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Kirby v R

Kirby v R

Case [2013] NZCA 451 2 October 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA667/2012
[2013] NZCA 451

BETWEEN	CRAIG RAY KIRBY Appellant
AND	THE QUEEN Respondent

Hearing:	8 July 2013
Court:	Stevens, Heath and Cooper JJ
Counsel:	I M Brookie for Appellant D G Johnstone for Respondent
Judgment:	2 October 2013 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS

Stevens and Cooper JJ [1]

Heath J (dissenting) [81]

STEVENS AND COOPER JJ

(Given by Stevens J)

Table of Contents

Para No

Introduction  [1]
Factual background  [4]
The course of the trial  [17]

Opening addresses [18]
Closing addresses [22]

The question trail and summing up  [25]
The burglary charge  [29]
The arson charge  [32]
Discussion  [36]

The burglary count [38]
The arson count [46]

Intoxication direction [54]

Legal principles [55]
Application to the facts [57]

Application of the proviso [66]

The arson charge [71]
The burglary charge [77]

Result [80]

Introduction

The appellant was tried in July 2012 before Judge de Ridder and a jury in the District Court at Whangarei on one count of burglary, one of arson and one of wilfully attempting to pervert the course of justice. The jury returned verdicts of guilty on all three counts. The appellant was convicted on each. On 25 September 2012, he was sentenced to an effective term of imprisonment of four years.[1]
[1]R v Kirby DC Whangarei CRI-2009-088-5828, 25 September 2012.
Initially, the appellant appealed against both conviction and sentence. A formal abandonment of the sentence appeal has been filed.[2]
[2]The notice of abandonment was handed up in Court.
On the conviction appeal, Mr Brookie submitted that the trial Judge had failed to direct the jury adequately on mental elements of the burglary and arson charges. In addition, Mr Brookie submitted that the Judge should have directed the jury on intoxication.

Factual background

The appellant and Ms Johnson had lived together for some time in a property at 9 Kohe Street, Whangarei. Their relationship ended in September 2009. The separation was acrimonious. The appellant moved out of the property. Ms Johnson continued to live there. Around the time of separation, she met Mr Ogle. A short time later, they formed a relationship and Mr Ogle moved into the Kohe Street property with her.
Not long after that the appellant visited Ms Johnson at that address. He began to talk to Ms Johnson about their friendship, he said, for the purposes of closure. Ms Johnson gave evidence that when she made it clear that she did not wish to have any further contact with him, he became verbally abusive. Mr Ogle was present and called his brother as a precautionary measure because he “had no idea what [the appellant] might do”. The appellant refused to leave until Ms Johnson began to dial the police. As a result of this visit and other communications from the appellant, Ms Johnson and Mr Ogle complained to the police in November. The police told the appellant to stop contacting Ms Johnson and initially…

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 Kirby v R

Details

AGLC: Kirby v R [2013] NZCA 451
Case: [2013] NZCA 451
Decision Date: 2 October 2013 at 11.30 am

CaseChat Overview and Summary

Craig Ray Kirby was convicted of burglary, arson, and attempting to pervert the course of justice. Kirby appealed against his conviction. Kirby argued that the trial judge failed to adequately direct the jury on the mental elements of the burglary and arson charges and that the trial judge should have directed the jury on intoxication. The trial judge did not direct the jury on the elements of the offences, instead relying on a written question trail. The trial judge did not direct the jury on intoxication. The Court found that the failure to direct the jury on the elements of the offences and intoxication did not result in a miscarriage of justice. The Court found that the appeal against conviction on the charge of attempting to pervert the course of justice must be dismissed. The Court found that the appeal against conviction on the burglary and arson charges should be allowed and a retrial ordered.

Orders