Marsh v The Queen - [2010] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND
CA377/2009
CA384/2009
[2010] NZCA 130
BETWEENKEITH RICHARD MARSH AND JAMES JOSEPH KAPA

Appellants

ANDTHE QUEEN

Respondent

Hearing:10 March 2010

Court:Ellen France, Miller and Allan JJ
Counsel:K R Marsh in person

M A Edgar for Appellant Kapa
K J Raftery for Respondent

Judgment:20 April 2010 at 10.30 am

JUDGMENT OF THE COURT

AMr Kapa’s appeal against conviction is allowed to the extent that his convictions on counts 9–16 inclusive are quashed. His appeal against conviction on count 1 is dismissed.
BMr Marsh’s appeal against c`onviction is allowed to the extent that his convictions on counts 17–24 inclusive are quashed. His appeal against conviction on counts 3 and 5 is dismissed.
CMr Marsh’s appeal against sentence is allowed. The sentence of two years six months imposed upon him in the District Court is quashed. We substitute a sentence of two years imprisonment.

REASONS OF THE COURT
(Given by Allan J)

[1] Together with a third co-accused, Mr Van Wakeren, the appellants stood trial in the Auckland District Court on various counts of burglary and associated counts of money laundering. The trial, before Judge Hubble and a jury, commenced on 23 February 2009 and concluded on 12 March 2009.
[2]The following verdicts were returned:
·Mr Kapa – guilty verdicts on four counts of burglary (counts 1, 3, 5 and 7) and eight counts of money laundering (counts 9–16). Not guilty verdicts on one count of burglary (count 4) and one count of money laundering (count 8). The jury was unable to reach agreement on two counts of burglary (counts 2 and 6).
·Mr Marsh – guilty verdicts on two counts of burglary (counts 3 and 5) and eight counts of money laundering (counts 17–24). Not guilty verdict on one count of burglary (count 4). The jury was unable to agree on one count of burglary (count 6).
·Mr Van Wakeren – guilty verdicts on two counts of burglary (counts 1 and 7) and two counts of money laundering (counts 26–27). Not guilty verdicts on two counts of money laundering (counts 25 and 28). Mr Van Wakeren had previously pleaded guilty to one count of burglary (count 2).

[3]      On 3 June 2009 Judge Hubble sentenced Mr Kapa to three and a half years imprisonment and Mr Marsh to two and a half years imprisonment.[1]
[1]      R v Kapa DC Auckland CRI-2006-004-00948, 3 June 2009.
[4]      Mr Kapa now appeals against his conviction on count 1 (relating to the burglary of the Westgate Tenpin bowling centre), and his convictions on the money laundering counts. Mr Marsh appeals against each of his convictions, and against sentence.
Background
[5]      The indictment contained seven counts of burglary which covered the period between 15 November 2003 and 24 July 2004. They concerned the alleged burglary of ten pin bowling centres and taverns for the purpose of stealing the contents of gaming machines situated within those premises. Each accused also faced a number of money laundering charges arising…

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 Marsh v The Queen

Details

AGLC: Marsh v The Queen [2010] NZCA 130
Case: [2010] NZCA 130
Decision Date: 20 April 2010

CaseChat Overview and Summary

Keith Richard Marsh and James Joseph Kapa appeal against their convictions and sentences arising from a series of burglaries and associated money laundering charges. The Court of Appeal allowed the appeals in part, quashing the appellants' convictions on the money laundering charges and reducing Marsh's sentence. Kapa's appeal against his conviction on count 1 (burglary of the Westgate Tenpin bowling centre) was dismissed. The Crown's case against the appellants was circumstantial, relying on similarities between the burglaries and the subsequent deposit of large sums of cash into the appellants' bank accounts. The Court found that while the evidence was sufficient to support convictions on the burglary charges, there was insufficient evidence to support the money laundering charges, as the Crown failed to prove that the purpose of the bank deposits was to conceal the proceeds of crime. Marsh's sentence was reduced from two and a half years to two years imprisonment, to reflect the Court's decision to quash the money laundering convictions.

Orders