Table of Contents	Para No
Introduction	[1]
Background facts	[4]
The conviction appeal
First ground – was the trial unfair?	[10]
Facts relevant to the first ground of appeal	[12]
Disposition of first ground of appeal	[15]
What are the desirable characteristics of the modern jury?	[18]
The Juries Act 1981	[20]
Brief history of jury composition in New Zealand and the setting of jury districts	[23]
The Law Commission’s review of jury district boundaries	[29]
The meaning of the expression “trial by one’s peers”	[33]
Representativeness – the overseas authorities	[42]
Discussion of the representativeness issue	[61]
Second ground – the identification issue	[74]
Sentence appeal	[90]

Introduction

Following a jury trial in the High Court at Wellington before Mallon J, the appellant was convicted of three counts of importing methamphetamine. He was sentenced on 30 October 2009 to nine years imprisonment with a minimum term of four and a half years.[1] He now appeals against both conviction and sentence.
[1] Ellis v R HC Wellington CRI-2007-085-6245, 30 October 2009.
The appeal against conviction is advanced on two principal grounds:
(a)The trial was unfair because it was conducted contrary to certain Imperial statutes and s 25 of the New Zealand Bill of Rights Act 1990 in that the appellant was tried in the High Court in Wellington by a jury unrepresentative of the population and by a jury not of his peers.
(b)The verdicts were unreasonable or cannot be supported by the evidence in that there was insufficient evidence to identify the appellant as the person seen by an accomplice in the Woolworths carpark at Tawa.
In respect of the appeal against sentence, it was submitted that a lower starting point should have been adopted to more fairly reflect the appellant’s lesser culpability than others involved in the importation.

Background facts

The appellant was one of a number of persons convicted as part of a common enterprise orchestrated from within Rimutaka Prison to import methamphetamine from Thailand. The Crown case was that the drug was concealed within cosmetic containers and posted to a variety of addresses in New Zealand. Orders and payments were arranged with persons in Thailand and funds transferred from New Zealand to Thailand to effect the purchases. Over several months in 2007, eleven packages containing approximately 980 grams of methamphetamine were received by various recipients in the Wellington, Auckland and Whanganui regions. The importations were not detected until mid-2007 when New Zealand Customs and the police intercepted a package which was made the subject of a controlled…

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 Ellis v R

Details

AGLC: Ellis v R [2011] NZCA 90
Case: [2011] NZCA 90
Decision Date: 23 March 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Shane Andrew Ellis, the appellant, appealed against his conviction and sentence for three counts of importing methamphetamine. The appeal was dismissed by Glazebrook, Arnold, and Randerson JJ. The appeal against conviction was based on two grounds: (1) the trial was unfair because the jury was unrepresentative of the population and not of the appellant's peers, and (2) the verdicts were unreasonable or could not be supported by the evidence. The appeal against sentence was based on the argument that a lower starting point should have been adopted to more fairly reflect the appellant's lesser culpability than others involved in the importation. The court dismissed the appeal against conviction, finding that the jury system for criminal trials in New Zealand was prescribed by the Juries Act 1981, and there was no suggestion of any departure from the legislation in the selection of the jury for the appellant's trial. The court also dismissed the appeal against sentence, finding that the sentence was well within the range available to the sentencing judge and cannot be described as manifestly excessive.

Orders