Fairburn v R - [2010] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND
CA169/2009
[2010] NZCA 44
BETWEENCYNDI MARCIA FAIRBURN

Appellant

ANDTHE QUEEN

Respondent

Hearing:16 February 2010

Court:Hammond, Panckhurst and Keane JJ
Counsel:S W Hughes QC and P J Jensen for Appellant

T C Brewer for Respondent

Judgment:1 March 2010 at 11 am

JUDGMENT OF THE COURT

A The application to adduce further evidence on the appeal is dismissed.
B The appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Hammond J)
Table of Contents

Para No

Introduction  [1]
The background facts  [4]
A fatal road trip  [14]
The respective cases at trial  [19]
What went to the jury  [21]
The grounds of appeal  [27]
Self-defence: the law  [30]
Self-defence: this case  [40]
Crown closing  [49]
The fresh evidence application  [58]
Result  [60]
Introduction
[1]        The appellant, Ms Fairburn, appeals against a conviction for murder which was entered against her, following trial before Harrison J and a jury.[1]
[1]      R v Fairburn HC New Plymouth CRI-2008-043-000931, 3 March 2009.
[2]        Ms Fairburn pleaded guilty to a count of dangerous driving causing injury arising out of the same incident.
[3]        The critical issue on the appeal is whether the justification of self-defence was properly available to Ms Fairburn, in the circumstances of this case.
The background facts
[4]        Ms Fairburn and the deceased, Mr Maxwell, had been in a relationship. At the time of the homicide they were separated. Ms Fairburn had a daughter, Y, who was aged around two in August 2007.
[5]        On 5 August 2007 Ms Fairburn made a complaint to the police that Mr Maxwell had been alone in a house with Y. The state in which she had found the daughter’s bed and clothing had led her to believe that Mr Maxwell had sexually abused Y. Ms Fairburn was very angry. When she went to the police she took along the bedding and clothing. She also took what she said were black pubic hairs found on the floor of the daughter’s bedroom. She told the police that they had “to get” Mr Maxwell. There was something of an exchange between Ms Fairburn and police officers. A police officer endeavoured to explain to her that real care was required when investigating such allegations, and that suspicion was not enough to justify an arrest then and there.
[6]        After she left the police station Ms Fairburn exchanged text messages with a Mr Burridge that suggested she was trying to obtain a “stun gun”.
[7]        Over that weekend and on Monday 6 August 2007, there was a tangi for one of Mr Maxwell’s relatives at a marae in Inglewood. Mr Maxwell went to that tangi early on the Monday morning.
[8]        That same morning Ms Fairburn sent a text message to a friend, Ms Murphy, relating her belief that Mr Maxwell had abused Y and indicating she had been to the police. She said, “I’m coming down to Inglewood. He be at funeral today. I got something for kiddy fucker.” There were…

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 Fairburn v R

Details

AGLC: Fairburn v R [2010] NZCA 44
Case: [2010] NZCA 44
Decision Date: 1 March 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Ms Cyndi Marcia Fairburn, appealed against her conviction for murder. The critical issue on appeal was whether the justification of self-defence was properly available to Ms Fairburn. The appellant and the deceased, Mr Maxwell, had been in a relationship and were separated at the time of the incident. Ms Fairburn believed that Mr Maxwell had sexually abused her daughter and had gone to the police to report this. After the police did not act on her report, she decided to take matters into her own hands. The court considered whether Ms Fairburn's actions could be justified as self-defence under New Zealand law. The court found that the justification of self-defence was not properly available in this case. The court found that the evidence did not support the claim that Ms Fairburn believed she was under imminent threat of harm at the time of the fatal collision, and that her actions could not be considered a reasonable response to such a threat. The court also found that the proposed fresh evidence, which suggested alternative explanations for the collision, was not admissible as it was not fresh and was not cogent. The appeal was dismissed.

Orders