R v Ericson - [2007] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 356/05
[2007] NZCA 18
THE QUEEN
v
JOHN FREDERICK ERICSON
Hearing:15 February 2007

Court:Robertson, Ronald Young and Venning JJ
Counsel:N Levy for Applicant

A M Powell for Crown

Judgment:21 February 2007 at 3 pm

JUDGMENT OF THE COURT

APPLICATION FOR SPECIAL LEAVE TO APPEAL DISMISSED.
REASONS OF THE COURT

(Given by Ronald Young J)
[1]       This is an application for special leave to appeal Mr Ericson’s conviction for the murder of his wife on 19 April 2000 following his guilty plea. The application was filed on 22 September 2005. It is based on Mr Ericson’s claim that his decision to plead guilty was made when he wrongly believed he had no choice about his plea.
[2]       The applicant, his counsel at the time of conviction Mr P H Hall, and then Crown counsel Ms K B F Hastie, have filed affidavits. Mr Hall and Mr Ericson gave evidence before us.
Background facts
[3]       The Crown alleged that on 31 July 1999 the applicant struck his sleeping wife on the head with a tomahawk causing her death. The applicant, in a statement to the police, admitted killing her. He was arrested and charged with murder. The applicant was initially remanded to Sunnyside Hospital in Christchurch for a report pursuant to s 121 of the Criminal Justice Act 1985. On 8 November 1999 he was committed for trial at the High Court at Blenheim with the trial due to commence on 7 February 2000. That trial date was adjourned at the request of counsel for the applicant with a further tentative trial date set for 8 May. On 19 April 2000, at the applicant’s request, he was arraigned and pleaded guilty to murder. The Crown did not seek a minimum non-parole period and he was accordingly sentenced to life imprisonment by Panckhurst J.
[4]       This application for special leave to appeal is necessary because time to appeal as of right expired on 17 May 2000.
Special leave
[5]       Section 388(2) of the Crimes Act provides:
388     Time for appealing
. . .
(2)The time within which notice of appeal or notice of application for leave to appeal may be given may be extended at any time by the Court of Appeal.

[6] This Court discussed the proper approach to such applications in R v Knight [1998] 1 NZLR 583 at 587 when the Court said:
Section 388 does not specify the principles or criteria to be applied in determining applications for extension of time for appeal. The time “may be extended” and “at any time” by the Court. But the discretion is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration…

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 Ericson

Details

AGLC: R v Ericson [2007] NZCA 18
Case: [2007] NZCA 18
Decision Date: 21 February 2007

CaseChat Overview and Summary

In this case, John Frederick Ericson applied for special leave to appeal his conviction for the murder of his wife, which he pleaded guilty to on 19 April 2000. The application was filed on 22 September 2005, and it was based on Ericson's claim that his decision to plead guilty was made when he wrongly believed he had no choice about his plea. The applicant, his counsel at the time of conviction Mr P H Hall, and then Crown counsel Ms K B F Hastie, filed affidavits. Mr Hall and Mr Ericson gave evidence before the court.

The court had to decide if Ericson's plea was made voluntarily and knowingly, and if the application for special leave should be granted despite the delay in filing the appeal and the merits of any potential defence. The court examined the facts of the case and the chronology of events to determine if Ericson's plea was properly entered on 19 April 2000. The court found that Ericson's plea was knowingly and properly entered, as his counsel, Mr Hall, had taken every possible step to ascertain whether any defence could be mounted based on lack of mens rea, including insanity or automatism.

The court concluded that Ericson was not forced to plead guilty or placed under any improper duress. There was no factual basis upon which the application for special leave could be made given the way it was framed by counsel. The court dismissed the application for special leave to appeal Ericson's conviction.

Orders