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Clarke v R

Clarke v R

Case [2021] NZCA 151 3 May 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA31/2019
[2021] NZCA 151

BETWEEN	WHAKAPUMAUTANGA CLARKE Appellant
AND	THE QUEEN Respondent

Hearing:	17 March 2021
Court:	Clifford, Brewer and Dunningham JJ
Counsel:	J D Munro and J N Olsen for Appellant M J Lillico for Respondent
Judgment:	3 May 2021 at 3.00 pm

JUDGMENT OF THE COURT

AThe applications for an extension of time to appeal, and to adduce fresh evidence, are granted.
BThe appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

The appellant, Mr Clarke, appeals his conviction and sentence having been found guilty of murder and aggravated robbery following a trial before Katz J and a jury at the High Court in Rotorua. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.[1]
[1]R v Chase [2018] NZHC 3332 [Judgment under appeal].
Mr Clarke was tried alongside two co-defendants — Mr Chase and Mr Griffin — both of whom were found guilty of aggravated robbery. Mr Griffin was also found guilty of manslaughter.

Applications for extension of time and fresh evidence

Mr Clarke commenced an “as-of right” appeal against conviction in 2019,[2] but after changing counsel he subsequently wanted to appeal his sentence also.[3] That appeal was out of time, so an extension of time is required. He also applies to adduce fresh evidence, namely a cultural report prepared by an alcohol and drug clinician from November 2020, to support his sentence appeal. The Crown does not oppose either of those applications. We accordingly grant both of them.

Grounds of appeal

[2]Criminal Procedure Act 2011, s 229.

[3]Section 244.

The conviction appeal turns on a direction the Judge gave following a jury question. Counsel for Mr Clarke, Mr Munro, submits the definition of “likely” given by the Judge at this juncture “did not accurately reflect the law and permitted the jury to convict Mr Clarke on a lesser, impermissible degree of foresight”.
The sentence appeal is based on the content of a further s 27 cultural report prepared by a registered psychologist and drug and alcohol clinician. It is submitted that, had this report been available at sentencing, the Judge could have concluded it would be manifestly unjust to impose a MPI of 17 years.[4]

The offending

[4]Sentencing Act 2002, s 104.

On 20 July 2017, Mr Clarke and his two co-defendants planned to carry out an armed robbery at the property of the victim, Scott Henry, in order to steal drugs and money from him.
Prior to the robbery that evening, one of Mr Clarke’s two co-defendants collected three firearms (including a shotgun), and ammunition. The two co‑defendants then picked up a female associate who knew where the victim lived, and met Mr Clarke at a pre‑arranged meeting point.
The defendants made a further stop ahead of arriving at the victim’s address where they removed their gang patches. When Mr Clarke got back into the car he…

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 Clarke v R

Details

AGLC: Clarke v R [2021] NZCA 151
Case: [2021] NZCA 151
Decision Date: 3 May 2021 at 3.00 pm

CaseChat Overview and Summary

Clarke appeals his conviction and sentence for murder and aggravated robbery. The appeal against conviction focuses on the trial judge's direction to the jury regarding the definition of "likely" in the context of murderous intent. The appeal against sentence argues that a new cultural report, which was not available at the time of sentencing, indicates that imposing a minimum period of imprisonment (MPI) of 17 years would be manifestly unjust. The Court of Appeal considered the applications for an extension of time and fresh evidence, and granted both. Regarding the appeal against conviction, the Court found that the trial judge's direction to the jury was consistent with established authority and did not constitute an error. The appeal against sentence was also dismissed, as the Court held that the difference between the proposed 15-year MPI and the statutory 17-year MPI was not significant enough to constitute manifest injustice.

The final orders of the Court were to grant the applications for an extension of time to appeal and to adduce fresh evidence, and to dismiss the appeal against conviction and sentence. The appellant's conviction and sentence for murder and aggravated robbery remain in place.

Orders