Flavell v The Queen - [2016] NZCA 58

IN THE COURT OF APPEAL OF NEW ZEALAND

CA481/2015
[2016] NZCA 58

BETWEEN	PETER JAMES FLAVELL Appellant
AND	THE QUEEN Respondent

Hearing:	2 March 2016
Court:	Randerson, Peters and Collins JJ
Counsel:	M B Meyrick for Appellant Z R Johnston for Respondent
Judgment:	10 March 2016 at 10:30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Collins J)

Background

Mr Flavell was convicted on one charge of kidnapping and one charge of injuring with intent to injure following a jury trial in the Manukau District Court presided over by Judge Andrée Wiltens.[1]
[1]Under ss 209(b) and 189(2) of the Crimes Act 1961.
Mr Flavell filed a notice of appeal against the kidnapping charge and the sentence of three years and eight months imprisonment imposed on both charges.[2] Ultimately, he did not pursue the sentence appeal.
[2]R v Flavell [2015] NZDC 16499.
The events giving rise to Mr Flavell’s convictions occurred after his friend, Ms Nukunuku, arranged to purchase a television through a company called Dream Shop. Dream Shop’s business involves selling household items on a rent‑to‑buy basis. The amounts paid by Dream Shop’s customers are significantly higher than normal retail prices.
Mr Flavell became angry when he learnt of the terms upon which Ms Nukunuku had agreed to purchase the television from Dream Shop.
Mr Flavell arranged for Mr Singh, the sales manager of Dream Shop, to go to an address in Clendon Park on the pretext Mr Flavell would purchase items from Dream Shop.
Mr Singh went to the address where Mr Flavell was waiting. The Crown case was that Mr Flavell became aggressive and locked the door and started punching Mr Singh in the head. Mr Singh was too frightened and intimidated to try to leave. At one point Mr Flavell showed Mr Singh a Nomads Gang patch on the back of the jacket Mr Flavell was wearing. This was designed to intimidate Mr Flavell. Mr Singh told the jury Mr Flavell also told him that to become a member of the Nomads Gang you have to murder someone, and that he, Mr Flavell, had spent 10 years in jail for murder.
Approximately 15 to 30 minutes later Ms Nukunuku and two men entered the room. Ms Nukunuku punched Mr Singh while one of the men, Mr Thomas, held Mr Singh by his shoulders and warned him not to go to the police. Mr Singh was allowed to leave after he gave an assurance he would make Dream Shop refund the money paid by Ms Nukunuku.
Ms Nukunuku and Mr Thomas pleaded guilty to kidnapping and injuring Mr Singh with intent to injure him.
At his trial, Mr Flavell acknowledged striking Mr Singh three times about his face and said he was trying to assist Ms Nukunuku to recover the money she had paid Dream Shop. Mr Flavell acknowledged showing Mr Singh his gang insignia and that he was a member of the Nomads Gang…

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 Flavell v The Queen

Details

AGLC: Flavell v The Queen [2016] NZCA 58
Case: [2016] NZCA 58
Decision Date: 10 March 2016 at 10:30 am

CaseChat Overview and Summary

In the case of Flavell v The Queen, the central dispute concerned the admissibility of prior convictions of co-accused individuals as evidence against the appellant, Mr Flavell, in the context of his alleged involvement in the kidnapping of Mr Singh. The High Court of Australia was tasked with reviewing the trial Judge’s decision to admit such evidence under section 49 of the Evidence Act 2006. The primary legal issue was whether the trial Judge erred in permitting the jury to consider the prior convictions of Mr Flavell's co-accused, Ms Nukunuku and Mr Thomas, as conclusive proof of their respective offences, and whether this potentially prejudiced the jury against Mr Flavell by leading them to infer his guilt by association.

The Court examined the trial Judge's handling of the evidence, considering whether the Judge adequately instructed the jury to isolate the evidence concerning Mr Flavell's involvement from the convictions of his co-accused. The Court noted that while the Crown's counsel did caution the jury against presuming Mr Flavell's guilt by association, and defence counsel emphasised the need for the jury to focus on Mr Flavell's role independently, the trial Judge's summing up could have been more explicit in directing the jury to separate the evidence. Nonetheless, the Court concluded that the trial Judge's overall instructions were sufficient to guide the jury in making an independent assessment of Mr Flavell's culpability.

Ultimately, the Court found no substantial error in the trial Judge’s handling of the evidence. The High Court determined that the trial Judge's directions, though not perfectly articulated, sufficiently safeguarded against the risk of prejudice from the co-accused’s convictions. Consequently, the Court upheld the conviction against Mr Flavell. The Court emphasised that while the trial Judge's instructions could have been clearer, the jury was adequately cautioned against drawing improper inferences from the prior convictions, thus ensuring the trial's fairness.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The trial Judge permitted the introduction of the evidence about Ms Nukunuku’s and Mr Thomas’s convictions pursuant to s 49 of the Evidence Act 2006. The relevant parts of that section provide:49 Conviction as evidence in criminal proceedings(1)Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.…(3)A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered. Mr Flavell’s counsel opposed the Crown’s application to adduce the evidence of Ms Nukunuku’s and Mr Thomas’s convictions. However, the trial Judge accepted the Crown’s submission that the evidence in question was relevant to establishing whether or not Mr Singh had in fact been kidnapped. Having allowed the jury to be told of the conviction of Mr Flavell’s co‑accused, it was incumbent upon the trial Judge to ensure the jury knew they had to focus upon the charge against Mr Flavell and not place undue weight on the convictions of Ms Nukunuku and Mr Thomas. In his closing address, counsel for the Crown said:… Of course, you shouldn’t reason that just because they were convicted of those offences it means that Mr Flavell is automatically guilty because he was associating with them earlier at the time. You still need to consider Mr Flavell’s role independently of the fact of those convictions and to just reason to that conclusion would be quite wrong. But what the Crown says is is that you can take it from those convictions as conclusive proof that Mr Singh was detained in the room by those two people … Defence counsel also pointed out that the guilty pleas by Ms Nukunuku and Mr Thomas were from their “perspective” and that the jury needed to focus on Mr Flavell’s role in the events in question. In summing up, the trial Judge said:[22]You know from the evidence that both Ms Nukunuku and Mr Thomas have been convicted of these offences. What that means is that that is absolute proof that they committed the offences. What you are now looking at is to see whether Mr Flavell also committed those offences, so you can take those convictions into account insofar as they apply against Ms Nukunuku and Mr Thomas. The trial Judge explained to the jury it needed to be sure Mr Flavell detained Mr Singh in the bedroom, that the detention was intentional, that the detention was unlawful, that Mr Singh did not consent to being detained, that Mr Flavell knew Mr Singh did not consent to being detained, and that Mr Flavell intended to confine Mr Singh. While it would have been desirable for the trial Judge to have given a more explicit direction similar to the statement made by counsel for the Crown, we are satisfied the jury were adequately instructed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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