Ford v The King

Case [2024] NZCA 239

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
 CA291/2023
 [2024] NZCA 239
BETWEEN

LAYNE BRENT FORD
Appellant

AND

THE KING
Respondent
CA299/2023

BETWEEN

DYLAN LEWIS WHEELER
Appellant

AND

THE KING
Respondent
CA309/2023

BETWEEN

THOMAS GARY MARSHALL
Appellant

AND

THE KING
Respondent
Hearing:

16 May 2024

Court:

Mallon, Lang and Moore JJ

Counsel:

A J Bailey and R J T George for Mr Ford
K H Cook and T D A Harre for Mr Wheeler
E Huda for Mr Marshall
A J Ewing and S M H McManus for Respondent

Judgment:

18 June 2024 at 3 pm

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Table of contents

Introduction  [1]

The Crown evidence  [6]

Discharging Mr Geels  [18]

Self-defence (and defence of another)  [32]

Section 66(2) directions  [46]

Unreasonable verdict  [66]

Sentence appeal  [70]

Result  [94]

Introduction

  1. The appellants are associated with the Mongols gang.  On 10 July 2021 they travelled together from Christchurch to a property in Pareora, South Canterbury.  They had with them a shotgun.  The Pareora property was the home address of Jacob Geels, a person with associations to the Road Knights gang.  The three appellants were on that property for a brief period, between about 1.38 pm and 1.41 pm.  Shots were discharged with one of those shots hitting Mr Geels in the buttock area. 

  2. The Crown alleged that the appellants had gone to the property to intimidate Mr Geels and, in the course of doing so, one of them had discharged the shotgun.  The Crown accepted it could not prove which of the appellants had fired the shotgun.  The appellants were charged with wounding Mr Geels with intent to cause grievous bodily harm on the basis of common unlawful purpose party liability.[1] 

    [1]Crimes Act 1961, ss 188(1) and 66(2).

  3. The appellants stood trial before Judge O’Driscoll and a jury in the District Court at Timaru.  The Crown called Mr Geels but he was uncooperative and refused to take the oath.  He was discharged without giving evidence.  The Crown case relied on evidence from witnesses who heard the gun shots or saw men on the property, as well as GPS tracking data for one of the appellants, evidence from CCTV stills of the appellants before and after the incident, and evidence obtained from the police scene examination of the Pareora property.  None of the appellants had given police interviews.  They put the Crown to proof and argued that the Crown evidence was unreliable, incomplete and did not establish the charge.

  4. The jury returned guilty verdicts on the charge against each of the appellants.  They were each sentenced to six years and four months’ imprisonment.[2]  They now appeal their convictions and sentences.  The conviction appeals are on the basis that the Judge erred by discharging Mr Geels from giving evidence, declining to direct the jury on self-defence, failing to direct the jury correctly on the requirements for common unlawful purpose party liability, and…

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Ford v The King [2024] NZCA 239
Case
[2024] NZCA 239
Decision Date

CaseChat Overview and Summary

Ford v The King was a case before the court where the parties were Ford and the King. The dispute centred around the interpretation and application of Section 24 of the Sentencing Act 2002, particularly in relation to the acceptance of facts at sentencing. The case involved Ford's sentencing following a conviction for his involvement in an attack where one of the attackers was armed with a firearm, leading to a dispute about whether Ford knew of the firearm before the attack began.

The primary legal issue before the court was whether the sentencing judge could consider certain facts that were not proven at trial but were relevant to the sentencing decision. Specifically, the court had to decide if Ford's claim that the firearm was removed only after the attack began could be considered, given the jury's findings that Ford knew about the firearm before the attack. Another issue was whether the judge could weigh this evidence in determining the sentence despite it not being part of the trial evidence.

The court found that the sentencing judge should not have considered Ford's claim about the timing of the firearm's removal because it contradicted the jury's findings. The court reasoned that Section 24(1)(b) required the judge to accept as proved all facts essential to the finding of guilt, which in this case included the knowledge of the firearm before the attack. The court noted that the claim did not merely contest the amount of a reparation order but rather undermined the jury's essential finding. The court also distinguished this case from previous cases such as Allen and Archer, where the contested facts did not undermine the jury's verdicts.

The final orders of the court were that the sentencing judge's consideration of Ford's claim was improper and that the case should be remitted to a different judge for resentencing. This decision underscored the importance of adhering to the principles set out in Section 24 of the Sentencing Act 2002 and maintaining the integrity of jury findings in sentencing proceedings.

Orders

Orders of the court

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Background

Background to the litigation

Section 24 of the Sentencing Act 2002 provides:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:(e)either party may cross-examine any witness called by the other party.… Section 24(1)(a) of the Sentencing Act permits the court at sentencing to accept as proved any fact that was disclosed by the evidence at trial. Section 24(1)(b) requires the judge to accept as proved all facts essential to a finding of guilt. Section 24(2) provides a process by which evidence may be given of a fact that is relevant to the determination of a sentence. In this case the jury’s verdicts mean it was proven that each appellant knew when they exited the vehicle both that: one of them was armed with a firearm (question 1.7 in the question trail); and that it was a probable consequence that the person with the firearm was intentionally going to cause grievous bodily harm in carrying out their common purpose of intimidating Mr Geels (questions 1.8 and 1.9 in the question trail). This meant it had already been proven that Mr Ford knew when he exited the vehicle of the real risk that Mr Geels would be shot. This is contrary to Mr Ford’s affidavit that the firearm was only removed from the vehicle after the attack on him with the machete started. This case is quite different from both Allen and Archer. In Allen the issue before the jury was whether the defendant intended to evade the payment of GST.[62] Although there was evidence at trial as to the amount of GST that was payable, for the purposes of a reparation order at sentencing further evidence contesting the trial evidence about that was permissible. This was because the further evidence could not have borne on the defendant’s state of mind as to his intention to evade tax which was the issue at trial. The further evidence therefore did not undermine the jury’s verdict.[63] In Archer a guilty plea was entered at the end of the Crown case.[64] Evidence of excessive self-defence or provocation sought to be adduced at sentencing did not undermine the guilty plea.[65][62]R v Allen, above n 61.[63]At [37].[64]Archer v R, above n 61.[65]At [29].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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