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McMahon v R

McMahon v R

Case [2009] NZCA 472 13 October 2009

Attempted Obstructing the Course of Justice

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA180/2009
[2009] NZCA 472
BETWEENANGELINE CLARK MCMAHON

Appellant

ANDTHE QUEEN

Respondent

Hearing:13 October 2009
Court:Glazebrook, Potter and Wild JJ
Counsel:G J Thwaite for Appellant

M D Downs for Respondent
Judgment:13 October 2009
Reasons for Judgment: 18 August 2010 at 4.00 pm

JUDGMENT OF THE COURT

AThe appeal is allowed, the conviction is quashed and a verdict of acquittal entered.
BThere is no order for a retrial.
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No

Introduction  [1]
Factual background  [8]
Charges against Brandon  [8]
Police visits to Ms McMahon’s home  [11]
Mc McMahon’s evidence on police visits  [17]
Failure to cross-examine  [23]
Events at the meditation centre  [26]
Other contact with Brandon  [32]
Subsequent events  [33]
Relevant statutory provisions  [36]
Errors in the course of the trial  [39]
Course of conduct  [42]
Actus reus and mens rea  [44]
What is the course of justice?  [45]
What is the relevance of an arrest warrant?  [56]
What if there is no arrest warrant?  [61]
What the jury should have been told  [63]
Could Ms McMahon’s conduct constitute a crime under s 117(e)?  [66]
Contentions on behalf of Ms McMahon  [66]
Freedom of movement  [68]
Statutory headings  [70]
Role of police  [74]
No offence of assisting a person to avoid arrest  [76]
Relationship between s 71 and s 117(e)  [78]
Delay  [84]
Summary of principles from the case law  [87]
Should there be an order for a retrial?  [88]
Result  [94]
Introduction
[1]        Following the hearing of this appeal on 13 October 2009, we gave judgment allowing Ms McMahon’s appeal, quashing her conviction, and directing the entry of a verdict of acquittal. We made no order for a retrial. These are our reasons for that judgment, which we indicated would follow.
[2]        Ms McMahon appealed by notice dated 27 March 2009, both against her conviction and her sentence. Ms McMahon was originally charged, by information laid indictably on 30 April 2007, with a crime under s 71 Crimes Act 1961. The information alleged that, on 10 January 2007:
(Together with Victor Nottleman) knowing person party to offence punishable by imprisonment assisted that person to avoid arrest.

[3] That charge was abandoned by the police after the depositions hearing held on 28 September 2007. That was because a prerequisite for a crime under s 71 is that an offence must have been committed by the person assisted. That transpired not to be the position here.[1]
[1] See at [33] below.
[4] Subsequently, an indictment was laid charging, under s 117(e) of the Crimes Act, that Ms McMahon:
... on or about the 10^th day of January 2007 at Makurau wilfully attempted to obstruct the course of justice in New Zealand.

[5] The Crown alleged that, despite having the knowledge that the police were looking for her son in relation to an alleged criminal incident, Ms McMahon helped enrol her son under an assumed name at a meditation centre in 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 McMahon v R

Details

AGLC: McMahon v R [2009] NZCA 472
Case: [2009] NZCA 472
Decision Date: 13 October 2009

CaseChat Overview and Summary

In this case, McMahon appealed against her conviction and sentence. McMahon was charged with a crime under section 71 of the Crimes Act 1961, which was abandoned by the police as an offence had not been committed by the person assisted. McMahon was subsequently charged under section 117(e) of the Crimes Act, with attempting to wilfully obstruct the course of justice in New Zealand. McMahon was found guilty by a jury and sentenced to 18 months imprisonment. McMahon appealed the conviction on the basis that the trial judge erred in his summing up, and that her conduct could not constitute a crime under section 117(e) of the Crimes Act. The Court of Appeal found that the trial judge erred in his summing up, and that McMahon's conduct could not constitute a crime under section 117(e) of the Crimes Act. The appeal against conviction was allowed, the conviction was quashed, and a verdict of acquittal was entered. No order for a retrial was made.

Orders