Table of Contents
Para No.
Introduction   [1]
Background  [4]
Mr McFarland’s appeal: CA385/06
Conviction  [15]
           (a)       Representation issues  [16]
(b)       Fair trial issues  [31]
(i)What role did amicus perform?  [48]
(ii)Inadequate preparation and effect on appellant                  [61]
(iii)Errors by amicus  [64]
(iv)Conclusion  [74]

(c)Errors of law  [75]
(i)Television coverage  [77]
(ii)Standard of proof  [80]
(iii)Joint enterprise  [92]

(iv) Gang associations and comments of counsel for Crown [97]
(v) Conclusion [104]

Sentence  [105]
Mr Brooks’ appeal: CA455/06  [107]
Conviction  [108]
Sentence  [119]
Result   [120]

Introduction
[1]       The appellants were jointly charged with unlawfully detaining the complainant without his consent with intent to cause him to be confined contrary to s 209(1)(a) of the Crimes Act 1961 (kidnapping) and with maiming him with intent to cause grievous bodily harm contrary to s 188(1). They were tried before Judge Sharp and a jury. At the conclusion of the complainant’s evidence in chief, counsel for Mr Brooks applied for a discharge under s 347 of the Crimes Act in respect of the kidnapping charge. The Judge allowed the application and discharged both appellants on that charge.
[2]       The trial continued on the maiming charge. At the close of the Crown case Mr Brooks entered a plea of guilty. Mr McFarland maintained his defence but was convicted by the jury. On sentencing, the Judge adopted a starting point of eight years imprisonment for both appellants. As there were no mitigating factors in Mr McFarland’s case, the Judge imposed an end sentence of eight years, with a minimum period of imprisonment of four years. The Judge gave Mr Brooks a discount of 20 per cent to reflect his guilty plea, his remorse and his “complete acceptance of responsibility”, which led to an end sentence of six years eight months imprisonment. The Judge imposed a minimum term of three years four months imprisonment on Mr Brooks.
[3]       Both appellants appeal against conviction and sentence. Mr Brooks seeks leave to extend the time for filing his appeal. The Crown does not oppose that application, and we grant it.
Background
[4]       The complainant socialised with members of the Headhunters gang, although he was not himself a member or a prospective member (prospect) of the gang. His flatmate, Mr Johnson, was a prospect. The appellant, Mr McFarland, is a senior member of the gang and the other appellant, Mr Brooks, is (or was) a prospect.
[5]       The complainant gave evidence as follows. He said that he witnessed a person named Jason Barnes being beaten…

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 McFarland

Details

AGLC: R v McFarland [2007] NZCA 449
Case: [2007] NZCA 449
Decision Date: 18 October 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeals of Terrence Austin McFarland and Michael Robert Brooks against their convictions and sentences. Both appellants were jointly charged with kidnapping and maiming a complainant. Brooks pleaded guilty to the maiming charge, while McFarland maintained his defence and was convicted by a jury. The Court considered McFarland's appeal under three headings: representation issues, fair trial issues, and errors of law. The Court found that McFarland had deliberately chosen to represent himself, despite being advised of his right to counsel and the availability of legal aid. The appointment of an amicus did not amount to a denial of his right to a fair trial, as the role of the amicus was left to the discretion of McFarland. The Court also found that there were no errors of law that would result in a miscarriage of justice. Regarding Brooks' appeal, the Court found that his trial counsel had acted properly and that there was no miscarriage of justice in his conviction or sentence. The Court dismissed both appeals.

Orders