McLean v R - [2017] NZHC 3127

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-400 [2017] NZHC 3127

BETWEEN
PAUL MCLEAN

Appellant

AND

THE QUEEN Respondent

Hearing: 12 December 2017

Counsel:

R Samuel for Appellant
Z Johnston for Respondent

Judgment:

14 December 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 December 2017 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Robert Samuel (Auckland) for Appellant
Crown Law (Wellington) for Respondent

MCLEAN v THE QUEEN [2017] NZHC 3127 [14 December 2017]

Introduction

[1] The appellant was convicted of one charge of wilful damage1 of outdoor furniture and a ranch slider door at a Judge-alone trial before Judge Andrée Wiltens.2
He was later sentenced to 12 months’ supervision and 60 hours’ community service.3

He now appeals his conviction on the basis the evidence does not support the factual findings and inferences made by Judge Andrée Wiltens. In summary, he submits there is insufficient evidence that the outdoor furniture was damaged and insufficient evidence that it was he who broke the ranch slider door.

The law

[2] Pursuant to s 232(2) of the Criminal Procedure Act 2011, the appeal must be allowed if the Court is satisfied that:

(a) The Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b) A miscarriage of justice has occurred for any reason.

[3] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:4

(a) Has created a real risk that the outcome of the trial was affected; or

(b) Has resulted in an unfair trial or a trial that was a nullity.

[4] The Supreme Court in Sungsuwan v R defined a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5 While the Supreme Court in Condon v R held that not
every departure from good practice renders a trial unfair.6 The departure must instead

1      Summary Offences Act 1981, s 11(1)(a).
2      Police v McLean [2017] NZDC 25351.
3      Police v McLean [2017] NZDC 25354.
4      Criminal Procedure Act 2011, s 232(4).
5      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
6      Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

be “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.7

[5] An appeal against conviction proceeds by way of rehearing.8 I must carefully consider all the matters that were before Judge Andrée Wiltens but, ultimately, I must reach my own decision. If I conclude Judge Andrée Wiltens was wrong, my decision must prevail.

[6] I must also be mindful of the limitations involved in not seeing or hearing directly from the witnesses.9 I should only interfere with the factual findings of the trial Judge in exceptional circumstances.10

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 McLean v R

Details

AGLC: McLean v R [2017] NZHC 3127
Case: [2017] NZHC 3127
Decision Date: 14 December 2017

CaseChat Overview and Summary

The appellant, Paul McLean, appeals against his conviction for wilful damage of outdoor furniture and a ranch slider door. The appeal was heard in the High Court of New Zealand, Auckland Registry. The appellant argues that the evidence does not support the factual findings and inferences made by the trial judge, particularly the evidence of damage to the outdoor furniture and the breaking of the ranch slider door by the appellant. The legal issue before the court was whether the appeal should be allowed pursuant to s 232(2) of the Criminal Procedure Act 2011. The court had to consider whether the judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. The court found that the evidence was sufficient to establish that the appellant damaged the ranch slider door and the outdoor furniture. The court accepted that there were minor inconsistencies in the evidence of the witnesses, but the overall inferences from the evidence were that the appellant was the one who damaged the property. The court dismissed the appeal, finding that there was no miscarriage of justice and that the trial judge's decision was correct. The final order of the court was that the appeal be dismissed.

Orders