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Duncan v R

Duncan v R

Case [2013] NZCA 354 9 August 2013

Criminal Liability

Miscarriage of Justice

Conflict of Interest

Appeal

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA471/2012
[2013] NZCA 354

BETWEEN	CHARLIE JONAN DUNCAN Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2013
Court:	Stevens, Panckhurst and Ronald Young JJ
Counsel:	M J Phelps for Appellant J M Jelas for Respondent
Judgment:	9 August 2013 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against conviction, and sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

The appeal

The appellant and her partner, Terrence Tahuri, were jointly tried and convicted.[1] Mr Tahuri was found guilty of wounding with intent to cause grievous bodily harm as the principal offender. The appellant was charged as an accessory after the fact, the Crown case being that she drove her partner away from the scene of the shooting together with a shotgun which had been used.
[1]R v Duncan [2012] NZHC 1814 [sentencing notes].
Trial counsel represented both defendants. Mr Tahuri’s defence was mistaken identity, that eye witnesses were mistaken in identifying him as the shooter. The appellant’s defence was that she was not an accessory as Mr Tahuri was not the principal offender. However, her appeal against conviction is advanced on the basis that an alternative defence, absence of knowledge that Mr Tahuri had committed the crime, was not advanced at trial.
The appellant also challenged her sentence of five months home detention as manifestly excessive. We note that Mr Tahuri’s appeal against conviction and sentence (nine and a half years imprisonment) was dismissed recently.[2]

The factual background

[2]Tahuri v R [2013] NZCA 254.

As at 13 February 2011 the appellant and Mr Tahuri lived at 139 Aputa Street, Wairoa. Mr Tahuri was a member of, or had close links with, the local Black Power gang. Their next door neighbour at 141 Aputa Street was Moe Grant. At about 7.30 am that morning Ms Grant received a visit from her brother and three of his associates. They came from a Mongrel Mob party at which they had been drinking heavily. One of the associates was the victim, Alan Hubbard.
The Crown case was that Mr Tahuri argued with Ms Grant’s brother, Theodore Ruawai, across the fence. A short time later the appellant left the property in a car, but returned after about 20 minutes. Following her return Mr Tahuri was observed in the driveway carrying a shotgun. He fired two shots in quick succession towards the neighbouring house, number 141. Mr Hubbard sustained a serious injury to his right shoulder. Numerous shot gun pellets were removed from the wound. The doctor who treated Mr Hubbard considered that the wound was consistent with a close range shot gun blast.
The Crown case depended substantially upon the evidence of two eye witnesses who appeared at trial under the protection of anonymity orders. Witness A described hearing an argument involving Mr Tahuri and Mr Ruawai. Sometime later A heard gunfire and saw Mr Tahuri fire a shotgun in the direction of number 141. The witness also observed the…

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 Duncan v R

Details

AGLC: Duncan v R [2013] NZCA 354
Case: [2013] NZCA 354
Decision Date: 9 August 2013 at 3.00 pm

CaseChat Overview and Summary

The case of Duncan v R involved an appeal against the conviction and sentence of Charlie Jonan Duncan by the Court of Appeal of New Zealand. Duncan and her partner, Terrence Tahuri, were jointly tried and convicted. Tahuri was found guilty of wounding with intent to cause grievous bodily harm, while Duncan was charged as an accessory after the fact, accused of driving her partner away from the scene of the shooting with a shotgun that had been used. Duncan's appeal against her conviction was based on the claim that an alternative defence, absence of knowledge that Tahuri had committed the crime, was not advanced at trial. She also challenged her sentence of five months home detention as manifestly excessive.

The court examined the instructions provided to counsel in the build-up to the trial and whether it was a realistic option to run the primary defence on behalf of both defendants and an alternative defence on behalf of Duncan. The court found that trial counsel did not obtain the prior informed consent of Duncan before representing both her and Tahuri at trial, as required by the Lawyers and Conveyancers Act. However, the court concluded that there was no real risk of a conflict of interest inhibiting counsel in the discharge of her duties on behalf of Duncan. The court also determined that in the particular circumstances of this case, the alternative defence could not have been advanced even if Duncan had been separately represented, and therefore there was no basis for concern as to the safety of the verdict. The appeal against conviction was dismissed.

Regarding the sentence appeal, the court found that the trial judge's approach was appropriate, taking into account the appellant's youth, immaturity, and previous good character. The court also considered the commutation of the 12-month starting point sentence to five months home detention as appropriate, given the seriousness of the crime and the prompt and effective assistance provided by Duncan. The appeal against sentence was also dismissed.

Final Orders:
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.

Orders