R v Johnson - [2007] NZCA 9

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA436/06 [2007] NZCA 9

THE QUEEN

v

KAREN LOUISE JOHNSON

Hearing: 12 February 2007
Court: Robertson, Ronald Young and Venning JJ Counsel: D D Vincent for Appellant
M F Laracy for Crown

Judgment: 16 February 2007 at 3 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BOrder prohibiting publication of the judgment in the proceedings (including the result) in news media or on the internet or other publicly accessible database until final disposition of trial. Publication in law
report or law digest permitted.

R V JOHNSON CA CA436/06 16 February 2007

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The appellant is for trial in the District Court at Wellington on a charge of injuring her partner with intent to injure. In a pre-trial ruling on 13 November 2006
Judge Mackintosh ruled admissible two statements made by the appellant to the police on the night of the incident. The appellant appeals against the decision in relation to the second of the statements.

Background

[2] At 7.16 p.m. on 5 March 2006 Constables Smith and Toseland went to a property at Stokes Valley in response to a call to the police made by the complainant. Constable Smith spoke briefly to the complainant who was in the garage. The complainant said he had been stabbed in the thigh by the appellant. Then at
7.20 p.m. the constable went to the door of the property. He asked the appellant to come out on to the deck. She did so. Constable Smith took the appellant’s details and advised her of her rights pursuant to the New Zealand Bill of Rights Act 1990 (NZBOR). Constable Smith recorded that he gave that advice at 7.22 p.m. While Constable Smith was recording that time in his notebook the appellant said to him:

I stabbed him, alright. He deserved every bit of it. He’s a bully. You can write that down.

[3] At that point Constable Smith gave the appellant a short caution. He told her that she was not obliged to say anything unless she wished to do so and that anything she did say would be taken down in writing and could be used in evidence.

[4] The appellant was asked to return to the Lower Hutt Police Station. She agreed. The appellant then spent some time locating shoes for the trip as she was

barefoot. At 7.32 p.m. the police officers and the appellant left for the police station. Before leaving the property the appellant was handcuffed.

[5] During the course of the journey to the police station the appellant, who was sitting in the back of the car with Constable Toseland, made a number of statements including:

I stabbed him, ooooh. He had it coming, okay.

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 Johnson

Details

AGLC: R v Johnson [2007] NZCA 9
Case: [2007] NZCA 9
Decision Date: 16 February 2007

CaseChat Overview and Summary

The case of R v Johnson was heard in the Court of Appeal of New Zealand. The appellant, Karen Louise Johnson, is appealing against a decision of Judge Mackintosh who ruled that certain statements made to the police were admissible as evidence in her trial for injuring her partner with intent to injure. The appellant challenges the admissibility of the statements recorded by Constable Toseland during the journey to the police station and the subsequent video interview. The primary legal issue was whether the appellant's rights under the New Zealand Bill of Rights Act 1990 (NZBOR) were properly cautioned and whether she effectively waived her right to silence. The court examined whether the initial caution given by Constable Smith remained operative when the appellant was handcuffed and transported to the police station.

The Court of Appeal found that the earlier advice given by Constable Smith to the appellant remained operative despite her being handcuffed and placed in the police car. The court reasoned that the handcuffing was part of the same episode, occurring only 10 minutes after the initial caution, and thus did not necessitate a repetition of the rights. Additionally, the court determined that the appellant had a fair understanding and appreciation of the seriousness of her situation and voluntarily waived her right to silence, rendering her waiver valid. The appellant's statements in the police car were considered volunteered and not elicited by the police, thus admissible. The appeal was dismissed, and the statements were deemed admissible evidence in the trial.

Orders