Introduction [1] Background [4] Issues on appeal [10] Verdict unreasonable and against the weight of evidence [13] Geomorphology [16] Mineralogical and geochemical evidence [17]

Fresh evidence [26] The Brown Rock [31] MS3 [38] Mining by others on the Cascade Plateau [44]
M-section steel [51] The Sausage [54] MS1 and 2 [58] Source of upland snowflake – scientific evidence [68] Additional evidence not disclosed by the Crown [80]

(i) Photographs [82]

(ii) Mr Bradford [85]

(iii) Brown paint [88]

Conclusion in relation to fresh evidence ground  [91] Unfair conduct by Crown and Police  [99] Inadmissible evidence  [100]
Wealthy man allegation  [109] Unfounded attack on Professor Cooper  [114] Reversal of onus  [119] Exhortation to use common sense  [121] Interception warrant  [123]
Misdirection or non-direction  [133] Burden of proof  [134] Expert evidence  [136] Use of intercepted conversations  [165]

Decision [168]
Postscript – scientific evidence [169]

Introduction

[1] Following a jury trial before Judge Macdonald the appellant was convicted

on two representative counts of stealing pounamu (or greenstone) that was the property of Te Runanga o Ngai Tahu.

[2] Count one covered the period 29 October 1997 (the date on which the

Ngai Tahu (Pounamu Vesting) Act 1997 (the Act) came into force) until

30 September 2003 and count two the period 1 October 2003 until 4 May 2004. (Two counts were required as a result of amendments to the Crimes Act 1961, which reorganised the overall scheme of the theft provisions from 1 October 2003.)

[3] The appellant was sentenced to 18 months imprisonment, with leave to apply

for home detention, and was ordered to pay reparation of $300,000. He appeals against conviction.

Background

[4] The appellant was found in possession of over 10 tonnes of what was referred

to at trial as “upland snowflake”, a high quality pounamu characterised by white patches resembling snowflakes. The pounamu was located in May 2004 at the appellant’s farm at Makarora, at the head of Lake Wanaka. It was placed around the farm in flax bushes and under macrocarpa trees. The Crown alleged that he had mined this pounamu from the Cascade Plateau in South Westland between
29 October 1997 and 4 May 2004. If so, by virtue of the Act, the pounamu was the property of Ngai Tahu. The appellant said that the pounamu had come not from the Cascade Plateau but from Big Bay where he had a mining licence.

[5] No witness gave evidence that the appellant had been observed…

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 Hutton

Details

AGLC: R v Hutton [2008] NZCA 126
Case: [2008] NZCA 126
Decision Date: 19 May 2008

CaseChat Overview and Summary

Harvey Andrew Hutton appeals against his conviction for theft of pounamu (or greenstone) that was the property of Te Runanga o Ngai Tahu. The pounamu was found on his farm in Makarora, South Westland. The Crown alleged that he had mined the pounamu from the Cascade Plateau in South Westland between 29 October 1997 and 4 May 2004. Hutton said that the pounamu had come from Big Bay, where he had a mining licence. The appeal raises a number of issues, including whether the jury's verdict was unreasonable, whether there is fresh evidence, whether there was unfair conduct by the Crown and the Police, and whether the trial Judge failed to direct the jury adequately. The Court of Appeal found that the appeal should be dismissed. The jury's verdict was not unreasonable, and there was no fresh evidence. The trial Judge gave proper directions to the jury, and there was no unfair conduct by the Crown or the Police.

Orders