O'Brien v The Queen - [2020] NZCA 299

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA639/2019
[2020] NZCA 299

BETWEEN	KORI ATAMA O’BRIEN Appellant
AND	THE QUEEN Respondent

Hearing:	18 May 2020
Court:	Cooper, Duffy and Edwards JJ
Counsel:	S R Lack for Appellant B F Fenton for Respondent
Judgment:	20 July 2020 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

In the early hours of 15 October 2017, the appellant, Mr O’Brien, together with his associates cornered a man known to them in a bar. They punched him in the head and face several times. He was then taken to a hotel where he was allegedly assaulted further and forced to take drugs. From there he was taken to a property believed to be a gang headquarters. While left alone, the complainant called the police, who came to his aid on the pretence of arresting him.
Mr O’Brien pleaded guilty to assault with intent to injure and injuring with intent to injure in relation to the assault at the bar.[1] He was acquitted of charges relating to the alleged assault at the hotel but was convicted of kidnapping following a trial before Judge Harding and a jury in the District Court at Tauranga.[2] Mr O’Brien appeals that conviction on five separate grounds, each of which are addressed below.

The trial

[1]Crimes Act 1961, ss 193 and 189(2).

[2]Section 209.

The Crown case at trial was that the attack on the complainant was in retaliation to events that occurred in 2012. It was said that Mr O’Brien believed that the complainant had taken his car and propositioned his girlfriend at that time.
Later that year, both Mr O’Brien and the complainant were in the same prison. The complainant said he received a letter from Mr O’Brien poked under his cell door saying that the complainant “owe[d] him” because he had been “trying it on with his girlfriend” and his car was never returned. Subsequently, the two men were in a prison van together and Mr O’Brien allegedly told the complainant that he was “lucky he never saw [the complainant] in the yards or he would have smashed [the complainant]”.
The complainant was the first witness called by the Crown at trial. He gave his evidence by way of audio-visual link from prison. Early on in his testimony he said he could not recall certain events, and he was permitted to refresh his memory from his police statement. That did not assist. The prosecutor was granted leave to put a specific paragraph of the complainant’s police statement to him pursuant to s 90(7) of the Evidence Act 2006.[3] That ruling is challenged as part of the first ground of appeal.
[3]R v Christian [2019] NZDC 18670 [Ruling 1 of Judge Harding].
Soon after this ruling, and in the face of the complainant continuing to say he could not remember anything he said to police, the prosecutor’s application…

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 O'Brien v The Queen

Details

AGLC: O'Brien v The Queen [2020] NZCA 299
Case: [2020] NZCA 299
Decision Date: 20 July 2020 at 10 am

CaseChat Overview and Summary

The appeal against conviction brought by Kori Atamah O'Brien was dismissed by the Court of Appeal of New Zealand. The appeal stemmed from O'Brien's conviction for kidnapping following a trial in the District Court at Tauranga. O'Brien appealed the conviction on five grounds. The Court of Appeal found that none of the grounds had merit and dismissed the appeal. The Court upheld the trial judge's rulings on the admissibility of the complainant's prior consistent statement, the declaration of the complainant as a hostile witness, the refusal to admit evidence of the complainant's prior dishonesty convictions, the refusal to dismiss the charges, and the prosecutor's closing address. The Court found that the jury had sufficient evidence to legitimately find O'Brien guilty of the charges and that the trial was conducted fairly.

The appeal against conviction is dismissed. The Court of Appeal found no errors in the trial proceedings and upheld the jury's verdict. The trial judge's rulings on various evidentiary issues were correct and the jury was properly directed in assessing the credibility of the complainant's evidence. The Court found that there was sufficient evidence to support the jury's finding of guilt and that the appeal grounds did not establish that the verdict was unreasonable. The appeal was therefore dismissed and O'Brien's conviction stands.

Orders