R v Harrison - [2009] NZCA 162

IN THE COURT OF APPEAL OF NEW ZEALAND
CA778/2008
[2009] NZCA 162
THE QUEEN
v
JOHN MATIU HARRISON
Hearing:12 March 2009

Court:Glazebrook, Rodney Hansen and MacKenzie JJ
Counsel:P J Mooney for Appellant

G H Allan for Crown

Judgment:1 May 2009 at 3.00 pm

JUDGMENT OF THE COURT

A        Leave to appeal is granted.
B        The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
[1]       The appellant was convicted after trial before Judge Roberts and a jury in the District Court at New Plymouth in September 2008 on a count of attempted kidnapping. He appeals against conviction and sentence.
[2]       The Crown case was that the appellant stopped his car opposite a bus shelter where three young children, aged 5, 7 and 8, were awaiting their school bus. The Crown case was that the appellant left his vehicle and approached the children; that he took hold of the youngest child E by the arm; that he and the other children, B and G, resisted, and that the appellant returned to his car and drove off. The defence case was that if anything happened it was not the appellant who was involved. He admitted stopping to roll himself a cigarette, but said that he never left his car.
[3]       Four grounds were initially advanced in support of the appeal against conviction:
(a)The Judge failed to give an adequate direction to the jury as to the time of kidnapping and did not make reference to conflict in the evidence;
(b)There was insufficient evidence as to the identification of the offender;
(c)The Judge was wrong not to allow cross-examination of one of the children as to her inability to identify the appellant from a photo montage; and
(d)The Judge failed to put the appellant’s case to the jury adequately.

The third of those grounds is no longer pursued.
The direction as to the elements of the offence
[4]       Mr Mooney, for the appellant, submits that there were significant differences within the evidence of the three children, and that the Judge should have drawn the jury’s attention to those differences, because, in counsel’s submission, the view that what occurred amounted to no more than an assault was open on the evidence. Counsel also submits that the Judge failed to give an adequate direction with respect to the elements of the crime of kidnapping. Counsel submits that the Judge focussed the jury on the issue of whether the accused was involved, and that in approaching the matter in that way the Judge deflected the jury’s attention from what may be a more fundamental issue: was there sufficient evidence of an actual alleged kidnapping.
[5]       We have summarised counsel’s submissions in the terms in which they were framed. We observe, however, that what was alleged was not a kidnapping, but an attempted kidnapping.
[6]       The essential evidence as the actions of the person who approached the children was that of the three children involved. Their evidence was given by evidential video interview, supplemented,…

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 Harrison

Details

AGLC: R v Harrison [2009] NZCA 162
Case: [2009] NZCA 162
Decision Date: 1 May 2009

CaseChat Overview and Summary

In the case of R v Harrison, the appellant was convicted in the District Court at New Plymouth of attempted kidnapping. The conviction and sentence were appealed to the Court of Appeal of New Zealand. The court considered four grounds of appeal, including the adequacy of the direction to the jury regarding the elements of the offence, the sufficiency of evidence for identification, and the adequacy of the Judge's presentation of the defence case. The court found that the Judge had adequately directed the jury on the elements of attempted kidnapping, and that there was sufficient evidence to support the identification of the appellant as the offender. The court also found that the Judge's presentation of the defence case was sufficient. The appellant was sentenced to a term of two years imprisonment, which the court found to be appropriate given the circumstances of the case.

The court dismissed the appeal against conviction and sentence. The appellant's conviction and sentence were upheld. The court found that the Judge had properly considered the circumstances of the case, including the vulnerability of the victim and the need for deterrence, in imposing the sentence. The court also noted that the risks involved in home detention and the effect on the victims if the appellant were released supported the Judge's decision to impose imprisonment. The court found that the sentence imposed was not manifestly excessive.

Orders