R v Dobbyn - [2014] NZHC 2055

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-18344 [2014] NZHC 2055

IN THE MATTER
of an application for discharge pursuant to

s 347 of the Crimes Act 1961

BETWEEN

THE QUEEN

AND

ANTHONY CHARLES DOBBYN Offender

Hearing: 13 August 2014

Counsel:

BD Tantrum and RK Thomson for Crown
SJ Bonnar QC for Offender (Applicant)

Judgment:

28 August 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 28 August 2014 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Stephen Bonnar QC (Auckland) for Offender

R v DOBBYN [2014] NZHC 2055 [28 August 2014]

Introduction

[1] Mr Dobbyn has been found guilty by a jury on a count of manufacturing methamphetamine.1 He submits that the jury was wrong and he should be discharged. I delayed entering a conviction so I could hear his argument.

Issues

[2] There are two issues:
(a) Is the jury’s verdict inconsistent with its verdict on Mr Grant Dobbyn? (b) If not, was the verdict reasonably available to the jury on the

evidence?

The law

[3] I have a discretion to discharge Mr Dobbyn, even though the jury found him guilty.2 However, it is rare for a Judge to discharge an accused after a jury’s verdict because it is the jury’s function to weigh and decide the facts. An accused has a right of appeal to the Court of Appeal and, generally, that is the forum for argument that something went wrong at trial.

[4] Nevertheless, I should not allow the verdict to stand if I conclude that would be wrong. It will be wrong if the verdict is so irreconcilable with another verdict that both cannot stand together.3 It will be wrong, otherwise, if on the evidence the verdict is unsafe.4

Is the jury’s verdict inconsistent?

[5] The Crown’s case was that on or about 28 September 2012, methamphetamine was manufactured at Wright Road, Matakana. The people named
in the indictment as culpable were Frank William Murray, Brett Campbell Bogue,

1      Count 17 in the indictment.
2      Crimes Act 1961, s 347(3).
3      B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [24].
4      R v Flyger [2001] 2 NZLR 721 (CA) at [15].

Mr Dobbyn and his brother, Mr Grant Dobbyn. The Wright Road address belonged to Mr Grant Dobbyn, and he lived there. There was an alternative count that Mr Grant Dobbyn knowingly permitted his premises to be used for the manufacture.5

[6] Mr Murray and Mr Dobbyn were found guilty of the manufacture. Mr Grant Dobbyn was acquitted on the count of manufacturing and the jury could not agree on the alternative count of permitting his premises to be used for manufacture. Mr Bogue was not an accused in the trial.

[7] Mr Bonnar QC, for Mr Dobbyn, submits that the jury could not properly acquit Mr Grant Dobbyn but convict Mr Dobbyn. Their cases were intertwined.

[8] The defence cases for both Mr Dobbyn…

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 Dobbyn

Details

AGLC: R v Dobbyn [2014] NZHC 2055
Case: [2014] NZHC 2055
Decision Date: 28 August 2014

CaseChat Overview and Summary

Anthony Charles Dobbyn sought discharge from a conviction of manufacturing methamphetamine on the basis that the jury's verdict was inconsistent with its verdict on his brother, Grant Dobbyn. The court was required to determine if the jury's verdict was inconsistent with the acquittal of Mr Grant Dobbyn and if the verdict was reasonably available to the jury on the evidence. The court found that the jury's verdict was not inconsistent with the acquittal of Mr Grant Dobbyn. The court found that the jury's verdict was reasonably available on the evidence, as the evidence consisted primarily of intercepted communications between the accused, which suggested that Mr Dobbyn was involved in the methamphetamine manufacturing operation. The court concluded that the application was dismissed, and the conviction would be entered at the callover scheduled for 9:00 am on 3 September 2014. A date for sentencing would be set.

Orders