Hazlewood v The Queen - [2013] NZCA 406

IN THE COURT OF APPEAL OF NEW ZEALAND

CA815/2011
[2013] NZCA 406

BETWEEN	CHRISTOPHER RONALD HAZLEWOOD Appellant
AND	THE QUEEN Respondent

Hearing:	13 August 2013
Court:	Ellen France, Rodney Hansen and Mallon JJ
Counsel:	M A Stevens for Appellant J E Mildenhall for Respondent
Judgment:	29 August 2013 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Hazlewood appeals against his convictions for burglary and theft, following a District Court jury trial in November 2011. The convictions relate to an incident in the early morning of 16 December 2003. Mr Hazlewood was only charged following information first provided to the police by Mr Turner, an alleged co-offender, on and after 23 June 2008. For his part in the alleged offending, Mr Turner was convicted on 17 September 2009. Mr Turner was the key Crown witness at Mr Hazlewood’s trial.
Mr Hazlewood’s appeal is on four grounds:[1]
(a)the delay in bringing these charges caused unfair prejudice to Mr Hazlewood by seriously impairing his ability to defend the charges;
(b)a dictaphone recording of Mr Turner’s initial allegations made to the police on 23 June 2008 was unavailable and this prejudiced Mr Hazlewood’s defence because the typed record was incomplete;
(c)Mr Turner’s evidence was so unreliable that it was unsafe to allow the charges to go to the jury; and
(d)failure of the trial judge, Judge MacAskill, to give a “tripartite” direction in relation to Mr Hazlewood’s evidence gave rise to a risk of miscarriage of justice.

Background

Alleged circumstances

[1]These grounds expanded upon that filed in the notice of appeal. The respondent did not claim that it had been prejudiced by this. Leave is granted to rely on the expanded grounds.

The convictions relate to an incident when Mr Hazlewood and Mr Turner were both living in Hampden, Otago. The Crown’s case about that incident was as follows. On the night of 15 December 2003 Mr Turner accompanied Mr Hazlewood on a drive from Hampden to Cromwell where Mr Hazlewood intended to pick up some machinery. On the drive to Cromwell they passed a Works site near Kyeburn. On the return trip to Hampden they stopped at the Works site they had earlier noticed. Mr Hazlewood and Mr Turner stole approximately 500 litres of diesel, batteries, an exhaust pipe and a set of keys from the site. They also broke into a caravan on the site and stole two batteries, two fuel containers, engine oil and a chilly bin. The total value of the property taken and the damage caused was estimated to be $2,500.
The theft of these items was reported to the police on 16 December 2003. The police visited the site that day. Photographs were taken and a blood sample was obtained from the broken door of the caravan. No suspects were identified.

Mr Turner speaks to police

Over four years later, on 23 June 2008, Mr Turner spoke to the police at the Palmerston Police…

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.

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Details

Case: [2013] NZCA 406
Decision Date: 29 August 2013 at 3 pm

CaseChat Overview and Summary

The appeal of Christopher Ronald Hazlewood against his convictions for burglary and theft was dismissed by the Court of Appeal of New Zealand. The convictions related to an incident that occurred in December 2003, where Hazlewood and an alleged co-offender, Mr. Turner, were accused of stealing property from a site. Turner was the key witness for the Crown at Hazlewood's trial. Hazlewood appealed on four grounds, including delay in bringing charges, unavailable evidence, reliability of Turner's evidence, and failure to give a "tripartite" direction to the jury. The Court found that the delay did not prejudice Hazlewood's ability to defend the charges, the unavailable evidence would not have assisted the defence, Turner's evidence was not so unreliable as to make the convictions unsafe, and the omission of a "tripartite" direction did not lead to a miscarriage of justice. The appeal was dismissed, and Hazlewood's convictions were upheld.

Orders