R v Miller CA26/06 - [2006] NZCA 418

ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA26/06

THE QUEEN

v

KENNETH MILLER

Hearing: 22 May 2006
Court: Chambers, Rodney Hansen and Priestley JJ Counsel: J Haigh QC for Appellant
J M Jelas for Crown

Judgment: 16 June 2006

JUDGMENT OF THE COURT

A The appeal is allowed.

B The conviction is quashed. C A new trial is directed.
DOrder prohibiting publication in news media or on internet or other publicly accessible database until final disposition of new trial.
Publication in law report or law digest permitted.

R V MILLER CA CA26/06 16 June 2006

REASONS

(Given by Priestley J)

Introduction

[1] In November 2005 the appellant was tried in the Auckland District Court facing a charge laid under s 189(2) of the Crimes Act 1961 of injuring with intent to injure. The jury trial was presided over by Judge Hobbs.

[2] On 10 November 2005 the jury returned a guilty verdict which led to the appellant’s conviction. He was subsequently sentenced to 100 hours community work and ordered to pay $2,000 reparation.

[3] The appellant challenges his conviction on appeal. Some points of appeal were abandoned by his counsel. Pursued before this Court were:

a) The failure of the trial Judge to allow the defence of self-defence to be put to the jury;

b) The Judge’s summing up to the jury was said to be unfairly balanced against the appellant.

Background

[4] In January 2005, the appellant employed four bricklayers as casual labourers to assist with a house building project he was carrying out in Albany. One of these bricklayers, Mr Moore, was the alleged victim.

[5] The task of the four employees was to move bricks, stacked on elevated ground above the house, by carrying them down a temporary wooden staircase and placing them closer to the house.

[6] The Crown case was that on 12 January 2005 an argument developed between the appellant and the bricklayers over the safety of the wooden steps. It was

alleged the appellant used insulting words about the physique or weight of one of the bricklayers; that the appellant and the victim, Mr Moore, grabbed hold of each other’s clothing; that the appellant ordered the bricklayers off the property; and that shortly afterwards the appellant struck the victim on the back of his head with a piece of 2” x 4” timber, approximately 350 mm long, which had been lying on the ground.

[7] It is clear from the evidence that this alleged assault precipitated a brawl during the course of which the appellant was beaten up.

[8] The victim, his brother, and one of the remaining two bricklayers gave evidence at trial for the Crown. The bricklayer who, in the ensuing brawl had been the principal assailant of the appellant, did not give evidence and was not brought from Australia for that…

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 Miller CA26/06

Details

AGLC: R v Miller CA26/06 [2006] NZCA 418
Case: [2006] NZCA 418
Decision Date: 16 June 2006

CaseChat Overview and Summary

In this case, the appellant was convicted in the Auckland District Court of injuring with intent to injure, under s 189(2) of the Crimes Act 1961. The appellant appealed his conviction, arguing that the trial judge had erred by not allowing the defence of self-defence to be put to the jury and that the judge’s summing up was unfairly balanced against him. The appeal was heard in the New Zealand Court of Appeal, which found that the trial judge had erred in not allowing the defence of self-defence to go to the jury. The Court of Appeal held that there was a credible or plausible narrative which might have led the jury to entertain the reasonable possibility of self-defence, and that the judge should have invited submissions from counsel and conducted a measured scrutiny of the issue before excluding the defence. The Court of Appeal also found that the judge’s summing up was unfairly balanced against the appellant, although this was not necessary to decide the appeal. The Court of Appeal quashed the conviction and ordered a new trial. The Court also made an order prohibiting publication in the news media or on the internet or other publicly accessible databases until final disposition of the new trial, but allowed publication in a law report or law digest.

Orders