Carter v The Queen - [2016] NZCA 629

IN THE COURT OF APPEAL OF NEW ZEALAND

CA327/2014
[2016] NZCA 629

BETWEEN	JOHN ANDREW CARTER Appellant
AND	THE QUEEN Respondent

Hearing:	8 November 2016
Court:	Asher, Woodhouse and Ellis JJ
Counsel:	M R Bott for Appellant H W Ebersohn for Respondent
Judgment:	9 November 2016 at 11.45 am
Reasons:	21 December 2016

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe application for leave to adduce further evidence is granted.
CThe appeal against conviction is dismissed.
DThe appeal against sentence is allowed.
EThe concurrent sentences of three years and three months’ imprisonment are quashed and substituted with concurrent sentences of three years’ imprisonment.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

The appellant, John Carter, challenges his conviction and sentence on two counts of theft, having been convicted on 19 July 2013 after a jury trial before Judge Wade in the Dunedin District Court and sentenced to three years and three months’ imprisonment.[1] During the trial Mr Carter acted for himself and gave evidence. On appeal he was represented by Mr Bott.
[1]R v Carter DC Auckland CRI-2011-076-255, 12 September 2013.
At the trial the Crown had presented evidence showing that on two occasions Mr Carter had, using a hire truck, stolen metal from the premises of the Roxdale Foods factory. It was a strong Crown case involving, as we will set out, a significant body of evidence showing that Mr Carter was the thief. He appeals his convictions, raising seven points. The most significant is that his cognitive impairment meant he was unable to act on his own behalf and the trial was unfair. He also appeals his sentence on the grounds it was manifestly excessive and did not account for his health difficulties. We will deal with the points in order after summarising the background as set out in the Crown evidence.
Mr Carter’s notice of appeal was filed out of time. The Crown did not oppose an extension and we have granted an extension of time to appeal accordingly.
In a results decision issued on 9 November 2016 we dismissed the appeal against conviction and allowed the appeal against sentence.[2] Our reasons now follow.

Background

[2]Carter v R [2016] NZCA 535.

In relation to the first alleged theft of the metal, the Crown case was that a person giving the name of John Carter leased a truck with a crane shortly before the theft. A document examiner compared the handwriting on the truck hire forms to handwriting specimens of Mr Carter and concluded there were similarities and indications that the author was the same. The stolen metal was held at the factory of Roxdale Foods in a semi-rural setting. The size and weight of the metal required a truck and crane to move it easily.
A cashier weighbridge operator at a scrap metal dealer who knew Mr Carter identified him as the person who at around the time of the theft arrived in a…

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 Carter v The Queen

Details

AGLC: Carter v The Queen [2016] NZCA 629
Case: [2016] NZCA 629
Decision Date: 9 November 2016 at 11.45 am

CaseChat Overview and Summary

John Carter appealed against his conviction and sentence in the Dunedin District Court for two counts of theft. The Crown had presented a strong case involving significant evidence that Mr Carter was the thief. Carter’s appeal raised several points, including that his cognitive impairment meant he was unable to act on his own behalf and that the trial was unfair. He also appealed his sentence on the grounds that it was manifestly excessive and did not account for his health difficulties. The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The appeal against conviction was dismissed because the trial was fair, Mr Carter had chosen to represent himself, and he had the capacity to participate directly in the trial. The appeal against sentence was allowed because there was an error in the sentencing process, as the Judge imposed an uplift of three months’ imprisonment to reflect Mr Carter’s prior offending, but there were no convictions of a similar character after the year 2002. The concurrent sentences of three years and three months’ imprisonment were quashed and substituted with concurrent sentences of three years’ imprisonment.

Orders