R v McKenzie Ca7/03 - [2003] NZCA 385

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RETRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 7/03

THE QUEEN

v

PAUL DESMOND MCKENZIE

Hearing: 26 May 2003

Coram:McGrath J Doogue J Panckhurst J

Appearances: D Bunce for Appellant
M N Zarifeh and A M Toohey for Crown Judgment: 12 June 2003

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1] Two grounds are raised in support of this appeal against conviction for aggravated robbery. They are that the trial Judge erred in declining an application to discharge the jury once evidence emerged that the appellant had served time in prison. Secondly that the Judge was wrong to allow cross-examination of the appellant by the prosecutor with reference to a statement made to the police by a co- accused. Thereby, it was argued, the principle that out of court statements are only

R V PAUL DESMOND MCKENZIE CA CA 7/03 [12 June 2003]

evidence against their maker was infringed. This issue became the major ground of appeal and it is convenient to consider it first.

Background

[2] The aggravated robbery occurred on 28 April 2002. Three men including the appellant and Michael O’Connor went to the home of the complainant who was a cannabis dealer. The Crown case was that the three men intended to steal cannabis, by force if necessary.

[3] Upon arrival there was a confrontation between the appellant and the complainant. Blows were struck and the appellant threatened the complainant with a cut-throat razor which was in his possession. At a point when all three intruders were endeavouring to strip cannabis leaves from mature plants in a growing room in the house, they were secured in that room by the complainant. He then armed himself with a shotgun. The intruders endeavoured to escape from the growing room by breaking out through a boarded-up window. Meanwhile the complainant positioned himself outside the window. A further struggle ensued between the appellant and the complainant through the window, during which the shotgun was discharged. The appellant sustained arm injuries. The three intruders were then able to decamp via the window taking some cannabis and other items with them.

[4] The appellant’s co-offender Michael O’Connor made a statement to the police. He said that only the appellant knew the complainant prior to the event. They did not have money to pay for cannabis, but wished to obtain some in order to procure other drugs. At the house the appellant endeavoured to subdue and control the complainant, while the co-offenders stripped the growing plants of cannabis and packed it into bags. In the process and at a point when the appellant entered the growing room, the three intruders were locked in.

[5] By contrast the appellant denied both at interview and in giving evidence at the trial that robbery was ever contemplated. The intention was rather to purchase cannabis from the complainant. An argument developed. The complainant was upset that the…

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 McKenzie Ca7/03

Details

AGLC: R v McKenzie Ca7/03 [2003] NZCA 385
Case: [2003] NZCA 385
Decision Date: 12 June 2003

CaseChat Overview and Summary

This appeal concerns the conviction of Paul Desmond McKenzie for aggravated robbery. The appellant argued that the trial judge erred in two significant ways: first, by not discharging the jury upon learning that the appellant had served time in prison, and second, by allowing the prosecutor to cross-examine the appellant with reference to a statement made to the police by a co-accused, Michael O'Connor. This second issue formed the primary focus of the appeal. The trial judge permitted the prosecutor to cross-examine the appellant using information from O'Connor's statement, despite the fact that such statements are not evidence against the appellant. The appellant argued that this practice infringed upon the fundamental principle that out of court statements are only evidence against their maker.

The Court of Appeal considered the proper limits of cross-examination in light of various authorities. The Court found that while cross-examination upon the content of a co-accused's statement may be permissible, questions must not directly reference the source of the information. The Court held that the prosecutor's cross-examination was irregular as it directly referenced O'Connor's statement, thereby unfairly compromising the appellant's credibility. The Court also found that the trial judge's direction to the jury, while clear, could not overcome the prejudice caused by the improper cross-examination. As a result, the Court concluded that there was a risk that the appellant did not receive a fair trial, and ordered a retrial.

The Court did not find the reference to the appellant's past incarceration to be significant enough to merit a new trial on its own, but considered it alongside the cross-examination issue. The trial judge had promptly directed the jury to disregard the comment, and the Court found that the irregularity was minor in comparison to the cross-examination issue. However, it was still an irregularity that contributed to the overall unfairness of the trial.

Orders