Michael Kristian Olsen v The Queen - [2017] NZSC 18

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 152/2016
[2017] NZSC 18

BETWEEN	MICHAEL KRISTIAN OLSEN Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, Arnold and OʼRegan JJ
Counsel:	Applicant in person F G Biggs for Respondent
Judgment:	2 March 2017

JUDGMENT OF THE COURT

A The application for an extension of time is granted.
B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

On 20 August 2014, Mr Olsen was convicted, after a jury trial, of one count of wounding with intent to injure. His appeal against conviction was dismissed by the Court of Appeal on 18 June 2015.[1] He now seeks leave to appeal to this Court.
[1]Olsen v R [2015] NZCA 256 (Winkelmann, Andrews and Gilbert JJ).
The application for leave to appeal is out of time. We grant an extension of time. The Crown does not appear to oppose the extension and it is appropriate for this Court to consider the issues of non‑disclsoure discussed below.

Background

The incident giving rise to the charge occurred on the evening of 24 December 2012. The victim and her young daughter were walking along Queen Street in Auckland when Mr Olsen and an associate approached them. Mr Olsen muttered something. When the victim asked him what he wanted, he spat in her face. The victim grabbed Mr Olsen’s shirt and he punched her in the face, breaking her glasses and causing her to fall over. Mr Olsen then ran off.
Mr Olsen and his associate were located by police a short distance away at a bus stop in Victoria Street. Mr Olsen was handcuffed but escaped. He was found again shortly afterwards in Albert Street and taken into custody.
At trial the victim and her daughter gave evidence describing the offence and giving a description of the offender. This in general terms matched that of Mr Olsen, including the fact he was wearing a red basketball singlet.
Evidence was also called from a taxi driver parked nearby when the incident occurred. He saw the punch but not the events leading up to it. He had chased Mr Olsen after the incident, lost sight of him in Elliott Street but caught sight of him again in Victoria Street. He followed Mr Olsen to the bus stop where the arrest occurred and confirmed to the police that they had detained the correct person.
The arresting officer gave evidence that, when he entered Mr Olsen’s cell in the morning, Mr Olsen said “I stuffed up,” that he could not remember much from the previous day but that he would plead guilty to a charge of male assaults female.
At trial, Mr Olsen gave evidence. He said that he had just wanted to wish the victim a merry Christmas. He said she grabbed him and he was struck…

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.

Keep reading for free

Create a free CaseChat account to read Michael Kristian Olsen v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZSC 18
Decision Date: 2 March 2017

CaseChat Overview and Summary

The case of Michael Kristian Olsen versus The Queen involved a conviction for Olsen of wounding with intent to injure. Olsen appealed against his conviction after it was dismissed by the Court of Appeal on 18 June 2015. Olsen now sought leave to appeal to the Supreme Court. The application for leave to appeal was out of time, but an extension of time was granted. The Crown did not oppose the extension, and it was appropriate for the Supreme Court to consider the issues of non-disclosure.

The legal issues that the Supreme Court had to decide included whether the non-disclosure of information by the prosecution could result in a miscarriage of justice. The Supreme Court also had to decide if the trial counsel had erred in conducting a defence of lack of intent, rather than a defence of identity. Additionally, the Court had to consider whether there was a risk of a miscarriage of justice due to the Court of Appeal's conclusion regarding the further evidence Olsen sought to have admitted on appeal.

The Supreme Court found that the non-disclosure of information by the prosecution did not give rise to a risk of a miscarriage of justice. The information, if disclosed, could have allowed Olsen to challenge identity, but the Supreme Court noted that the photo montage information could not have rebutted the other prosecution evidence on identity. The Supreme Court also found that the Court of Appeal's conclusions regarding the further evidence Olsen sought to have admitted on appeal did not cast doubt on the safety of the conviction. Consequently, the Supreme Court dismissed the application for leave to appeal.

The final orders of the Supreme Court were that the application for an extension of time was granted, and the application for leave to appeal was dismissed.

Orders