Christian v The Queen - [2017] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND

CA666/2016
[2017] NZCA 296

BETWEEN	JORDAN ALEXANDER CHRISTIAN Appellant
AND	THE QUEEN Respondent

Hearing:	20 June 2017
Court:	Asher, Venning and Dobson JJ
Counsel:	M A Simpkins and G Oudyn for Appellant A J Ewing for Respondent
Judgment:	11 July 2017 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed and the conviction for theft is quashed.
BThere is no order for a retrial.

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REASONS OF THE COURT

(Given by Dobson J)

This appeal is brought from a conviction for theft of a motor vehicle that the Crown now accepts should not have been entered. The primary issue is what ought to occur as a consequence of that conviction being quashed. The appellant argued that no further action be taken. The Crown argued that the Court should substitute a conviction for receiving the vehicle in question.
For reasons explained below we quash the theft conviction, and decline to substitute it with a conviction for receiving the motor vehicle in question.

The factual background

The appellant (Mr Christian) and his eight co‑defendants were members or associates of the Head Hunters motorcycle club. The complainant in the case, Mr Perry, had a sexual encounter with the girlfriend of Mr Dwyer, one of the co‑defendants, leaving her with certain injuries which Mr Dwyer considered were the result of Mr Perry having raped her.
Mr Dwyer enlisted the help of his eight co‑defendants to pursue retribution which allegedly included extorting property from Mr Perry. The interactions of various of the defendants with Mr Perry involved their taking possession of three motor vehicles: an Audi; a Volkswagen; and the vehicle directly relevant to the charge in question, an Isuzu Elf truck.
The confrontations between the defendants and Mr Perry began at a house owned by Mr Perry at Lake Tarawera. Some of the defendants were driven there by Mr Maraffio, an employee of Mr Perry who was prevailed upon to take them to Lake Tarawera in the Isuzu Elf from another of Mr Perry’s homes in Mt Maunganui. Mr Perry was taken from his Lake Tarawera home in his Audi and was driven by one of the defendants to another of Mr Perry’s properties in Acacia Bay at Taupō. The Volkswagen was taken from the Lake Tarawera property at around the same time. Doubt was cast on Mr Perry’s identification of Mr Christian as the man who travelled in the back seat of his Audi on the journey from Lake Tarawera to Acacia Bay, when he was unable to confirm that in cross-examination.
It was clear that Mr Christian was at Mr Perry’s Acacia Bay property from his DNA being present and from other evidence. After some hours at the Acacia Bay property a number of the defendants drove Mr Perry in his Audi into central Taupō. There he withdrew $10,000 from a bank and handed $7,000 of this to one of Mr Christian’s co‑defendants. Mr Perry’s belief was that the co‑defendant…

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 Christian v The Queen

Details

AGLC: Christian v The Queen [2017] NZCA 296
Case: [2017] NZCA 296
Decision Date: 11 July 2017 at 10.30 am

CaseChat Overview and Summary

Jordan Alexander Christian appeals against his conviction for theft of a motor vehicle, specifically an Isuzu Elf truck. The case was heard by the Court of Appeal of New Zealand, with Asher, Venning, and Dobson JJ presiding. The primary issue in this appeal is the appropriate consequence of quashing the conviction for theft, with the appellant arguing for no further action and the Crown arguing for a substitution of the conviction with one for receiving the stolen vehicle. The court must determine whether it has the discretion to substitute a conviction for receiving under s 234 of the Criminal Procedure Act and whether the jury must have been satisfied of the facts that prove the appellant guilty of receiving.

The court found that the conviction for theft cannot stand as there is no evidence that Christian was present when the vehicle was taken or that he aided or abetted the theft. Additionally, there has been no conviction of a principal party for the theft, and the acquittals of Christian's co-defendants on related charges further undermine the conviction. The court was also satisfied that the alternative grounds for challenging the conviction, such as alleged errors in the summing-up and anticipatory reaction to an application to discharge Christian, do not assume relevance in determining whether a substituted conviction should be ordered.

In deciding whether to substitute a conviction for receiving, the court considered the requirements of s 234(2) of the Criminal Procedure Act, which provides that a conviction for a different offence may be entered if the court is satisfied that the appellant could have been found guilty of that offence at trial and that the jury must have been satisfied of the facts that prove guilt. However, the court found that it was equally open to the jury to find that they were not satisfied that the relevant factual propositions had been made out beyond reasonable doubt, particularly given the acquittals of Christian's co-defendants on related charges. The court also noted that the power to substitute under s 234 is not mandatory and ought to be used sparingly, with prejudice to the appellant being a relevant consideration.

The court ultimately decided not to substitute a conviction for receiving the Isuzu Elf, as it could not establish that the jury must have been satisfied that Christian was guilty of receiving. The appeal against conviction is allowed, the conviction for theft is quashed, and there is no order for a retrial.

Orders