Collins v The Queen - [2014] NZCA 342

IN THE COURT OF APPEAL OF NEW ZEALAND

CA210/2013
[2014] NZCA 342

BETWEEN	NIGEL JOHN COLLINS Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	P J Davison QC and H D L Steele for Appellant B D Tantrum and F M T Culliney for Respondent
Judgment:	23 July 2014 at 12.30 pm

JUDGMENT OF THE COURT

AThe applications for leave to adduce further evidence are declined.
BThe appeal against conviction is dismissed.
CThe appeal against that part of the sentence ordering payment of reparation of $4,000 to Mr Boyd is allowed and that part of the order is quashed.
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REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, Nigel John Collins, was found guilty and convicted following a Judge alone trial before Judge Hinton in the Auckland District Court of five charges of theft under s 221 of the Crimes Act 1961.[1] Each of these charges related to the dishonest taking of and dealing with cattle from properties contiguous with the Collins’ farm owned by Heather Jones and Arthur Mayall (the Mayalls) and John Boyd (Mr Boyd).
[1]R v Collins DC Auckland CRI-2010-084-328, 19 October 2012.
Mr Collins appeals against these convictions on the ground that the failure of Nino Nish, an employee of Mr Collins called as a witness on his behalf, to give truthful and corroborating evidence in relation to the ear tagging of animals on Mr Collins’ farm has resulted in a miscarriage of justice pursuant to s 385(1)(c) of the Crimes Act.[2]
[2]The Crimes Act appeal provisions were repealed as from 1 July 2013 and replaced with appeal provisions in the Criminal Procedure Act 2011. Any case commenced prior to 1 July 2013 is however still required to be determined in accordance with the Crimes Act appeal provisions: Criminal Procedure Act, s 397.
Mr Collins seeks leave pursuant to s 389 of the Crimes Act to adduce evidence from:
(a)Mr Nish;
(b)Michael Rhodes, a private investigator, who took a statement from Mr Nish in December 2011; and
(c)Greg Bradford, trial counsel for Mr Collins.
Mr Collins has filed affidavits from each of Messrs Nish, Rhodes and Bradford.
Mr Nish sets out the evidence he now wishes to give, and appends an original witness statement taken by Mr Rhodes.
Mr Nish says that under cross-examination, and inconsistently with his written witness statement, he said that he could not recall the last time he had tagged any cows.[3] He now seeks to change his evidence by confirming that in early 2010 he had tagged or retagged a number of beef and dairy cows in preparation for their being sent to the freezing works. He says that his changed account is truthful.
[3]We explain later the significance of the “tagging” issue.
By way of explanation for this inconsistency, Mr Nish states in his affidavit that he panicked in the witness box, thinking that if he acknowledged tagging the animals he would be seen as responsible and allegations…

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 Collins v The Queen

Details

AGLC: Collins v The Queen [2014] NZCA 342
Case: [2014] NZCA 342
Decision Date: 23 July 2014 at 12.30 pm

CaseChat Overview and Summary

Nigel John Collins was convicted of theft following a trial before a Judge alone in the Auckland District Court. The charges related to the dishonest taking of cattle from properties adjacent to Collins' farm. Collins appeals against his convictions and sentences on several grounds, including the alleged recantation of evidence by a witness, Nino Nish. Collins seeks to introduce fresh evidence from Nish, a private investigator, and his trial counsel to support his case. The appeal court considered the credibility, freshness, and admissibility of the proposed evidence. The court found that Nish's proposed evidence was not credible, as it was inconsistent with his previous statements and not believable by a reasonable decision-maker. The court also found that the evidence was not fresh, as it could have been obtained with reasonable diligence during the trial. Furthermore, the court concluded that there was no real risk of a miscarriage of justice resulting from the proposed evidence. Collins' appeal against conviction was dismissed. However, the appeal court allowed Collins' appeal against the reparation order, finding that there was no causal link between Collins' offending and the costs incurred by the victim in removing an encroachment on Collins' land. The order for Collins to pay $4,000 in reparation to the victim was quashed.

Orders