Hay v R

Case [2015] NZCA 329 27 July 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA384/2014
[2015] NZCA 329

BETWEEN	GRAHAM STEWART HAY Appellant
AND	THE QUEEN Respondent

Hearing:	20 July 2015
Court:	Stevens, Heath and Collins JJ
Counsel:	P J Kaye for Appellant G A Kelly for Respondent
Judgment:	27 July 2015 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction  [1]
Background  [4]
Appeal against conviction  [9]
Defence of compulsion  [14]

Statutory provision for compulsion [14]
The elements of compulsion [15]

Jury directions on compulsion [18]

Analysis [26]

Evidential foundation [33]

Submissions on evidential foundation [36]
Our evaluation [44]

Sentence appeal [55]
Result [63]

Introduction

Mr Hay faced trial in the Auckland District Court on one charge of aggravated burglary and one charge of unlawfully taking a motor vehicle.[1] He had earlier pleaded guilty to one separate count of unlawfully taking a motor vehicle. Following a jury trial on the first two counts, he was sentenced in March 2014 on all three counts to seven years and six months’ imprisonment. He now appeals against the jury’s guilty verdict and against his sentence.
[1]R v Hay DC Auckland CRI-2011-004-21003, 12 March 2014 [sentencing decision].
The conviction appeal is advanced on the basis the defence of compulsion by another was not accurately put to the jury. He contends the convictions are unsafe and should be overturned.
Mr Hay appeals against the sentence imposed as being manifestly excessive when compared with the sentence received by his co-offender, Mr Taylor. He says he only played a secondary role in the offending.

Background

The charges arose out of events occurring one evening in November 2011 when Mr Hay was contacted in the early hours of the morning by Mr Taylor. Mr Hay received a text message (“are you up bro?”) which led to him going with Mr Taylor to the property of the complainants, Mr Waddington and Ms Connelly, in West Auckland, apparently to collect a debt.
The complainants and their three children were asleep at the address. Messrs Hay and Taylor broke in through the back door of the house, Mr Taylor armed with a loaded firearm, Mr Hay armed with a crowbar he had obtained from a shed on the property. Mr Waddington was woken up by the noise and went to investigate. Mr Taylor pointed the firearm at Mr Waddington and he and Mr Hay ushered him back into his bedroom, where Ms Connelly was. Both Mr Waddington and Ms Connelly were threatened. Mr Taylor demanded drugs and money. Mr Waddington told him there were none. After searching rooms in the house, Mr Taylor asked about the vehicles parked at the property.
At that point Mr Taylor swapped weapons with Mr Hay and took Ms Connelly outside to unlock the gate to the property. Mr Hay, having swapped weapons with Mr Taylor and now holding the firearm, kept Mr Waddington in the bedroom.
Ms Connelly…

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 Hay v R

Details

AGLC: Hay v R [2015] NZCA 329
Case: [2015] NZCA 329
Decision Date: 27 July 2015 at 3.00 pm

CaseChat Overview and Summary

The appellant, Mr Hay, appealed against his conviction and sentence for one charge of aggravated burglary and one charge of unlawfully taking a motor vehicle, imposed following a jury trial in the Auckland District Court. The appeal against conviction contended that the defence of compulsion by another was not accurately put to the jury and that the convictions were unsafe and should be overturned. The appeal against the sentence imposed was that it was manifestly excessive when compared with the sentence received by his co-offender, Mr Taylor, because he only played a secondary role in the offending. The Court of Appeal found that the defence of compulsion was not properly available to Mr Hay and should not have been put to the jury because there was no credible narrative to support it. The Court also found that the sentence imposed was appropriate in light of the different roles played by the offenders. The appeal against conviction and sentence was dismissed.

Orders