Johnston v The Queen - [2016] NZSC 83

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

IN THE SUPREME COURT OF NEW ZEALAND

SC 61/2015
[2016] NZSC 83

BETWEEN	JUSTIN AMES JOHNSTON Appellant
AND	THE QUEEN Respondent

Hearing:	9 February 2016
Court:	Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ
Counsel:	R M Lithgow QC and N Levy for the Appellant A Markham for the Respondent
Judgment:	6 July 2016

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by O’Regan J)

The appellant was convicted following a trial by jury on one count of attempted sexual violation by unlawful sexual connection. He was sentenced to preventive detention. The trial was a re‑trial: he had earlier been convicted but his conviction had been set aside by the Court of Appeal [Johnston (CA 2012)].[1] He appealed against conviction after the re‑trial but his appeal was dismissed by the Court of Appeal [Johnston (CA 2015)].[2]

Issue

[1]Johnston v R [2012] NZCA 559, [2013] 2 NZLR 19 (White, Allan and Lang JJ) [Johnston (CA 2012)].

[2]Johnston v R [2015] NZCA 162 (Wild, Clifford and Dobson JJ) [Johnston (CA 2015)].

The appellant applied for leave to appeal against the Court of Appeal’s decision in Johnston (CA 2015). Leave was granted on one issue only:[3]
The approved question is whether the trial Judge was wrong to conclude that the actions of the applicant on the night of the alleged offending were sufficiently proximate to constitute the actus reus of an attempt.
[3]Johnston v R [2015] NZSC 143.
The granting of leave on that issue was not opposed by the Crown. The appellant sought leave to raise two other issues on appeal but leave was declined on those issues.[4]

Facts

[4]At the hearing of the appeal counsel for the appellant, Mr Lithgow QC, addressed argument to one of the questions on which leave was refused in an apparent hope that the Court would revisit its leave decision and give leave on that point. The Court did not do so and this judgment deals only with the question in respect of which leave was granted.

The events leading to the charge faced by the appellant occurred at a residential property. The property comprised a family home, a separate garage at the front of the property and a separate sleepout at the rear of the property. The home was at the end of a long driveway. A 16 year old girl (whom we will call Ms A), used the sleepout as her bedroom.
On the night in question, 19 July 2010, Ms A went from the family home to the sleepout at about 7 pm. About 30 minutes later, her father (Mr A) went out of the house to get firewood and discovered the appellant crouched on the back lawn in dark clothing, wearing a beanie and gloves and carrying a torch.…

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 The Queen

Details

AGLC: Johnston v The Queen [2016] NZSC 83
Case: [2016] NZSC 83
Decision Date: 6 July 2016

CaseChat Overview and Summary

The appellant, Justin Ames Johnston, appealed against his conviction on one count of attempted sexual violation by unlawful sexual connection. The appellant was sentenced to preventive detention. The Supreme Court was required to determine whether the trial Judge was wrong to conclude that the actions of the appellant on the night of the alleged offending were sufficiently proximate to constitute the actus reus of an attempt. The Court found that the trial Judge was not wrong in his conclusion. The Court held that the appellant's actions on the night of the alleged offending were sufficiently proximate to constitute the actus reus of an attempt. The Court reasoned that the determination as to whether acts have gone beyond mere preparation cannot be decided in the abstract without consideration of the evidence of intent. The Court also held that s 72 of the Crimes Act 1961 permits a defendant’s conduct to be considered in its entirety. The Court further held that practical considerations could affect the decision under s 72(2). The appeal was dismissed.

Orders