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R v Hartley

R v Hartley

Case [2007] NZCA 31 1 March 2007

Communication of Withdrawal

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA154/06
[2007] NZCA 31
THE QUEEN
v
RIO JADE HARTLEY
Hearing:15 November 2006

Court:William Young P, Robertson and Ellen France JJ
Counsel:J G Rowan QC and E J Forster for Appellant

M D Downs and E V Lamont-Messer for Crown

Judgment:1 March 2007 at 9.30 am

JUDGMENT OF THE COURT

AThe conviction for manslaughter is quashed and in its place a conviction for common assault is entered. The appeals against conviction in relation to the other counts are dismissed.
BThe sentence of 11 years imprisonment with a minimum period of seven years is quashed and a sentence of nine years imprisonment with a minimum period of five years is substituted. A sentence of nine months imprisonment is imposed on the common assault charge. All other sentences imposed in the High Court are unchanged. All sentences are to be served concurrently.

C The answer to the case stated is no.
REASONS OF THE COURT
(Given by Ellen France J)

INTRODUCTION
[1]       Late in the evening of 5 November 2004 and in the early hours of the morning of 6 November 2004, the appellant and three other young men were driving around Wanganui. Over a three to four hour period on three separate occasions, the four men set upon and assaulted a number of other men. In the course of the second of the assaults, one of the other men in the group, Rawiri Hatata, pulled out a knife and stabbed the victim, Jeremy Frew, who later died.
[2]       The appellant was found guilty after trial as a party under s 66(1) of the Crimes Act 1961 of the manslaughter of Mr Frew. He appeals against his conviction. In addition, a case was stated under s 380 of the Crimes Act having been reserved during the trial by Miller J.
Factual background
[3]       The first incident by the group including the appellant took place around 11 pm on 5 November and involved kicking and punching two victims. In the second episode, the appellant approached the victim’s car and then punched him through the window. Mr Hatata then went up to the window. He pushed the appellant away, then pulled out a knife and stabbed the victim. In the third altercation, another man (Brian Kerrigan) was attacked and suffered a knife wound to his back.
[4]       In the course of the police investigation, all the accused, apart from the appellant, made lengthy video interviews. In the course of those interviews, various references were made to the appellant. The references included attributing a possible motive to the appellant for his attack on the third victim.
[5]       Before trial, the appellant sought either severance or editing of references to him from the video interviews of his co-accused. In a decision delivered on 4 November 2005, Gendall J declined the application for severance and for editing.
[6]       A further application for severance and/or editing was made during…

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 Hartley

Details

AGLC: R v Hartley [2007] NZCA 31
Case: [2007] NZCA 31
Decision Date: 1 March 2007

CaseChat Overview and Summary

In R v Hartley, the appellant challenged his conviction for manslaughter and the adequacy of the sentence imposed. The Court of Appeal of New Zealand considered two main issues: (a) whether the Crown needed to show that the appellant knew of the presence of a weapon, and (b) whether the refusal to grant severance and/or to edit references to the appellant out of the co-offenders' statements gave rise to a miscarriage of justice. The Court found that the Crown was not required to prove that the appellant knew of the presence of a weapon, but in this case, the appellant's involvement in the assault was of a different type than the act that actually caused death. The Court quashed the conviction for manslaughter and substituted a conviction for common assault. The sentence of 11 years imprisonment with a minimum period of seven years was quashed and a sentence of nine years imprisonment with a minimum period of five years was substituted. A sentence of nine months imprisonment was imposed on the common assault charge. All other sentences imposed in the High Court were unchanged, and all sentences were to be served concurrently.

Orders