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Hunter v R

Hunter v R

Case [2021] NZCA 75 22 March 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA770/2018
CA26/2019
[2021] NZCA 75

BETWEEN	SHANE ARRON HUNTER First Appellant LEIGH JOHN HUNTER Second Appellant
AND	THE QUEEN Respondent

Hearing:	11 and 12 November 2020
Court:	Kós P, Thomas and Gendall JJ
Counsel:	J W Mackey for First Appellant R M Mansfield and H R Smith for Second Appellant E J Hoskin for Respondent
Judgment:	22 March 2021 at 9 am

JUDGMENT OF THE COURT

A        The applications for extension of time are granted.
B        The application to adduce fresh evidence on appeal is declined.
C        The appeals against conviction are dismissed.

DMr Leigh Hunter is to appear before the District Court at Auckland on Wednesday 24 March 2021 at 11am to determine resumption of his original sentence.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

The Hunter brothers were builders. They cohabited a house in Kohimarama. Police executed a search warrant at the house on 24 May 2016. The house was full of building construction tools. The Hunters claimed the tools were theirs (or had been left at the house by other persons). Taking a contrary view, the police contacted persons who had made complaints about tools that had been stolen in the Auckland area. They also placed an advertisement on a builders internet site. They also telephoned a cellphone number found on one of the tools. That call was answered by a Mr Benjamin Hurdley. He said the tool was indeed his, and had been stolen from his vehicle in January 2016. Other persons also came forward and claimed tools as being theirs, having been stolen between 2014 and 2016.
Both brothers were charged with receiving stolen goods. They stood trial before Judge Ryan and a jury in the District Court at Auckland. Mr Leigh Hunter was convicted of five charges and sentenced to 11 months’ home detention. Mr Shane Hunter was convicted of nine charges and sentenced to 22 and a half months’ imprisonment.[1]
[1]He was given leave to apply for home detention. See R v Hunter [2018] NZDC 22664 [Sentencing notes] at [128].
Both appeal conviction.[2] Mr Leigh Hunter attacks the drafting of the charges and the conduct of his trial counsel, alleging instructions were not followed and witnesses were not called. He seeks to adduce what is said to be fresh evidence, aimed at showing his original ownership of the contested tools. Both appellants also argue the verdicts were unreasonable, and the police investigation and subsequent non‑retention of exhibits was flawed in a manner giving rise to a miscarriage of justice.
[2]Appeals against sentence were abandoned by each appellant.
Mr Shane Hunter’s appeal was filed 13 days out of time. Mr Leigh Hunter’s appeal was filed 35 days out of time. The delays are not significant and have caused no prejudice. We grant the required extensions of time.

Evidence on appeal

The evidence on appeal falls into three categories.

Trial counsel error evidence

First, there is the evidence of…

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 Hunter v R

Details

AGLC: Hunter v R [2021] NZCA 75
Case: [2021] NZCA 75
Decision Date: 22 March 2021 at 9 am

CaseChat Overview and Summary

Shane Arron Hunter and Leigh John Hunter were builders who cohabited a house in Kohimarama. Police executed a search warrant at the house on 24 May 2016, finding building construction tools. The Hunters claimed the tools were theirs or had been left at the house by other persons. The police contacted persons who had made complaints about stolen tools and placed an advertisement on a builders' website. Several persons came forward and claimed the tools as theirs, having been stolen between 2014 and 2016. Both brothers were charged with receiving stolen goods and stood trial before Judge Ryan and a jury in the District Court at Auckland. Mr Leigh Hunter was convicted of five charges and sentenced to 11 months' home detention. Mr Shane Hunter was convicted of nine charges and sentenced to 22 and a half months' imprisonment. Both appeal conviction.

The main legal issues the court had to decide were whether the charges were properly drafted under s 17(1) of the Criminal Procedure Act 2011, whether the verdicts were unreasonable, whether the police investigation and subsequent non-retention of exhibits was flawed in a manner giving rise to a miscarriage of justice, and whether the trial counsel had provided inadequate representation.

The court rejected the argument that the charges were improperly drafted as they related to a single offence. It found that the charges were properly drafted as the items were allegedly stolen in a single transaction from the same location. The court also found that there was no realistic prospect of a miscarriage of justice due to inconsistent reasoning by the jury. Regarding trial counsel, the court rejected the complaints that counsel failed to call witnesses or cross-examine complainants adequately. It found that the complainants were robustly challenged and the jury was left in no doubt that the defence position was that the majority of the tools belonged to the Hunters.

The appeals against conviction were dismissed. Mr Leigh Hunter is to appear before the District Court at Auckland on Wednesday 24 March 2021 at 11am to determine resumption of his original sentence.

Orders