Leef v The Queen - [2017] NZCA 62

IN THE COURT OF APPEAL OF NEW ZEALAND

CA511/2015
[2017] NZCA 62

BETWEEN	SLADE MITCHUM LEEF Appellant
AND	THE QUEEN Respondent

CA579/2015
BETWEEN	JOSEPH HURU TURNER Appellant
AND	THE QUEEN Respondent

Hearing:	14 February 2017
Court:	Wild, Simon France and Duffy JJ
Counsel:	M W Ryan for Appellant Leef K H Maxwell for Appellant Turner K S Grau for Respondent
Judgment:	17 March 2017 at 2 pm

JUDGMENT OF THE COURT

AMr Turner’s application to adduce fresh evidence is declined.
BMr Turner’s appeal against conviction on the charge of possession of an offensive weapon is allowed. The conviction is quashed. No retrial is ordered.
CMr Turner’s appeal against conviction for aggravated robbery and possession of methamphetamine for supply is dismissed.
DMr Leef’s appeal against sentence is dismissed.

_____________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Messrs Turner and Leef were convicted following a jury trial of aggravated robbery and possessing methamphetamine for supply. Mr Turner was also convicted of possession of an offensive weapon (knuckledusters). Messrs Turner and Leef both pleaded guilty at the start of trial to a charge of possession of methamphetamine. At the same time Mr Leef pleaded guilty to further charges of possessing a methamphetamine pipe, dangerous driving and failing to stop.
Mr Turner appeals the three jury verdict convictions on the basis of errors allegedly made in the summing-up. Mr Turner also applies for leave to adduce fresh evidence and for the appeal to be allowed on the basis of that evidence.
Mr Leef appeals his sentence (nine years and six months’ imprisonment).[1] He formally abandoned his appeal against conviction pursuant to r 35 of the Court of Appeal (Criminal) Rules 2001.

Facts

[1]R v Leef [2015] NZDC 18693.

In May 2014 the occupants of a house were disturbed at night. One of the occupants was punched as he opened the front door. Several men forced their way in. Another occupant was hit on the head with a torch. The blow left a distinctive mark that reflected the shape of the torch. The house was subjected to a thorough search by the intruders while the principal occupant was further assaulted. Other occupants of the house were able to flee.
There were a number of vehicles at the scene, many of them apparently unable to be driven. The principal occupant handed over some car keys and the intruders left in a Subaru vehicle. As it happens, the police, by then alerted to the incident by one of the occupants who had escaped, were nearby. The Subaru vehicle was pursued and a chase ensued until the Subaru vehicle broke down. On the floor in front of the passenger seat there was a black bag containing the torch used to assault one of the occupants, and a significant quantity of methamphetamine. Also in the bag were a balaclava and handcuffs. On the back seat of the car was an Xbox and computer belonging to the principal occupant. The evidence of the occupants was that…

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 Leef v The Queen

Details

AGLC: Leef v The Queen [2017] NZCA 62
Case: [2017] NZCA 62
Decision Date: 17 March 2017

CaseChat Overview and Summary

Slade Mitchum Leef and Joseph Huru Turner were convicted of various charges following a jury trial, including aggravated robbery and possession of methamphetamine for supply. Turner was also convicted of possession of an offensive weapon. Turner appeals his convictions on the basis of alleged errors in the summing-up and seeks leave to adduce fresh evidence. Leef appeals his sentence of nine years and six months’ imprisonment, arguing that it is excessive. Turner’s appeal against his convictions for aggravated robbery and possession of methamphetamine for supply was dismissed, as the court found no relevant errors in the summing-up. However, Turner’s appeal against his conviction for possession of an offensive weapon was allowed, as the summing-up failed to properly explain the defence of not intending to use the weapon to commit an offence involving bodily injury or the threat or fear of violence. Turner’s application for leave to adduce fresh evidence was declined, as the evidence lacked cogency. Leef’s appeal against his sentence was dismissed, as the court found that the eight-year starting point for the aggravated robbery was appropriate and the sentence was not excessive.

The final orders of the court are that Turner’s appeal against his convictions for aggravated robbery and possession of methamphetamine for supply is dismissed. Turner’s appeal against his conviction for possession of an offensive weapon is allowed, and the conviction is quashed, but no retrial is ordered. Turner’s application for leave to adduce fresh evidence is declined. Leef’s appeal against his sentence is dismissed.

Orders