Note Brown v Attorney-General - [2005] NZSC 59

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND

SC 17/05 [2005] NZSC 59

BETWEEN EDWIN CHRISTOPHER BROWN Applicant

ANDATTORNEY-GENERAL Respondent

Hearing: 17 August 2005

Court: Elias CJ and Gault J

Counsel: C R Carruthers QC and A Shaw for Applicant
A Butler and V Sim for Respondent

Judgment: 29 August 2005

JUDGMENT OF THE COURT

A. The application for leave to appeal is dismissed.

B. Any question of costs is reserved.

REASONS FOR DECLINING LEAVE TO APPEAL

[1] The applicant served 17 months of a 9 year sentence for aggravated robbery and wounding with intent imposed in December 1995. In June 1997 his convictions were set aside on appeal and a new trial ordered. The basis on which the convictions were set aside was new evidence which cast doubt on the identification of the applicant at trial as the offender. The new evidence included new “facial mapping” and DNA analysis not available at trial. The new DNA analysis at the appeal detected no DNA from Mr Brown in sweat on a T-shirt which, on the Crown case, had been worn by the offender. That did not exclude Mr Brown, because the expert evidence was that a significant proportion of the population does not excrete DNA in sweat. After Mr Brown’s conviction was overturned, further DNA analysis was undertaken by the police of the sweat on the T-shirt and compared with blood samples obtained from two other men. The post-appeal testing suggested (to a low probability) the presence of the DNA of a flatmate of the applicant. On the basis of

BROWN V ATTORNEY-GENERAL SC 17/05 [29 August 2005]

the further DNA analysis and the additional evidence available at the appeal, the Crown did not oppose Mr Brown’s application for discharge under s 347 of the Crimes Act 1961.

[2] In proceedings filed in 1998 but not served until 2002, Mr Brown claimed a declaration that his “trial, conviction, and sentence took place in breach of the provisions of the New Zealand Bill of Rights Act 1990” and sought compensation of
$3 million against the Attorney General. The basis of the claim was the fact that before his trial the applicant had been declined legal aid funding to obtain DNA testing of the T-shirt from Australian forensic science consultants. The claim for compensation was dismissed by Glazebrook J in the High Court, in a judgment reported at [2003] NZLR 335. The Judge considered that the declaration of breach of the Bill of Rights Act was inappropriate. Mr Brown’s further appeal to the Court of Appeal was dismissed in a judgment of 3 March 2005 in CA 39/03. He applies to this Court for leave to bring a second appeal.

[3] We are satisfied that no point of general or public importance arises on the proposed appeal and that there is no basis for considering that any substantial miscarriage of justice may have occurred. Although denial of funding to obtain access…

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 Note Brown v Attorney-General 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: [2005] NZSC 59
Decision Date: 29 August 2005

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from Edwin Christopher Brown, who was previously convicted of aggravated robbery and wounding with intent. His initial conviction was set aside on appeal, and a new trial was ordered, based on new evidence, including facial mapping and DNA analysis. Despite further DNA analysis suggesting the presence of a flatmate's DNA, the Crown did not oppose Brown’s discharge under section 347 of the Crimes Act 1961. Brown claimed a declaration that his trial, conviction, and sentence breached the New Zealand Bill of Rights Act 1990 and sought compensation for the denial of legal aid to obtain DNA testing before his trial. His claims were dismissed by the High Court and the Court of Appeal.

The legal issues involved whether the denial of legal aid to obtain DNA testing constituted a breach of the right to a fair trial under sections 25 and 27 of the New Zealand Bill of Rights Act, and whether this denial caused any actual disadvantage that affected the fairness of his trial. The court considered whether the refusal of funding for the proposed DNA tests led to any miscarriage of justice. The applicant argued that the lower courts' reasoning was flawed, but the court found that the lower courts' conclusions were not erroneous and that the denial of funding did not cause any disadvantage to the applicant.

The Supreme Court concluded that no point of general or public importance arose from the proposed appeal. The court found that the tests sought by Brown’s counsel would not have led to the DNA results relevant to his discharge. The expert evidence indicated that the absence of Brown’s DNA in the sweat on the T-shirt did not exclude him as the wearer because a significant proportion of the population does not secrete DNA in sweat. Additionally, the court was not persuaded that the denial of funding caused any actual disadvantage to Brown that affected the fairness of his trial. Consequently, the application for leave to appeal was dismissed.

Orders