| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA765/2018 [2021] NZCA 233 |
| BETWEEN | PAUL JOHNSON |
| AND | THE QUEEN |
| Hearing: | 13 May 2021 |
Court: | Miller, Venning and Peters JJ |
Counsel: | JEL Carruthers for Appellant |
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…
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- AGLC
- Johnson v The Queen [2021] NZCA 233
- Case
- [2021] NZCA 233
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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