Carlos v R - [2010] NZCA 248

IN THE COURT OF APPEAL OF NEW ZEALAND
CA824/2009
[2010] NZCA 248

BETWEENANTONIO BANDERAS CARLOS

Appellant

ANDTHE QUEEN

Respondent

CA266/2010

AND BETWEEN KHALIDA HUSEN

Appellant

ANDTHE QUEEN

Respondent

Hearing:26 May 2010

Court:Randerson, Wild and Rodney Hansen JJ
Counsel:P J Kaye for Appellants

M D Downs for Respondent

Judgment:11 June 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal in CA824/2009 against conviction and sentence is dismissed.
BThe appeal in CA266/2010 was abandoned and the application to reinstate it is dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]        The appellants were each convicted after trial on one count of arson and one of attempting to obtain a pecuniary advantage by deception. The jury brought in majority verdicts in each case. They were each sentenced by Potter J on 18 December 2009 to imprisonment for four years. [1]
[1]      R v Carlos HC Auckland CRI-2008-0925680, 18 December 2009.
[2]        The offending related to a fire at a cafe operated by the appellants in Howick, Auckland. The Crown case was that the appellants were in financial difficulties and deliberately lit the fire in an attempt to make a claim on their insurer for the losses they claimed to have suffered.
[3]        The appellant in CA824/2009 (Mr Carlos) appeals against conviction on the sole ground that the Judge erred in directing the jury in relation to the deception charge that they did not need to be unanimous (or reach the necessary majority) as to which of four particularised representations was established. He also appeals against sentence.
[4]        We record that the appellant in CA266/2010 (Ms Husen) earlier abandoned her appeal against conviction and sentence and seeks to reinstate it. She relies on the same grounds as Mr Carlos.
Background
[5]        The background facts are succinctly stated in Mr Kaye’s submission on behalf of the appellants:
2.1The Appellants are husband and wife. Together they owned and operated a restaurant known as Cafe Hasan Baba in Howick, Auckland. At approximately 3.11am on the 17^th of February 2008, a large explosion occurred at the restaurant premises. The building generally, and the restaurant in particular, were extensively damaged.
2.2During the evening prior to the explosion, customers were required to pay for their meals in cash as the Eftpos machine was not working. The Appellants left the restaurant shortly before 2am.
2.3Shortly after 3am that morning, a member of the public was walking past Cafe Hasan Baba when he saw a flash followed by a large explosion which caused the doors and front windows of the cafe to be thrown onto the street and across the road. Thankfully this member of the public was unharmed.
2.4Evidence was given as to the finances of the Appellants, showing that they were in debt at the time of the explosion. There was significant insurance cover on the Cafe Hasan Baba. After the explosion, the Appellants attempted to claim on the insurance, however the insurance company refused to pay the claim until the completion of the…

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 Carlos v R

Details

AGLC: Carlos v R [2010] NZCA 248
Case: [2010] NZCA 248
Decision Date: 11 June 2010

CaseChat Overview and Summary

Antonio Banderas Carlos and Khalida Hasan Husen were convicted after a trial on charges of arson and attempting to obtain a pecuniary advantage by deception, related to a fire at a cafe they operated in Howick, Auckland. They were each sentenced to imprisonment for four years. Mr Carlos appeals against conviction on the basis that the trial judge erred in directing the jury in relation to the deception charge that they did not need to be unanimous (or reach the necessary majority) as to which of four particularised representations was established. He also appeals against sentence. Ms Husen abandoned her appeal against conviction and sentence and seeks to reinstate it, relying on the same grounds as Mr Carlos. The Court found that the trial judge's direction to the jury was in error, but it did not affect the verdict as the jury must have been satisfied that the fire was deliberately lit and the first of the alleged misrepresentations in count 2 was established. The appeal by Mr Carlos against conviction is dismissed. In the light of the Court's conclusion on the appeal against conviction, there is no proper basis to reinstate Ms Husen's abandoned appeal. The appeal of Mr Carlos against sentence is dismissed. There is no proper basis to reinstate Ms Husen's sentence appeal.

Orders