R v Morgan CA261/04 - [2004] NZCA 353

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/04

THE QUEEN

v

THOMAS WIREMU MORGAN

Hearing: 12 October 2004 Coram: Anderson P
Baragwanath J Gendall J

Appearances: C M Clews for Appellant
D J Colbert for Crown Judgment: 18 October 2004

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]Broom at p 223 of Legal Maxims (10^th ed) states
The maxim nemo bis vexari pro una et eadem causa expresses a great fundamental rule of our criminal law, which forbids that a man should be put in jeopardy twice for the same offence.

Broom gives as a particular example (1824) 2 Hawkins Pleas of the Crown 524 citing earlier authority

It seems to be generally agreed… that wherever a man is attainted of felony… by judgment on a verdict… he may plead such attainder to an subsequent indictment… for the same or any other felony.

R V MORGAN CA CA261/04 [18 October 2004]

The maxim underlies the specific rules against double jeopardy expressed in ss 10(4) and 358-9 of the Crimes Act 1961, s 26(2) of the New Zealand Bill of Rights Act 1990 and article 14.7 of the International Covenant on Civil and Political Rights. It determines this appeal.

[2] The appellant was indicted in the District Court at Hamilton on three counts of offending on 2 March 2003

a)with intent to cause grievous bodily harm the complainant wounded him;

b)assaulted the complainant and in assaulting him used a knife as a weapon;

c)without lawful authority or reasonable excuse had with him in a public place, namely Victoria Street, an offensive weapon, namely a knife.

[3] Mr Clews applied on the morning of the trial to have counts 1 and 2 treated as alternative. No issue arises concerning the third count.

[4] Counsel then appearing for the Crown submitted that the two counts reflected different aspects of criminality: count 1 the wounding with intent and count 2 the use of the weapon. Judge Clark ruled that although relating to the same incident the counts reflected different aspects of criminality and allowed all three counts to go to the jury. The appellant was convicted on all counts on 3 June 2004. On count 1 he was sentenced on 1 July 2004 to three and a half years imprisonment; on count 2 to two years imprisonment; and on count 3 to one year’s imprisonment, all terms to be served concurrently.

[5] The charges resulted from a stabbing of the complainant by the appellant with a single blow. While there is evidence of further cuts to the complainant’s back the Judge summed up to the jury on the basis that counts 1 and 2 both related to the single stabbing. As to the first, she directed that the two elements to be established

by the Crown were a wounding, being an injury involving a breaking of the skin and intention to cause grievous bodily harm to the complainant. As to the second she directed

Now that charge relates to the same…

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 Morgan CA261/04

Details

AGLC: R v Morgan CA261/04 [2004] NZCA 353
Case: [2004] NZCA 353
Decision Date: 18 October 2004

CaseChat Overview and Summary

In the appeal case of R v Morgan, the appellant, Thomas Wiremu Morgan, was convicted on three counts of offending, arising from a single incident of stabbing a complainant. Count 1 involved wounding the complainant with intent to cause grievous bodily harm, Count 2 involved assault with a weapon, and Count 3 involved possession of an offensive weapon in a public place. The appellant's counsel applied to treat Counts 1 and 2 as alternative charges, but this was not accepted by the trial Judge. The appellant was convicted on all counts and sentenced to a total of six and a half years imprisonment, with all terms to be served concurrently.

The legal issue before the Court was whether Count 2 should have been left to the jury as an independent charge, or whether it should have been treated as an alternative to Count 1. The Court considered the principle of double jeopardy, which prohibits an individual from being punished twice for the same offence. The Court found that Count 2 was a less serious form of Count 1 and that allowing it to stand as an independent charge would infringe the principle of double jeopardy.

The Court found that the single act of stabbing the complainant constituted the factual basis for both Counts 1 and 2, and that Count 2 was simply a less serious form of Count 1. The Court held that the principle of double jeopardy was infringed by leaving Count 2 as an independent charge. The Court also noted that there was no policy or other reason to justify the retention of Count 2 as an independent rather than an alternative count.

The Court allowed the appeal and set aside the conviction on Count 2 and the two-year sentence imposed upon it. The convictions on Counts 1 and 3, and their concurrent sentences, will stand. The case highlights the importance of adhering to the principle of double jeopardy in criminal proceedings, and the need to carefully consider the nature of charges in order to avoid potential infringements of this principle.

Orders