Hearing:	1 September 2016
Court:	French, Miller and Asher JJ
Counsel:	A Stevens for Appellant Cummings D J More for Appellant R W Geary-Smart J M Ablett-Kerr QC for Appellant J C Geary-Smart L C Preston and A R McRae for Respondent
Judgment:	20 October 2016 at 10.00 am

JUDGMENT OF THE COURT

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A The application for leave to adduce fresh evidence is declined.

B The conviction appeals are dismissed.

C The sentence appeals are dismissed.

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REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No

Introduction  [1]
The facts  [8]
Application for leave to adduce fresh evidence  [17]

The proposed affidavit  [17]
The issue  [18]
Our decision  [21]

Admission of the propensity evidence  [25]
Failure to direct as to the appellants’ statements  [36]
Inadequate party directions  [38]
Other criticisms of the summing-up  [44]
Unreasonable verdict — Mr Ryan Geary-Smart  [51]
Unreasonable verdict — Mr Jacob Geary-Smart  [58]
The sentence appeals  [62]

The Judge’s approach  [62]
The sentence of Messrs Cummings and Ryan Geary-Smart               [68]
Our assessment  [76]
The sentence of Mr Jacob Geary-Smart  [91]
Conclusion on sentence  [103]
Result[104]

Introduction

On the night of 10 September 2013 Justin McFarlane was sleeping in the isolated farmhouse he occupied 20 minutes out of Oamaru. He was a farm worker, and due to start the morning milking at 4.30 am. The three appellants, Robert Cummings, Jacob Geary-Smart and Ryan Geary-Smart, together with an associate, Steven Boskell, decided to visit him. He was known to some of them. They went out in one car, driven by Ryan Geary‑Smart’s partner, Ms McCormack.
It is common ground that all four of the men at various stages entered Mr McFarlane’s home at about 2 am. After their visit Mr McFarlane was dead. He was found face down in the living room, his head wrapped in a sheet. He had suffered 11 diverse blunt force contacts to the head. It appeared he had been stomped on, punched and kicked, tied with electrical cords, and hit with a heavy heater. The pathologist considered that it was the cumulative effect of the head injuries that led to his death. The pathologist noted at least 20 other injuries to his body including three facial fractures, scrotal bruising and a full-thickness laceration to his elbow.
The three appellants and Mr Boskell were charged with the murder of Mr McFarlane. A jury trial, presided over by Gendall J, proceeded over nine weeks in the High Court at Dunedin. The Crown case was that each of the four men was a principal or a party to murder under s 168 of the Crimes Act 1961, or alternatively under s 167(b) of that Act. Of the four male defendants, only one, Mr Boskell, gave evidence. Each 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 Cummings v R

Details

AGLC: Cummings v The Queen [2016] NZCA 509
Case: [2016] NZCA 509
Decision Date: 20 October 2016

CaseChat Overview and Summary

In Cummings v R, the New Zealand Court of Appeal dismissed the appeal of three defendants convicted of the murder of Justin McFarlane. The defendants were Robert Cummings, Ryan Geary-Smart, and Jacob Geary-Smart. The Court rejected the appeal on conviction and sentence grounds, affirming the trial judge's decisions. The defendants were found to be guilty of murder as principals or parties under the Crimes Act 1961. The appeal against the admission of propensity evidence, the trial judge's directions to the jury, and the reasonableness of the verdicts were all dismissed. The Court also upheld the sentences imposed, finding them to be within the appropriate range and not manifestly unjust. The Court of Appeal concluded that the end sentences imposed on the appellants were within the range and were not manifestly unjust.

Orders