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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAIALBLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA260/2012 [2013] NZCA 657
BETWEEN BLAIR ROBERT MCNAUGHTON
Appellant
AND
THE QUEEN Respondent
Hearing: 9 and 10 October 2013 Court:
O'Regan P, Hammond and Harrison JJ
Counsel:
R M Lithgow QC and P A Walker for Appellant
L C Preston for RespondentJudgment:
19 December 2013 at 11.00 am
JUDGMENT OF THE COURT
A The appeal is allowed.
B The conviction is quashed and a retrial is ordered.
COrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of retrial.
Publication in law report or law digest permitted.
REASONS OF THE COURT
(Given by Harrison J)
MCNAUGHTON V R CA260/2012 [2013] NZCA 657 [19 December 2013]
Introduction
[1] Blair McNaughton was found guilty of one charge of murdering Troy Minto following his retrial in the High Court at Nelson before Miller J and a jury. He was convicted and sentenced to life imprisonment with a minimum sentence of 10 years.1
[2] It was undisputed at trial that Mr McNaughton killed Mr Minto by shooting him through the chest with a shotgun at close range. Mr McNaughton’s principal defence was that he acted in self-defence. He also denied that he acted with murderous intent.
[3] Mr McNaughton appeals against his conviction on a number of grounds. Two are relevant to our decision: (a) whether the Crown wrongly invited the jury to infer guilt from Mr McNaughton’s failure to disclose the defence of self-defence prior to trial;2 and (b) whether the prosecutor failed to cross-examine Mr McNaughton on a relevant matter, incorporating the related issue of whether the Judge gave an erroneous direction in answer to a jury question.3 Mr Lithgow QC for Mr McNaughton says that if the appeal is upheld on either ground this Court should substitute a verdict of manslaughter for murder. That is because the common law of New Zealand recognises the partial defence of excessive self-defence.
[4] It is unnecessary for us to address the other grounds advanced by Mr Lithgow except to reject his submission that the trial Judge wrongly admitted in evidence Mr McNaughton’s statement to the police.
Facts
[5] In allowing Mr McNaughton’s appeal against conviction for murder at his first trial this Court narrated the relevant facts as follows:4
[11] The accounts of witnesses to the events leading up to the shooting were confused and inconsistent. The summary that follows is intended to set the scene for the consideration of the issues on appeal. As there are disputes about a number of factual matters, the summary should be seen as no more
1 R…
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