Neilson v The Queen - [2013] NZCA 645

IN THE COURT OF APPEAL OF NEW ZEALAND

CA656/2013
[2013] NZCA 645

BETWEEN	ANDREW FRANCIS NEILSON Appellant
AND	THE QUEEN Respondent

Hearing:	21 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	W T Nabney for Appellant M J Lillico for Respondent
Judgment:	12 December 2013 at 12:30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Asher J)

Following a trial in the Tauranga District Court in June 2013, Mr Neilson was convicted of three counts of wilfully attempting to pervert the course of justice. Judge L M Bidois sentenced him on 27 August 2013 to two years, two months imprisonment.[1] He appeals that sentence.
[1]R v Neilson DC Tauranga CRI-2011-070-3112, 27 August 2013.
At about 10.00 pm on New Year’s Day 2011, Mr Neilson was involved in an incident where, after some confrontational behaviour, he attracted the attention of the police. He was found to have been in possession of a knuckle duster. When the police attempted to arrest Mr Neilson for possession of an offensive weapon, he had to be held on the ground and handcuffed before being placed into the police car by force after a significant struggle. He was then transported back to the police station, and charged with possession of an offensive weapon, resisting arrest and assaulting the police.
On arrival, Mr Neilson made allegations that the arresting officers had violated his anus with a torch, pen or finger while he was being transported to the police station. A doctor called to the police station noted a two centimetre abrasion on Mr Neilson’s forehead. He carried out an external visual examination of Mr Neilson’s anus and detected no bleeding or bruising.
In the hours that followed, Mr Neilson continued to make allegations that the police had acted in a way that was unprofessional and confrontational; used force to arrest him that was excessive and constituted an assault; and penetrated his anus with a torch, pen or finger while en route to the police station.
Some time after originally being bailed from the police station, but prior to photographs being taken on 4 January 2011, Mr Neilson fabricated injuries. This was done to support his claim that the police had smashed his head into the pavement at the time of his arrest and then into the side of a car. He faked an abrasion on his forehead, cuts to both ears and showed blood coming out of each ear. He maintained right through to his trial that the photographs accurately recorded injuries inflicted on him by the police.
Following the photographs being taken on 4 January 2011, the police initiated an investigation into the complaint. He was interviewed in detail on 7 January 2011 over an hour and 50 minutes. He claimed that the police rammed his head into the road tarseal and the side of the police car three or four times. He stated that his anus had been penetrated by around 10 centimetres…

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 Neilson v The Queen

Details

AGLC: Neilson v The Queen [2013] NZCA 645
Case: [2013] NZCA 645
Decision Date: 12 December 2013 at 12:30 pm

CaseChat Overview and Summary

The appellant, Andrew Francis Neilson, appealed against his sentence for wilfully attempting to pervert the course of justice. The appeal was dismissed by the Court of Appeal of New Zealand. The primary legal issue was whether the starting point of the sentence, as determined by the trial judge, was appropriate given the nature and extent of the appellant’s offending. The appellant argued that the starting point was too high, citing previous cases such as R v Hillman and Deane v R, which involved similar charges but resulted in lower sentences.

The court assessed the appellant’s culpability based on several factors. Firstly, the appellant deliberately made false allegations against police officers, which were not spontaneous but involved significant premeditation. Secondly, the appellant fabricated evidence to support his claims, indicating a high level of culpability. Furthermore, the appellant persisted with his false claims for over two years, causing considerable stress to the police officers involved and wasting significant police resources. The court found that these factors justified the starting point of two and a half years imprisonment, considering the need for a condign and deterrent sentence to uphold the integrity of the justice system.

The court rejected the argument that the starting point was too high, noting that the trial judge had appropriately considered the totality of the appellant’s actions and the serious impact of his false allegations on the police officers and the community. The appeal against sentence was dismissed, and the original sentence of two years and two months imprisonment was upheld.

Orders