Erikson v Police - [2013] NZHC 220

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000182

CRI-2012-404-000263 [2013] NZHC 220

MICHAEL ERIKSON AND LEGEND TEKOERU ROSS
Appellants
v
NEW ZEALAND POLICE
Respondent

Hearing: 4 February 2013

Counsel: S A Rees for Appellants
A J Pollett for Respondent

Judgment: 15 February 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 15 February 2013 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
S A Rees, PO Box 6132, Wellesley Street, Auckland 1141. Email: s.magnussen@clear.net.nz
Crown Solicitor, DX CP 24063, Auckland 1140. Email: anna.pollett@meredithconnell.co.nz

ERIKSON AND ROSS V NZ POLICE HC AK CRI 2012-404-000182 [15 February 2013]

Introduction

[1] Michael Erikson and Legend Ross have been convicted on a number of charges of unlawfully taking and interfering with motor vehicles, theft and burglary. They appeal against their convictions and sentence.

[2] The appeals against conviction are allowed. Accordingly, it is not necessary to deal with the appeals against sentence of Messrs Erikson and Ross. The co- accused, Mr Wood, had appealed his sentence only. That sentence appeal has been adjourned.1

The alleged offending

[3] Mr Erikson faced 18 charges, of which 15 related to 23 August 2012 and three to 31 August 2012. He pleaded guilty to two of the charges relating to
23 August 2012. The trial was before Judge Treston as a judge alone. In a reserved decision, Mr Erikson was found guilty on the remaining 16 charges.

[4] Mr Ross faced 15 charges alleged to have taken place on 23 August 2012. He had pleaded guilty to one charge. He was found guilty by Judge Treston on the remaining 14 charges in the same decision.

[5] A fourth defendant, Joshua Sprague, pleaded guilty to a number of related offences independently and was sentenced separately by a different Judge.

[6] Messrs Erikson and Ross were found guilty on all of the counts they defended.

[7] The facts of the particular alleged offences are complex and do not need to be exactly summarised. In general terms, it was the Crown’s case that all four of the accused acted together on certain unlawful takings, thefts and burglaries on the night
and early morning of 23 and 24 August 2012 with some further offending on

1 Erikson v NZ Police HC Auckland CRI-2012-404-182, 4 February 2013.

31 August 2012. It was alleged that they were involved in a spree of dishonest conduct, as well as breaking into or attempting to break into premises and cars.

[8] Thus, there are a number of charges for attempting or actually taking a number of motor vehicles, charges relating to the attempted burglary or actual burglary of various premises, of stealing registration plates and theft of property when cars were broken into, and interfering with a number of cars when the quarter lights were smashed. Perhaps the most serious of the offences was when a stolen motor vehicle was rammed into the windows of a Dick Smith Electronics shop.

The issue on appeal

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 Erikson v Police

Details

AGLC: Erikson v Police [2013] NZHC 220
Case: [2013] NZHC 220
Decision Date: 15 February 2013

CaseChat Overview and Summary

Michael Erikson and Legend Ross appealed against their convictions on multiple charges of unlawfully taking and interfering with motor vehicles, theft, and burglary. The respondents argued that the trial judge erred by considering the existence of a joint criminal enterprise when determining guilt, rather than evaluating the charges individually. The High Court found that the trial judge had indeed erred by conflating the admissibility of evidence under s 12A of the Evidence Act 2006 with the requirement to prove guilt beyond reasonable doubt. The court held that the trial judge should have assessed each charge against each accused individually, rather than relying on the notion of a joint enterprise to determine guilt. As a result, the appeals against conviction were allowed, and the convictions were set aside. A new trial was ordered.

Orders