R v Davis - [2008] NZCA 424

IN THE COURT OF APPEAL OF NEW ZEALAND
CA618/07
[2008] NZCA424
THE QUEEN
v
TREVOR LINDSAY DAVIS
Hearing:25 September 2008

Court:O'Regan, Chisholm and Gendall JJ
Counsel:W C Pyke for Appellant

K J Glubb for Crown

Judgment:16 October 2008 at 2.30 pm

JUDGMENT OF THE COURT

AAppeal against convictions on counts 1 and 2 dismissed.
BAppeal against conviction on count 3 allowed. Conviction quashed. No retrial ordered.
CAppeal against sentence allowed. Sentence on count 2 fixed at seven years’ imprisonment.

REASONS OF THE COURT
(Given by Gendall J)
[1]       The appellant was convicted following a jury trial on counts of aggravated burglary, wounding with intent to cause grievous bodily harm, and kidnapping. He was sentenced to eight years’ imprisonment on the count of wounding, with concurrent terms of five years’ imprisonment on the counts of kidnapping and four years’ imprisonment of the count of aggravated burglary. He appeals against convictions and sentence.
Background
[2]       The complainant lived with his wife and daughter in their home in South Auckland. At 9.20pm on 27 November 2004, three men broke into the home and the complainant was initially attacked by one, later identified by him as Mr Peter Muller, in the kitchen. He was struck about the head with a weapon. He put up a fierce resistance so the assailant called for assistance from another who had been standing, inside the doorway, apparently as a lookout. That person was identified as the appellant. He entered the conflict and both accused continued the attack upon the victim, striking him about the legs with the steel bar. The complainant grabbed a knife and attempted to strike the appellant with it. In the meantime, the third intruder had entered the lounge and disabled the complainant’s wife, binding her hands and mouth with tape. That person has never been identified.
[3]       Such was the resistance put up by the male victim that all the assailants departed and the police were called. At the scene a cellphone was found which was later to be identified as that of the appellant, and a fingertip of a glove was found which, after scientific analysis, revealed mixed DNA of the appellant and the complainant.
[4]       Evidence at the trial was that the complainant had been visited by the appellant at his home some weeks before the home invasion, in order to serve some debt-related documents upon him. The evidence was that the complainant was able to identify the appellant as one of his attackers after being shown a photographic montage.
[5]       The appellant admitted to the police that he had been a visitor to the complainant’s home on the earlier occasion in connection with debt collection, but denied being present when the home invasion and assaults upon the complainant and his wife occurred. His explanation for the presence of his cellphone and DNA on the glove tip was that he had used his phone on the day prior to the date of the offending (there was a record of him having made…

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 Davis

Details

AGLC: R v Davis [2008] NZCA 424
Case: [2008] NZCA 424
Decision Date: 16 October 2008

CaseChat Overview and Summary

The appeal in R v Davis was heard by O'Regan, Chisholm and Gendall JJ. The appellant, Trevor Lindsay Davis, was convicted of aggravated burglary, wounding with intent to cause grievous bodily harm, and kidnapping. The Crown's case was that Davis, along with two other men, broke into the complainant's home and committed these crimes, with Davis initially acting as a lookout before joining the attack on the complainant. Davis was sentenced to eight years' imprisonment for the wounding charge, with concurrent terms of five years for kidnapping and four years for aggravated burglary. Davis appealed against both his convictions and his sentence.

The primary legal issues before the court were whether the trial judge's directions to the jury regarding identification evidence and parties were adequate, and if not, whether these shortcomings could have led to a miscarriage of justice. Davis's counsel argued that the trial judge failed to properly warn the jury that mistaken identification could result in a serious miscarriage of justice, as required by s 126(2)(a) of the Evidence Act 2006. Further, it was contended that the judge's directions on the role of parties in the commission of the crimes were confusing and legally inaccurate. The Crown conceded that the warning regarding mistaken identification was missing but argued that the other evidence of Davis's involvement was strong enough to prevent a reasonable possibility of an acquittal.

The court found that although the trial judge did not give the required warning on mistaken identification, the jury was likely to have been mindful of this given the conflicting evidence. The court concluded that there was no reasonable possibility of an acquittal even without the warning, due to the other circumstantial evidence. Regarding the directions on parties, the court found that while the judge's directions were adequate for the aggravated burglary and wounding charges, they were insufficient for the kidnapping charge. The court determined that the jury might have convicted Davis of kidnapping based on the general enterprise, rather than because Davis knew that kidnapping could occur, as required by law.

The court also addressed the appeal against the sentence, noting that the starting point of nine years for the wounding charge was appropriate given the aggravating factors. However, the court found that the sentence should be reduced by one year due to the quashed kidnapping conviction, resulting in a final sentence of seven years for the wounding charge. The appeals against the convictions on counts 1 and 2 were dismissed, while the appeal against the conviction on count 3 was allowed, and the conviction quashed with no order for a retrial. The appeal against the sentence was allowed, and the sentence on count 2 was fixed at seven years’ imprisonment.

Orders