Collier v The Queen - [2011] NZCA 482

IN THE COURT OF APPEAL OF NEW ZEALAND

CA848/2010
[2011] NZCA 482

BETWEEN HARLEY VANCE COLLIER
Appellant

AND THE QUEEN
Respondent

CA884/2010

AND BETWEEN TIAKI LANCE ERUETI PHILLIPS
Appellant

AND THE QUEEN
Respondent

Hearing: 11 August 2011

Court: Harrison, Rodney Hansen and Andrews JJ

Counsel: E R Fairbrother and G M Fairbrother for Mr Collier
A J S Snell for Mr Phillips
D R La Hood for Respondent

Judgment: 23 September 2011 at 12 pm

JUDGMENT OF THE COURT

A Mr Phillips’ appeal against conviction is dismissed.

B Mr Collier’s appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Table of Contents

Introduction [1]

Background [3]

Mr Phillips’ conviction appeal [12]

(a)        Lack of or late disclosure of relevant information  [12]
(b)        Propensity evidence  [16]
(c)        Identification evidence  [24]
(i)     The muster board  [25]
(ii)     Photographic montage evidence  [30]

Mr Collier’s conviction appeal [34]

(a)        Reliability of identification evidence  [34]
(b)        The failure to distinguish different defences  [45]
(c)        Murderous intent  [49]
(d)        Alibi  [58]

Mr Collier’s sentence appeal [61]

Result [66]

Introduction

Harley Collier and Tiaki Phillips were each found guilty at a trial before a Judge and jury in the High Court on one charge of attempted murder. The trial judge, MacKenzie J, convicted both men and sentenced each to a term of eight years imprisonment cumulative on existing sentences.[1] He also sentenced Mr Collier to a minimum period of imprisonment of five years.
[1] R v Phillips HC Napier CRI-2009-020-4936, 26 November 2010.
Messrs Collier and Phillips appeal against their convictions. Mr Collier also appeals against the imposition of a minimum period of imprisonment.

Background

Messrs Collier and Phillips were serving inmates at Hawkes Bay Regional Prison. Both were accommodated within unit 4A, a stand-alone unit housing 40 inmates. The victim, Ahmed Najim, was also a serving inmate at the same prison. On 27 October 2009 he was moved to unit 4A.
About an hour after his arrival at unit 4A, Mr Najim was sitting on his bed when two other prisoners walked into his cell and jumped on him. He had seen one of the men earlier in the day in unit 4A. He noticed that he had facial tattoos. On inquiry, Mr Najim learned that he was known as “Harley Rogue”. He knew of the other man as “Visions”.
After entering Mr Najim’s cell, Harley Rogue placed Mr Najim into a headlock and wrapped his legs around Mr Najim’s legs. Visions remarked: “Oh you’re Ahmed from Mayfair eh. Gary’s mate”. Mr Najim saw Visions grab something from his pants. Harley Rogue tightened his hold on Mr Najim, who passed out and fell to the floor. Then, when he came to, Mr Najim saw somebody standing on top of and slashing him. His neck was slashed severely in two strokes from each ear to the centre of his throat. His exterior jugular veins and arteries were severed. Mr Najim was left lying and bleeding on his cell floor. He managed…

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 Collier v The Queen

Details

AGLC: Collier v The Queen [2011] NZCA 482
Case: [2011] NZCA 482
Decision Date: 23 September 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Harley Collier and Tiaki Phillips appeal their convictions for attempted murder and Collier appeals his sentence. Collier and Phillips, both inmates at Hawkes Bay Regional Prison, were found guilty of attacking Ahmed Najim, another inmate, in his cell. The primary issue was the identification of the attackers by Najim. Collier and Phillips argue that the trial judge erred in admitting and weighing the identification evidence, admitting propensity evidence, and in his summing up. The Court of Appeal found that the trial judge correctly admitted the identification evidence as it was reliable and properly directed the jury on its weight. The propensity evidence was not admitted as the Crown failed to lead it properly. The summing up was adequate as the trial judge directed the jury on the need for caution with identification evidence and highlighted the Crown and defence cases. Collier's arguments on his sentence were also dismissed as the trial judge correctly applied the law in sentencing Collier to a minimum period of imprisonment.

In conclusion, the Court of Appeal dismissed both Collier's and Phillips' appeals against conviction and Collier's appeal against sentence. The trial judge's decisions on the admissibility of evidence, propensity evidence, and summing up were correct, and the sentence imposed on Collier was also justified under the law.

Orders