Hearing:	21 April 2015
Court:	Wild, Clifford and Dobson JJ
Counsel:	C J Tennet for Appellant Nicholson M N Pecotic for Appellant Cuthers K Raftery for the Crown
Judgment:	12 August 2015 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal by Mr Nicholson, which is against both conviction and sentence, is dismissed.
BThe appeal by Mr Cuthers, which is against conviction only, is dismissed.
CThe application by the Solicitor-General for leave to appeal against the sentence imposed on Mr Cuthers is granted. That appeal is allowed. The minimum period of imprisonment of 13 years imposed on Mr Cuthers is quashed. A minimum period of imprisonment of 17 years is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Contents

Para No
Introduction	[1]
Background	[7]
Mr Nicholson’s appeal against conviction Wrongful admission of statements to the police	[13]
Right to silence	[27]
Failure to direct on intoxication	[32]
Inadequate direction on intent	[35]
Failure to separate the “pathways” to murder	[38]
Mr Cuthers’ appeal against conviction	[44]
The Judge’s summing up	[45]
Failure to direct on s 66	[48]
Failure to direct on ss 167(b) and 168(1)(a)	[53]
Solicitor-General’s application for leave to appeal against Mr Cuthers’ sentence	[62]
Mr Nicholson’s appeal against sentence	[78]
Result	[84]

Introduction

In the early hours of 27 July 2011 the appellants arrived together at the home of Mr McMurdo in Helensville intending to steal his possessions. They left some time later having stolen a substantial amount of his property.
Three days later Mr McMurdo’s body was found at the back of his property. He had received a severe beating and been left outside to die.
At the end of their trial in November 2013 the jury found both appellants guilty of murdering Mr McMurdo.
On 28 February 2014 Lang J sentenced Mr Nicholson to life imprisonment and ordered him to serve a minimum period of imprisonment (MPI) of 17 years. The Judge sentenced Mr Cuthers to life imprisonment and imposed a MPI of 13 years.[1]
[1]R v Nicholson [2014] NZHC 334 [Sentencing notes]. The Judge also sentenced each appellant to lesser, concurrent, terms of imprisonment for other offences to which they had pleaded guilty, including offering to supply (to Mr McMurdo) methamphetamine.
On various grounds, some common, each appellant appeals against his conviction. Mr Nicholson also appeals against the MPI imposed, contending it was manifestly excessive.
The Solicitor-General applies for leave to appeal against the 13 year MPI imposed on Mr Cuthers. He submits it was manifestly inadequate and ought to have been 17 years as for Mr Nicholson.

Background

Mr Cuthers was a drug dealer, in particular selling methamphetamine. On 26 July 2011 Mr McMurdo responded to a text message Mr Cuthers had sent out to…

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 Nicholson v R

Details

AGLC: Nicholson v R [2015] NZCA 366
Case: [2015] NZCA 366
Decision Date: 12 August 2015 at 10.30 am

CaseChat Overview and Summary

Nicholson v R [2015] NZCA 366 was a case involving two appellants, Andrew Parry Nicholson and John Grant Cuthers, who were both convicted of murdering Lee Ross McMurdo. Nicholson appealed against both his conviction and sentence, while Cuthers only appealed against his conviction. The case was heard by Wild, Clifford, and Dobson JJ, with the judgment delivered by Wild J. The Court dismissed Nicholson's appeal against both conviction and sentence, while dismissing Cuthers' appeal against conviction. The Court also granted the Solicitor-General leave to appeal against the sentence imposed on Cuthers, and allowed that appeal, substituting a minimum period of imprisonment of 17 years for the 13 years imposed by the trial Judge.

The key legal issues in the case revolved around the admissibility of statements made by Nicholson to the police, the right to silence, directions on intoxication, intent, and the separation of the "pathways" to murder. The Court found no merit in Nicholson's arguments and dismissed his appeal against conviction. The Court also found no error in the trial Judge's summing up to the jury regarding Cuthers' conviction and dismissed his appeal against conviction.

The Court then turned to the Solicitor-General's application for leave to appeal against Cuthers' sentence. The Court found that the trial Judge had erred in principle by distinguishing between the culpability of the two appellants when fixing the sentences he would have imposed, but for the operation of s 104 of the Sentencing Act 2002. The Court held that the appropriate minimum period of imprisonment for Cuthers was also 17 years, and allowed the appeal, quashing the 13-year minimum period of imprisonment imposed on Cuthers and substituting a 17-year minimum period of imprisonment.

Orders