Johnston v R - [2012] NZCA 559

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: EXTANT ORDER SUPPRESSING DETAILS THAT COULD LEAD TO IDENTIFICATION OF THE BANK MANAGER REFERRED TO IN MR ANDERSON'S EVIDENCE OR THE CITY IN WHICH HE LIVES.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA262/2012 [2012] NZCA 559

BETWEEN JUSTIN AMES JOHNSTON Appellant

ANDTHE QUEEN Respondent

Hearing: 31 October 2012

Court: White, Allan and Lang JJ

Counsel: B J Horsley and J C Bonifant for Appellant
C L Mander and F E Cleary for Respondent

Judgment: 6 December 2012 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B A retrial on the charge of attempted sexual violation is ordered.

COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or

JOHNSTON v R COA CA262/2012 [6 December 2012]

other publicly available database until final disposition of retrial.

Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by White J)

Table of Contents

Para No Introduction [1] Background [3] The trial [8] Grounds of appeal [12] Presence on property sufficiently proximate? [14] Submissions for Mr Johnston [23] Crown submissions [24] Discussion [28]

Attempt without intention to carry out sexual violation on the
night in question? [36]
Submissions for Mr Johnston [38] Crown submissions [40] Discussion [42]

Admissibility of Crown propensity evidence from Mr Anderson
and Mr Braddock [61]
Submissions for Mr Johnston [71] Crown submissions [74] Discussion [77] Amendment of the indictment [83] Defence propensity evidence [88] Result [97]

Introduction

[1] Justin Johnston appeals against his conviction for attempted sexual violation following a jury trial in the High Court at Wellington in December 2011. During the trial he pleaded guilty to a second charge, threatening to do grievous bodily harm.

[2] Mr Johnston was sentenced to preventive detention.1 An appeal against sentence has been abandoned.

Background

[3] Both charges related to the evening of 19 July 2010 when Mr Johnston was found unlawfully in the back garden of a private residential property in Upper Hutt. The property comprised a family home located at the end of a long driveway, a separate garage at the front and a separate sleep out at the rear of the property. This was used by the complainant, W, a 16 year old girl, who lived with her family in the home on the property.

[4] On the evening in question, after W had gone out to the sleep out, her father (Mr W), who had gone outside to get some firewood, noticed that the sensor lights by the sleep out were on and then saw…

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 Johnston v R

Details

AGLC: Johnston v R [2012] NZCA 559
Case: [2012] NZCA 559
Decision Date: 6 December 2012

CaseChat Overview and Summary

Justin Johnston appeals against his conviction for attempted sexual violation. The appeal was heard by the Court of Appeal of New Zealand. The appeal was allowed and a retrial was ordered on the charge of attempted sexual violation. An order was also made prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of the retrial. Publication in law report or law digest is permitted.

The appeal was based on a number of grounds. The first was that the Judge erred in finding that as a matter of law, Mr Johnston’s presence on the property was sufficiently proximate to constitute an attempt to sexually violate W. The Court of Appeal rejected this argument. The second ground was that the Judge misdirected the jury that an attempt was proved even if there was no intention to carry out the offending on the night in question. The Court of Appeal upheld this ground of appeal. The third ground was that the Crown propensity evidence from Mr Anderson and Mr Braddock was inadmissible. The Court of Appeal rejected this ground of appeal. The fourth ground was that the Crown’s amendment of the indictment prior to trial to exclude other counts of burglary and possession of instruments for burglary led to a miscarriage of justice. The Court of Appeal rejected this ground of appeal. The fifth ground was that the Judge erred by not allowing the defence to adduce propensity evidence relating to Mr Johnston’s tendency to commit property-related crimes generally. The Court of Appeal rejected this ground of appeal. The sixth ground was that the Crown and the Judge improperly commented on whether the burglary convictions could have had a sexual motive or could have been entries onto property with the intention of committing a crime against a person. The Court of Appeal rejected this ground of appeal.

Orders