Johnson v The Queen - [2021] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA520/2019
[2021] NZCA 171

BETWEEN	PHILLIP DALE JOHNSON Appellant
AND	THE QUEEN Respondent

Hearing:	23 March 2021
Court:	Miller, Brewer and Dunningham JJ
Counsel:	Appellant in person R K Thomson for Respondent
Judgment:	7 May 2021 at 2.00 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce fresh evidence is declined.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Johnson was found guilty by a jury of two charges of male assaults female. On 30 August 2019, he was sentenced by Judge R J Collins to 12 months’ supervision, 100 hours’ community work and to make reparation for emotional harm in the sum of $1,000.[1]
[1]R v Johnson [2019] NZDC 21074.
Mr Johnson, who represents himself, now appeals his conviction and sentence. He appeals his conviction on the basis that justice miscarried because:
(a)His trial counsel failed to follow instructions to call witnesses.
(b)His trial counsel failed to put into evidence a video of the incident recorded by Mr Johnson on his cellphone which would have exonerated him.
(c)Mr Johnson was denied his medication so that when he gave evidence he was unable to do so effectively.
Mr Johnson did not address his appeal against sentence. We will consider whether it was manifestly excessive if we dismiss the appeal against conviction.
Our task on the conviction appeal is to decide whether there has been a miscarriage of justice, which means whether there has been an error, irregularity, or occurrence that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.[2]
[2]Criminal Procedure Act 2011, s 232(4).
Our task on the sentence appeal (if we get to it) is to decide whether there is an error in the sentence such that a different sentence should be imposed.[3]

Background

[3]Criminal Procedure Act 2011, s 250(2).

The nub of Mr Johnson’s appeal against conviction is that what happened at the trial was unfair to him because evidence going to his innocence was not called. We will first set out what happened at the trial and then analyse Mr Johnson’s submissions as to what went wrong.
The first Crown witness was the complainant, Ms Finny. Her evidence-in-chief was:
(a)On 21 September 2018, she was driving her car along Ngunguru Road.
(b)She saw a car being driven erratically. It tailgated her before overtaking her and several other cars.
(c)Shortly afterwards, Ms Finny was driving directly behind the erratically driven vehicle. Ms Finny said the driver of the vehicle took exception to her being behind it and slammed on the brakes “which has sort of created a bit of a disagreement between the two of us”. Ms Finny said she reacted by “sort of giv[ing] him the fingers out the window and go[ing], ‘What are you doing?’”
(d)Ms Finny went on to describe escalating…

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 171
Case: [2021] NZCA 171
Decision Date: 7 May 2021 at 2.00 pm

CaseChat Overview and Summary

Phillip Dale Johnson has appealed against his conviction and sentence for two charges of assault against a female. The appeal against conviction was dismissed by the Court of Appeal of New Zealand, and the appeal against sentence was also dismissed. The Court found that Mr Johnson received a fair trial and that there was no miscarriage of justice. The Court further determined that the sentence imposed by the trial judge was not manifestly excessive.

The appeal against conviction was based on the grounds that Mr Johnson's trial counsel failed to call witnesses, failed to present a video recording of the incident, and did not provide his medication, which affected his ability to give evidence effectively. The Court of Appeal found that Mr Johnson did not instruct his counsel to call witnesses, and the video recording would not have exonerated him. The Court also found that Mr Johnson's medication issue did not render his trial unfair.

In the appeal against sentence, the Court found that the sentence imposed by the trial judge was not manifestly excessive, given Mr Johnson's history of violence, poor temper control, and lack of remorse. The sentence consisted of 12 months' supervision, 100 hours of community work, and an order to make reparation of $1,000 for emotional harm to the victim.

Orders