Johnson v The Queen - [2021] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA765/2018
[2021] NZCA 233

BETWEEN	PAUL JOHNSON Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2021
Court:	Miller, Venning and Peters JJ
Counsel:	JEL Carruthers for Appellant E J Hoskin for Respondent
Judgment:	3 June 2021 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Paul Johnson was found guilty on a charge of wounding with intent to cause grievous bodily harm and was sentenced to seven years’ imprisonment.[1] He has appealed against his conviction and sentence.
[1]R v Johnson [2018] NZDC 24332. Mr Johnson was found guilty at his second trial on the charge. The jury were unable to agree at the first trial.
The issue in the case was identification. The Crown relied on the victim’s recognition of Mr Johnson, which was confirmed by the victim’s identification of him in a photo montage. Mr Johnson’s palm print was also present on the car the victim was in when attacked.
Mr Johnson says there was a miscarriage of justice because:
(a)trial counsel, Mr Leader, erred in not adducing evidence that Mr Johnson had prominent tattoos to his neck and face at the time of the offending which the victim did not refer to; and
(b)the victim’s identification of him from the photograph was unreliable as it was an old photograph and did not show the tattoos.

Background

Sometime after 7.00 pm on 7 February 2017 the victim drove his partner’s car from their home towards his father’s address in Hikurangi. He parked the car in Valley Road and began texting on his phone. The driver’s window was down.
The appellant and two others came out of Mr Frank Rota’s driveway. The appellant and one of the other two (the co-accused) came over to the victim. The appellant and his co-accused became aggressive, yelled at the victim and asked him what he was doing being parked there.
The appellant then pulled a dark coloured metal weapon that had the shape of a pistol from his shorts. He set about attacking the victim with the weapon and his fists. The co-accused held the door shut to stop the victim leaving. While holding the weapon, the appellant hit the victim about the head a number of times. One of the blows was aimed directly at the victim’s right eye. The victim tried to block the punches to his head and face by putting his arms over his head, but he was continually punched about the head and chest area.
The appellant also raised the weapon and fired it at the victim’s head. Two metal probes were shot from it into the victim’s right arm. The puncture wounds were consistent with wounds caused by a taser.
The attackers then ran off. A passer-by called Police.
As a result of the assault, the victim sustained multiple injuries, including cuts to his forehead, a wound…

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 Johnson v The Queen

Details

AGLC: Johnson v The Queen [2021] NZCA 233
Case: [2021] NZCA 233
Decision Date: 3 June 2021 at 4.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against conviction and sentence by Paul Johnson, who was found guilty of wounding with intent to cause grievous bodily harm and sentenced to seven years' imprisonment. Johnson's appeal centred on two main points: the alleged failure of his trial counsel to present evidence of his prominent facial tattoos, which the victim did not mention, and the alleged unreliability of the victim's identification of Johnson in a photo montage, which did not show the tattoos. The victim had recognised Johnson from previous encounters and had identified him in a photo montage, despite the absence of the tattoos in the photograph. Johnson argued that the lack of reference to the tattoos undermined the reliability of the victim's identification.

The Court of Appeal assessed whether the trial counsel's omission of the tattoo evidence created a real risk that the outcome of the trial was affected. The court held that since the case was a recognition-based identification rather than a description-based one, the omission of the tattoo evidence did not materially affect the victim's ability to recognise Johnson. The court noted that the victim had ample opportunity to observe Johnson's features during the assault and that the facial tattoo was not particularly noticeable from a front-on view. The court also considered the victim's careful approach in identifying Johnson from the photo montage, narrowing down the selection to two photographs before confirming Johnson's identity. Additionally, the presence of Johnson's palm print on the car the victim was in during the attack corroborated the victim's account. The Court of Appeal concluded that there was no reasonable possibility of a different verdict had the tattoo evidence been presented. Consequently, the appeal against both conviction and sentence was dismissed.

Orders