Harvey v The Queen - [2011] NZCA 643

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/2009
[2011] NZCA 643

BETWEEN AARON JAMES HARVEY
Appellant

AND THE QUEEN
Respondent

Hearing: 8 November 2011

Court: Ellen France, Miller and Asher JJ

Counsel: J H M Eaton for Appellant
J C Pike and H J Boyd-Wilson for Respondent

Judgment: 14 December 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

A Order made extending the time for appeal.

B Leave to adduce new evidence is declined and the appeal is dismissed.

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

Para No

Introduction  [1]
The factual background  [2]
The appeal  [10]
Developments in relation to the ballistics evidence[14]
The impact of the trial dynamics  [35]
The effect of the new evidence   [42]
Mr Boyce’s evidence  [43]
The relevant principles  [47]
         Discussion  [49]
Result  [59]

Introduction

Carl MacDonald died in hospital on 15 September 2007 a few hours after having been shot through the stomach by a single .22 calibre bullet. The appellant was convicted after a jury trial of Mr MacDonald’s murder and was sentenced to life imprisonment by the trial Judge, Wild J.[1] He appeals against his conviction. The primary focus on the appeal is on the ballistics evidence at trial and on new ballistics evidence which, the appellant says, if led at trial might have led the jury to reach a different verdict.

The factual background

[1] R v Harvey HC Blenheim CRI-2007-006-1849, 19 December 2008.

The appellant was a member of the Lone Legion Motorcycle Club (the Lone Legion). On 15 September 2007 he, along with other members of the Lone Legion, was involved in a confrontation outside their clubrooms in Blenheim with a number of local residents and their supporters. The appellant and others eventually retreated inside the fortifications around their clubrooms. The confrontation continued with bricks, rocks and abuse exchanged between the two groups. Soon after the appellant and the others had gone inside, Mr MacDonald, one of those outside in the street, was shot and fatally wounded.
The events leading up to Mr MacDonald’s death were captured on the video surveillance system installed in the Lone Legion clubrooms. The video footage showed the appellant presenting a cut-down .22 calibre rifle through the grille on the gate. The appellant then took the rifle down and appeared to be trying to un-jam it. Eventually he is seen to put the rifle back up to the grille and fire it down the street. At the same time, footage from one of the other (of four) cameras appears to show Mr MacDonald coming along the footpath, stopping and doubling over as if hit.
The police arrived at the clubrooms very shortly after the shooting. They conducted an extensive search. The appellant’s rifle, a sawn-off .22 calibre Ruger, was found hidden in a wall cavity. Two live rounds were jammed in, one partly chambered, the other protruding from the ejector. No other firearm was located. Nor was any cartridge not associated with the Ruger found.
The…

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 Harvey v The Queen

Details

AGLC: Harvey v The Queen [2011] NZCA 643
Case: [2011] NZCA 643
Decision Date: 14 December 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Aaron James Harvey, appealed against his conviction for the murder of Carl MacDonald. The central issue was the ballistics evidence presented at the trial and the appellant's claim that new ballistics evidence, if presented, could have led to a different verdict. The Court considered whether the Crown's expert ballistics evidence, as it emerged at trial, had altered the trial dynamics to the extent of causing a miscarriage of justice. It also assessed whether the trial was unfair due to the defence's inability to call expert ballistics evidence to counter the Crown's assertions. The Court found that the focus on the second shooter theory did not prejudice the manslaughter defence and that the new evidence presented by Mr Boyce did not significantly differ from the Crown's evidence, thus not constituting a fresh perspective that could have reasonably led to a not guilty verdict. Consequently, the appeal was dismissed, and leave to adduce new evidence was declined.

Orders