Osborne v The Queen - [2020] NZCA 192

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA179/2008
[2020] NZCA 192

BETWEEN	RATIMA JOSEPH OSBORNE Applicant
AND	THE QUEEN Respondent

Hearing:	30 April 2020
Court:	Kós P, Miller and Collins JJ
Counsel:	V C Nisbet and S W O Campbell for Applicant K S Grau for Respondent
Judgment:	28 May 2020 at 2.30 pm

JUDGMENT OF THE COURT

The application for recall of judgment Osborne v R [2010] NZCA 372 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 27 May 2002, Mr Osborne, who at the time was 17 years old, pleaded guilty to having murdered Mr Johnson on 9 July 2001. He was sentenced by Potter J to life imprisonment immediately after he entered his guilty plea. It appears the Crown did not seek a minimum period of imprisonment (MPI) greater than the statutory minimum of 10 years.[1]
[1]Criminal Justice Act 1985, s 80.
On 16 August 2010, this Court dismissed Mr Osborne’s appeal against conviction.[2] It did so after being satisfied no miscarriage of justice arose through Mr Osborne having pleaded guilty to murder. Two grounds were relied upon in support of the appeal:[3]
(a)His trial lawyer, Mr Fairbrother, gave wrong advice to Mr Osborne to plead guilty. This argument was founded on the proposition that the partial defence of provocation was available to Mr Osborne and that he could also have relied upon the defence that he lacked murderous intent.[4]
(b)Mr Osborne did not understand what he was doing when he pleaded guilty.
[2]Osborne v R [2010] NZCA 372.
[3]R v Le Page [2005] 2 NZLR 845 (CA) at [16], citing R v Stretch [1982] 1 NZLR 225 (CA); and R v Ripia [1985] 1 NZLR 122 (CA). See also Whichman v R [2018] NZCA 519 at [35]; and Mills v R [2020] NZCA 88 at [22].
[4]Crimes Act 1961, s 169. This defence was repealed on 8 December 2009 by s 4 of the Crimes (Provocation Repeal) Amendment Act 2009.
Mr Osborne then sought leave to appeal to the Supreme Court. He acted for himself when he made that application. In the Supreme Court Mr Osborne disavowed any reliance on the partial defence of provocation. Instead, he raised an alibi argument. The application for leave to appeal to the Supreme Court was dismissed on 10 November 2010, with the Supreme Court finding that no miscarriage of justice arose from Mr Osborne’s guilty plea and that his proposed appeal had no prospects of success.[5]
[5]Osborne v R [2010] NZSC 134.
Mr Osborne now applies to have this Court exercise its inherent power to recall its judgment of 16 August 2010. In exceptional cases this Court may revisit its determination of a criminal appeal. The scope of this jurisdiction, however, is very limited and requires Mr Osborne to satisfy three criteria:[6]
(a)that there was a “fundamental error in procedure” that caused something to go “seriously wrong with the appeal process”; and

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 Osborne v The Queen

Details

AGLC: Osborne v The Queen [2020] NZCA 192
Case: [2020] NZCA 192
Decision Date: 28 May 2020 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide on an application by Ratima Joseph Osborne to recall a previous judgment dismissing his appeal against conviction. Osborne was convicted of murdering Mr Johnson on 9 July 2001, and was sentenced to life imprisonment. He appealed against the conviction, arguing that his trial lawyer had given him incorrect advice to plead guilty, and that he did not understand what he was doing when he pleaded guilty. The appeal was dismissed, and Osborne sought leave to appeal to the Supreme Court, which was also dismissed. Osborne now applies for the Court of Appeal to exercise its inherent power to recall its judgment of 16 August 2010. The court considered whether there was a fundamental error in procedure, whether a substantial miscarriage of justice would result if the error is not corrected, and whether there is no alternative remedy available. The court found that there was no fundamental error in procedure, as the court had carefully assessed Osborne's argument that the defence of provocation was available to him and concluded that the chances of provocation succeeding were remote. The court also found that a substantial miscarriage of justice would not arise if the application to recall is declined, as there is no clear narrative for provocation and none has been offered that can accommodate the forensic evidence. Finally, the court found that there are alternative remedies available to a recall of this Court’s 2010 judgment, such as an application to the Governor-General to exercise her prerogative of mercy powers. The application for recall of judgment Osborne v R [2010] NZCA 372 is declined.

Orders