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R v Peters

R v Peters

Case [2007] NZCA 180 7 May 2007

Criminal Liability

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA276/06
CA364/06
[2007] NZCA 180
THE QUEEN
v
ANTHONY KEVIN PETERS
KYLIE DIANE SOUTHON
Hearing:7 March 2007

Court:William Young P, Robertson and Wilson JJ
Counsel:T W Fournier for Appellant Mr Peters

P H B Hall and D I Brown for Appellant Ms Southon
B M Stanaway for Crown

Judgment:7 May 2007 at 11 am

JUDGMENT OF THE COURT

A MR PETERS’ APPEAL AGAINST CONVICTION IS DISMISSED.
B Ms Southon’s appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Table of Contents

Para No

INTRODUCTION  [1]
ISSUES  [3]
FACTUAL BACKGROUND  [6]
SEVERANCE  [11]
MR PETERS’ APPEAL  [14]
MISS SOUTHON’S APPEAL  [34]
   (I) THE TWO POSSIBILITIES AS TO GUILT  [34]
   (II) VERDICTS AGAINST THE WEIGHT OF EVIDENCE  [47]
        (A) THE PRECONCEIVED PLAN  [48]
        (B) THE ADMISSIBILITY OF MR HICKS’ EVIDENCE  [62]
   (III) THE ORDER OF CROSS-EXAMINATION  [72]
   (IV) CROSS-EXAMINATION  [77]
   (V)   MS MYERS’ PREVIOUS STATEMENT  [84]
CONCLUSION ON CONVICTION  [89]
APPEAL AGAINST SENTENCE  [91]
   (I) LENGTH OF SENTENCE  [91]
   (II) MINIMUM NON-PAROLE PERIOD  [94]
RESULT  [101]

Introduction
[1]       Mr Peters and Ms Southon were jointly charged with the murder of Ricky Burnard. At trial each was found guilty of manslaughter. Mr Peters was sentenced to ten years’ imprisonment with a minimum non-parole period of five years. Ms Southon was sentenced to seven years’ imprisonment with a minimum non parole period of three and a half years.
[2]       They both appeal against conviction and Ms Southon appeals against her sentence.
Issues
[3]       Mr Peters appeals on the basis that there was a substantial miscarriage of justice because there was a joint trial.
[4]       Ms Southon’s conviction appeal is advanced on the basis that:
(a)       the jury’s verdict was unsupportable on the evidence;
(b)she was prejudiced by late disclosure of pivotal evidence;
(c)various trial rulings were unfair or wrong in law; and
(d)the Judge failed to direct properly on the status of out of court statements made by Mr Peters concerning her involvement.

[5]       Ms Southon’s appeal against sentence is on the basis that the finite sentence was manifestly excessive and the imposition of a minimum non-parole period was an inappropriate exercise of discretion.
Factual background
[6]       Ms Southon had known Mr Burnard for about ten years during which time he had frequently threatened and assaulted her. In March/April 2005, Mr Burnard had attacked Ms Southon with a baseball bat requiring her admission to hospital because of a collapsed lung. As a result of a further attack on 22 April 2005, the police were called to Ms Southon's address, but she would not lay a complaint.
[7]       Mr Peters was also acquainted with Mr Burnard. Mr Peters had lived at Mr Burnard’s house for a period and it was suggested that he had assisted Mr Burnard in a methamphetamine distribution ring. The two men had a falling out in April 2005 and Mr Burnard pursued Mr Peters for payment of an alleged debt.
[8]       In the weekend prior to…

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 Peters

Details

AGLC: R v Peters [2007] NZCA 180
Case: [2007] NZCA 180
Decision Date: 7 May 2007

CaseChat Overview and Summary

In the case of R v Peters, both Mr Peters and Ms Southon were found guilty of the manslaughter of Ricky Burnard and appealed against their convictions and sentences. The primary issues in Mr Peters’ appeal were whether there was a substantial miscarriage of justice due to the joint trial and if the trial judge’s directions were sufficient to mitigate the risk of prejudice. The Court held that the trial judge had given appropriate and sufficient directions to the jury, and dismissed the appeal. The central issues in Ms Southon’s appeal were whether her conviction was against the weight of evidence, if there was a failure to properly direct the jury, if she was prejudiced by late disclosure of evidence, and if the trial judge made any errors in the order of cross-examination. The Court found that there was an evidential base upon which the jury was entitled to conclude Ms Southon was criminally implicated in the homicide, and dismissed the appeal against conviction. As to the sentence, the Court found that the sentence imposed was within the sentencing judge’s discretion and dismissed the appeal against sentence.

Orders