R v Auckram - [2007] NZCA 570

IN THE COURT OF APPEAL OF NEW ZEALAND
CA282/07
NZCA [2007] 570
THE QUEEN
v
KENNETH ROSS AUCKRAM
Hearing:9 October 2007

Court:Arnold, Ronald Young and Fogarty JJ
Counsel:C Muston for Appellant

M D Downs for Crown

Judgment:12 December 2007 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
[1]       Kenneth Auckram stabbed Garry Arthur Barr in the chest, with a knife. He was convicted by a jury of wounding with intent to cause grievous bodily harm. He appeals his conviction.
[2]       The issue at trial was whether or not he was acting in self-defence.
[3]       On the day in question, Mr Auckram was in a house at Ruawai, which he was renting to buy from Karen Smith. He was in arrears of rent. Ms Smith arrived uninvited, together with Mr Barr. There was some dispute about the purpose of the visit, but at the very least they were there to discuss the arrears of rent. There was an argument. Mr Auckram went into his bedroom, armed himself with a baton, and came out fighting, hitting Mr Barr with the baton.   Mr Barr subdued and disarmed him.   They then had a discussion about the rent. Mr Auckram told Mr Barr that he had receipts for the rent in his car. All three of them went outside to the carport. Mr Auckram opened a car door while Mr Barr stood beside him. Mr Auckram grabbed a knife, which he opened and shortly after stabbed Mr Barr.
[4]       Later that day the police apprehended Mr Auckram driving his car. The car was seized and subsequently searched by the police. There were no receipts in the car.
[5]       The Judge summarised the Crown argument in his summing up in this way:
[33]     [Counsel for the Crown] then turned to the surrounding circumstances relating to the wounding beside the car. He suggests to you that it is significant that when the police checked the car the next day, they describe it as being very clean and certainly there were no receipts for rent there.    The evidence is that there had been some discussion about receipts for rent being in the car when the two gentlemen went outside. He submits to you that either the receipts were never in the car or that Mr Auckram had taken them out, but what he suggests to you is significant that either way Mr Auckram was not getting receipts when he went to the car, but he was going there specifically to get the knife.
[34]     In considering the circumstances surrounding the wounding he suggests that Mr Barr did not see the knife because he did not take any evasive action. He invites you to consider where the knife hit Mr Barr in terms of wherever else it could have hit Mr Barr on the body and he suggests to you that that place where it contacted Mr Barr is of some significance.
[35]     Having identified the issue…

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 R v Auckram

Details

AGLC: R v Auckram [2007] NZCA 570
Case: [2007] NZCA 570
Decision Date: 12 December 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Kenneth Ross Auckram was heard and decided on 12 December 2007. The appellant, Auckram, was convicted of wounding with intent to cause grievous bodily harm after stabbing a man, Garry Arthur Barr, in the chest. The central issue in the case was whether Auckram acted in self-defence. The appellant argued that the Crown's closing submissions breached the principle established in R v Hart, which states that the prosecution should not ask the jury to disbelieve unchallenged evidence unless it is explicitly challenged in cross-examination.

The court found that the principle in Hart was indeed breached because Auckram was not challenged on his evidence that he had receipts in the car, nor was it put to him that he was not getting receipts but rather going to the car to get the knife. However, the court concluded that the breach did not lead to a miscarriage of justice. The court reasoned that even if the jury had accepted Auckram's version of events, they would inevitably have considered his use of the knife to be excessive, thus excluding self-defence. Therefore, the unfair submission by the Crown would not have affected the jury's consideration of the ultimate issue of reasonable force.

In summary, the appeal was dismissed, and the conviction of the appellant was upheld. The court determined that there was no miscarriage of justice despite the procedural error in the Crown's closing submissions.

Orders