder Mr McAllister.[4]
[3]Crimes Act 1961, s 66(2).
[4]Section 66(1)(b) or (c).
There was little dispute about the basic facts of what happened on the night of the attack or in the lead-up to it. The primary issues concerned the nature of the attack Mr Brown envisaged (a single punch as he contended in his police interview or a far more serious knife attack as occurred) and the extent…
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- Brown v The Queen [2021] NZCA 120
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- [2021] NZCA 120
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CaseChat Overview and Summary
The central legal issue in this case was whether the judge was correct in declining to issue a reliability warning under section 122(1)(c) of the Evidence Act 2006. The provision allows for such warnings when there is evidence that a witness may have a motive to give false evidence that is prejudicial to the defendant. The court needed to determine if Ms Dickey's situation fell under this provision. The defence argued that Ms Dickey's potential hope for a reduced sentence constituted a motive to lie, while the Crown maintained that her motive was to provide evidence, not to lie. The judge concluded that while Ms Dickey may have had a motive to provide evidence, there was no clear evidence she had a motive to lie.
The court's reasoning was based on the distinction between a motive to provide evidence and a motive to lie. The judge found that although Ms Dickey may have hoped for a reduced sentence by providing evidence, this did not necessarily mean she had a motive to lie. The judge highlighted that if Ms Dickey lied and was found to have done so, it would be counterproductive to the Crown's case and her own interests. The judge concluded that Ms Dickey's motive fell into the category of agreeing to give evidence rather than having an obvious motive to lie. Therefore, the judge decided that standard directions on the assessment of evidence would be sufficient.
The final orders in this case did not require the judge to issue a reliability warning under section 122(1)(c) of the Evidence Act 2006. The judge's decision was upheld as there was no clear evidence that Ms Dickey had a motive to lie. Instead, the standard directions on the assessment of evidence were deemed appropriate. This decision underscores the importance of distinguishing between a witness's motive to give evidence and their motive to lie, and it highlights the judge's discretion in deciding whether to issue a reliability warning.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
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