Gillbanks v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA652/2014
[2014] NZCA 567

BETWEEN	SAMUEL INGRAM GILLBANKS Appellant
AND	THE QUEEN Respondent

CA612/2014
BETWEEN	BLAKE PAUL CUNNARD Appellant
AND	THE QUEEN Respondent

CA606/2014
BETWEEN	JARED MATTHEW PERRY Appellant
AND	THE QUEEN Respondent

Court:

Harrison, Stevens and French JJ

Counsel:

A J D Bamford for Appellant Gillbanks
G P Barkle for Appellant Cunnard
R B Squire QC for Appellant Perry
C A Brook for Respondent

Judgment:

(On the papers)

27 November 2014 at 10.00 am

JUDGMENT OF THE COURT

AIn the case of each appellant the application for an extension of time to appeal is granted.
BMr Gillbanks’ appeal against conviction is allowed and his conviction for manslaughter is quashed.
CMr Cunnard’s appeal against conviction is allowed and his conviction for murder is quashed.
DMr Perry’s appeal against conviction is allowed and his conviction for manslaughter is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Messrs Gillbanks, Cunnard and Perry (the appellants) were all charged with offences arising out of the death of Mr Troy Minto. They were charged on the basis that they were parties under s 66(2) of the Crimes Act 1961 to the alleged culpable homicide of Mr Minto by Mr Blair McNaughton.
Following trial, Mr McNaughton was convicted of murder and the appellants were convicted of the following offences:
(a)Mr Gillbanks – convicted of manslaughter as a party;
(b)Mr Cunnard – convicted of murder as a party; and
(c)Mr Perry – convicted of manslaughter as a party.
Mr McNaughton appealed his conviction. His appeal was allowed,[1] and at a subsequent retrial held in September 2014 he was acquitted of murder.
[1]McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467.
The appellants then filed appeals against their respective convictions.
The Crown accepts that in light of the acquittal of the alleged primary offender, the appellants’ convictions for manslaughter and murder are not sustainable and should be quashed. It therefore does not oppose the appeals. The Crown also advises that it does not seek an order for a retrial.
We are satisfied that in the circumstances these appeals can be dealt with on the papers without the need for a hearing.[2]
[2]Crimes Act 1961, s 392A.
We are also satisfied that the following orders should be made:
(a)In the case of each appellant the application for an extension of time to appeal is granted.
(b)Mr Gillbanks’ appeal against conviction is allowed and his conviction for manslaughter is quashed.
(c)Mr Cunnard’s appeal against conviction is allowed and his conviction for murder is quashed.
(d)Mr Perry’s appeal against conviction is allowed and his conviction for manslaughter is quashed.
There will be no order for a retrial in respect of any of the appellants.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The appeal in the case of Gillbanks v The Queen and others involved three appellants, Samuel Ingram Gillbanks, Blake Paul Cunnard, and Jared Matthew Perry, who were all charged in relation to the death of Troy Minto. They were found guilty of various offences as parties to the culpable homicide of Mr Minto, allegedly committed by Blair McNaughton. Following a successful appeal by McNaughton, he was acquitted of murder in a retrial, leading to the appellants filing appeals against their convictions. The court was tasked with determining whether the appellants' convictions were sustainable in light of McNaughton's acquittal, and whether a retrial should be ordered.

The central legal issue was whether the appellants' convictions for manslaughter and murder could be sustained given that McNaughton, the alleged primary offender, had been acquitted of murder and there was no longer a conviction upon which the appellants' convictions could be based. The Crown accepted that the appellants' convictions could not stand and did not oppose the appeals or seek a retrial. The court needed to decide whether the appeals should be allowed and if so, what orders should be made regarding the quashing of the convictions and the possibility of a retrial.

The Court of Appeal, composed of Harrison, Stevens, and French JJ, found that the appeals could be decided on the papers without a hearing. Given McNaughton's acquittal, the court determined that the appellants' convictions for manslaughter and murder were no longer sustainable. The Crown's acceptance of the unsustainability of the convictions and their non-opposition to the appeals facilitated the court's decision. The court granted the applications for an extension of time to appeal, allowed the appeals against conviction, and quashed the respective convictions of each appellant. The court decided against ordering a retrial for any of the appellants.

The final orders made by the court were that the applications for an extension of time to appeal were granted, the appeal against conviction was allowed, and the convictions for manslaughter and murder were quashed for each appellant. No order for a retrial was made in respect of any of the appellants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established