Dehaar v The Queen - [2019] NZCA 143

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA364/2018
[2019] NZCA 143

BETWEEN	JASON PHILLIP DEHAAR Appellant
AND	THE QUEEN Respondent

Hearing:	25 February 2019
Court:	Clifford, Mallon and Whata JJ
Counsel:	R A Barnsdale for Appellant E J Hoskin for Respondent
Judgment:	7 May 2019 at 10.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Mr Dehaar was found guilty at trial, alongside two co-defendants, of one charge of kidnapping. During the trial Judge Cocurullo received a note from the jury that two of their number were “uncomfortable” with the way Mr Dehaar’s counsel was looking at them. The Judge refused an application to discharge the jury. Mr Dehaar says his trial miscarried accordingly and appeals on that basis. Mr Dehaar also challenges his sentence. He says it was disproportionately high compared to that of one of his co-offenders.[1]

Background

[1]The memorandum particularising grounds of appeal included a claim that the conviction was against the evidence. This was not pursued in argument. In any event, there was ample evidence to support the Crown’s narrative of events.

The complainant, Mr Singh, offered to help Ms Cole (one of Mr Dehaar’s co‑defendants) get some money by drug dealing. Ms Marenga (the other co‑defendant) was the source of the drugs. Mr Singh gave Ms Marenga the money but did not receive any drugs. A day later, Ms Marenga, Mr Dehaar and one of their associates picked up Mr Singh and drove him to an unknown address. Mr Singh’s phone was taken from him and he was asked to empty his pockets. Ms Marenga then took Mr Singh into the garage and punched him multiple times in the head while Mr Dehaar looked on. They left Mr Singh in the garage overnight.
The next day Mr Singh woke up and was taken to Mr Dehaar’s truck. Mr Dehaar was driving. Ms Marenga was there too with another friend. They stopped at an unknown location. Ms Cole was there. Ms Cole and Ms Marenga then both kicked and punched Mr Singh multiple times while Mr Dehaar was present.
They then took him to Ms Cole’s address and into her garage. Inside the garage, Ms Marenga again punched the victim to the head while Ms Cole and Mr Dehaar were present. He was told that he would go missing if he did not pay them $5,000. Ms Marenga then asked him for his banking details while threatening him with a stick that had a ball and chain attached. Mr Singh was told to call family members and ask them for $5,000.
Mr Dehaar, Ms Marenga and Ms Cole then made Mr Singh go with Mr Dehaar in his truck to go to the homes of family members to ask for money. A stop at a dairy gave Mr Singh the opportunity to escape, which he took.
Mr Dehaar was initially charged with kidnapping, blackmail and…

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 Dehaar v The Queen

Details

AGLC: Dehaar v The Queen [2019] NZCA 143
Case: [2019] NZCA 143
Decision Date: 7 May 2019 at 10.30 am

CaseChat Overview and Summary

Jason Phillip Dehaar appealed against both his conviction and sentence following a trial in which he was found guilty of one charge of kidnapping alongside two co-defendants. The appeal was dismissed by the Court of Appeal of New Zealand. The main issue on appeal was whether the trial miscarried because the trial judge refused to discharge the jury after two jurors expressed discomfort about the way Mr Dehaar’s counsel was looking at them. The appeal against sentence was also dismissed.

The court found that there was no miscarriage of justice because the trial continued after some of the jury expressed discomfort about the way Mr Weir, Mr Dehaar’s counsel, was looking at them. The trial judge gave the jury a direction that whatever they perceived, it was not intentional. The trial judge also gave the jury the orthodox direction to assess the guilt or innocence of the defendant fairly and impartially on the evidence given in court as part of both his opening address and summing-up. The court found that there was no need for the judge to do more given the obvious irrelevance of counsel’s mannerisms to their task. The court found that it was not highly expedient to discharge the jury even if the juror’s perception of Mr Weir was a “casualty”. The combination of directions given was sufficient to mitigate the risk of unfairly prejudicial reasoning.

The court found that the starting point sentence of two years and seven months for the kidnapping was well within range. In addition, this starting point was not disproportionate to Ms Marenga’s starting point of three years and six months, even accounting for the fact she was also convicted of charges of injuring with intent to injure and blackmail. The appeal against sentence was not pursued in argument before the Court of Appeal.

Orders