Parker v Police - [2012] NZHC 1231

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-449 [2012] NZHC 1231

SHANNON LAING PARKER
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 29 May 2012

Appearances: G Newell for the appellant
A Longdill and S Beswick for the respondent

Judgment: 1 June 2012

JUDGMENT OF CLIFFORD J

Introduction

[1] On 7 February 2011 the appellant, Shannon Laing Parker, was arrested and charged with burglary. Ms Parker pleaded not guilty. Her trial took place in the summary jurisdiction before District Court Judge McNaughton at North Shore District Court on 8 and 10 August and 16 September 2011. On 20 October 2011
Judge McNaughton delivered a reserved decision convicting Ms Parker on the single charge of burglary. On 8 December 2011 Ms Parker was sentenced to a term of imprisonment of two years.

[2] Ms Parker now appeals her conviction and sentence.

PARKER v POLICE HC AK CRI-2011-404-449 [1 June 2012]

Facts

[3] On the evening of 6 February 2011 security guards working in the Omaha area located a male, Mr Julian Lemmon, hiding in bushes outside 14 The Southern Isle. As I understand it, Mr Lemmon acknowledged to the security guards that he was there to act as a lookout whilst another person, Ms Parker, burgled the property. Ms Parker was arrested at approximately 4.35am the next morning. At her trial, Mr Lemmon was a principal witness. Evidence was also given by some 14 other witnesses. In essence, the Judge accepted Mr Lemmon’s evidence and did not accept that of Ms Parker or a person she called in her defence, Ms Dyson.

[4] Something of the view the Judge took of Ms Parker can be taken from his sentencing notes. Having noted that she continued to blame “the witless Mr Lemmon” he went on to comment:[1]

As I said in that decision, the detailed and elaborate construction of your totally perjured defence was nothing short of brilliant. I have no doubt that you were the architect of that defence, and you co-opted your witness Ms Dyson also to commit perjury to support that defence.[2] You are obviously very intelligent, determined and thoroughly devious and, in my assessment, quite a dangerous person.

[1] Police v Parker DC North Shore CRI-2011-044-000724, 8 December 2011 at [1].

[2] Although the position was not absolutely clear, I understand that Ms Parker may at one point have faced a charge of perverting the course of justice relating to events in 2009 when she

pleaded guilty to burgling a property in connection with a dispute she had with a Sergeant

Haughey. It is simply not possible or helpful – given the very limited information provided to me, to consider or speculate further on the significance of those matters. Clearly they are an issue for Ms Parker and, moreover, the way Mr Utting handled the cross-examination of Sergeant Haughey is also an issue for her. As I said, however, I put those matters to one side as I am not in a position to do anything else.

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.

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Details

Case: [2012] NZHC 1231
Decision Date: 1 June 2012

CaseChat Overview and Summary

Parker v Police is an appeal against conviction and sentence on a charge of burglary. Parker was convicted by Judge McNaughton after a defended hearing at the North Shore District Court. The appeal is limited to the failure to offer Parker her right to elect trial by jury. Parker contends that the failure to offer her her right to elect trial by jury was a denial of a fundamental right and that this denial resulted in a miscarriage of justice. The police accept that Parker was not offered her election but argue that this did not result in a miscarriage of justice. The court found that the failure to offer Parker her right to elect trial by jury was a miscarriage of justice. The court found that Parker had not been offered her election by the court, nor had her counsel elected on her behalf. The court found that Parker was unaware of her right to elect trial by jury. The court found that while the right to elect trial by jury is not an absolute right, it is a fundamental right and one that should be afforded to all defendants. The court found that the failure to offer Parker her right to elect trial by jury was a miscarriage of justice and remitted the matter to the District Court for Parker to be offered her election and for there to be a re-trial in terms of that election.

Orders