R v Pearce - [2007] NZCA 40

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT 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

CA453/06 [2007] NZCA 40

THE QUEEN

v

RICHARD STEVEN PEARCE

Hearing: 21 February 2007
Court: O’Regan, Chisholm and Rodney Hansen JJ Counsel: P V Paino for Appellant
G J Burston and D R La Hood for Crown

Judgment: 2 March 2007 at 4.00 pm

JUDGMENT OF THE COURT

ALeave to appeal is granted and the appeal is allowed. Mr Edgarton’s statement is not admissible against the appellant.

B Order prohibiting publication of the judgment in news media or on
Internet or other publicly accessible database until final disposition of the trial. Publication in Law Report or Law Digest permitted.

R V RICHARD STEVEN PEARCE CA CA453/06 2 March 2007

REASONS OF THE COURT

(Given by Chisholm J)

[1] During the early hours of 3 September 2005 a woman died in a fire at an Upper Hutt residence. It is alleged by the Crown that the house fire was caused by Molotov cocktails thrown into the house by the appellant and one of his co-accused, Nicholas Edgarton. While the appellant and Mr Edgarton have pleaded guilty to arson, they have both denied a charge of murder laid pursuant to s 167(d) of the Crimes Act 1961.

[2] After most of the Crown’s evidence had been presented to a jury late last year it became necessary for Ronald Young J to discharge the jury. The new trial is to commence next week. During the aborted trial an issue arose about the extent to which observations made by Mr Edgarton in his video interview with the police could be used in the Crown case against Mr Pearce, and after the trial was aborted the Crown sought a ruling pursuant to s 344A of the Act.

[3] In a reserved judgment delivered on 23 November 2006 Ronald Young J ruled that part of the out of Court statement made by Mr Edgarton could be used by the Crown against the appellant. The appellant seeks leave to appeal against that ruling on the broad basis that it is contrary to the rule that, subject to limited exceptions, an out of Court admission by one accused is not admissible against a co- accused.

Background

[4] The Crown alleges that Carol Clayton (who is jointly charged with the other two accused of murdering the deceased) was jealous of two women (neither of whom was the deceased) who lived at 50A Thackeray Street, Upper Hutt, and wanted to kill them. It is alleged that during the early hours of 3 September 2005
Mrs Clayton drove the other two accused to a location close to that property, that the appellant and Mr Edgarton then ran to the property and threw two Molotov cocktails through the front window of the house, following which they returned to the car and

were driven away…

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 Pearce

Details

AGLC: R v Pearce [2007] NZCA 40
Case: [2007] NZCA 40
Decision Date: 2 March 2007

CaseChat Overview and Summary

The Crown appeals against a ruling of Ronald Young J that part of an out of Court statement made by one of the co-accused, Nicholas Edgarton, could be used by the Crown against the appellant, Richard Pearce. The Crown seeks to use Mr Edgarton’s statement that “you could see the TV on” as part of its case against the appellant for the purpose of establishing that the appellant must also have been able to see that the television was on. Such evidence, if accepted by the jury would, of course, be relevant to the question of the appellant’s state of mind. The Court grants leave to appeal and allows the appeal. It holds that the statement is inadmissible against the appellant. The Court holds that the observations of this Court in R v Fenton and R v Manase do not justify admission of Mr Edgarton’s statement as part of the Crown case against the appellant. The Court also holds that there is no analogy between R v Hayter and the case before it.

Orders