Lamb v The Queen - [2018] NZCA 515

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA36/2018
[2018] NZCA 515

BETWEEN	TREVOR PATRICK LAMB Appellant
AND	THE QUEEN Respondent

Hearing:	6 November 2018 (further materials received 16 November 2018)
Court:	French, Lang and Moore JJ
Counsel:	L C Ord and S W O Campbell for Appellant J E Mildenhall for Respondent
Judgment:	22 November 2018 at 11 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed.
BThe conviction is quashed and substituted with a conviction for conversion under s 226(1)(a) of the Crimes Act 1961 on the following terms:
That Trevor Patrick Lamb on 30 March 2017 dishonestly and without claim of right, but not so as to be guilty of theft, took or used for his own purposes a vehicle.
CThe strike warning is cancelled.
DA sentence of 21 months’ imprisonment is imposed on the conversion conviction, CRN 17031000777. All other sentences imposed on the appellant by the District Court on 27 March 2018 are confirmed. For the avoidance of doubt, the sentence for CRN 17054002137 remains cumulative on the sentence for CRN 17031000777.

___________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Lamb was convicted at trial before Judge Edwards in the District Court of robbery. He now appeals his conviction. His counsel was concerned the appeal was filed out of time and accordingly sought an extension of time which the Crown did not oppose. However, our interpretation of the relevant provision is that the time limits for appealing only start to run on sentencing.[1] This notice of appeal was filed before sentencing which if anything makes it premature. If, contrary to this view, an extension of time were necessary, we willingly grant it.
[1]Criminal Procedure Act 2011, s 231(2).
The facts relied upon by the Crown at trial were that the complainant was parking a vehicle he had borrowed from a friend when Mr Lamb jumped into the car, punched him and demanded to be driven out of town. The complainant and Mr Lamb knew each other. The complainant drove a short distance but then stopped and, fearing further violence from Mr Lamb, got out of the car and ran off. Mr Lamb then proceeded to drive away in the car which was located later that night.
Mr Lamb did not dispute punching the complainant nor did he dispute driving the car away. However, he said he thought that in running off and leaving the keys in the car, the complainant was giving him permission to drive the car out of town.

Arguments on appeal

Theft is an essential ingredient of the crime of robbery.[2] That means that before the jury could convict Mr Lamb of robbery, it had to be sure not only that he dishonestly and without claim of right took the car but also that he intended to permanently deprive the owner of it.[3]
[2]Crimes Act 1961, s 234.
[3]Section 219(1)(a).
On appeal, counsel for the appellant, Ms Ord, argued that a…

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 Lamb v The Queen

Details

AGLC: Lamb v The Queen [2018] NZCA 515
Case: [2018] NZCA 515
Decision Date: 22 November 2018 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Trevor Patrick Lamb v The Queen was heard on appeal against conviction. Lamb had been convicted of robbery at the District Court, but he now appeals his conviction. The central issue in the appeal is whether the evidence at trial was sufficient to support a conviction for robbery, particularly in relation to the intent to permanently deprive the owner of the vehicle. Lamb's counsel argued that the trial judge misdirected the jury on the issue of intent, leading to a miscarriage of justice.

The court found that the evidence presented by the Crown at trial was insufficient to support a conviction for robbery. The Crown's evidence that Lamb took the car without permission and drove away did not exclude the possibility that Lamb only intended to borrow the vehicle temporarily. The court held that where two inferences are equally available, the jury must not choose one in preference to the other. As such, the court concluded that there was not enough evidence to support the conviction for robbery.

In light of this finding, the court substituted the conviction for robbery with a conviction for conversion under section 226(1)(a) of the Crimes Act 1961. The court imposed a sentence of 21 months' imprisonment for the conversion conviction, while confirming all other sentences imposed by the District Court. The total end sentence is reduced by six months from three years' imprisonment to two years and six months' imprisonment.

The appeal against conviction is allowed, and the conviction is quashed and substituted with a conviction for conversion. A sentence of 21 months' imprisonment is imposed on the conversion conviction, and all other sentences imposed by the District Court are confirmed.

Orders