R v Shaw

Case [2009] NZCA 232 5 June 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA626/2008
[2009] NZCA 232
THE QUEEN
v
FRANCIS MANEWHA SHAW
Hearing:21 April 2009

Court:Ellen France, Heath and Fogarty JJ
Counsel:G J King for Appellant

A Markham for Crown

Judgment:5 June 2009 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed. The conviction and the sentence of four years imprisonment are quashed.
BA retrial is ordered but may only proceed on the basis of secondary liability, arising out of the words spoken in the Linton prison yard.

REASONS
Ellen France J (dissenting)  [1]
Heath J  [55]
Fogarty J  [104]
ELLEN FRANCE J
Introduction
[1]       The appellant was convicted following a retrial on one charge of arson of the Rangiatea Church in Otaki. He was sentenced by Judge Garland, the trial Judge, to four years imprisonment. The retrial followed a successful appeal against conviction to this Court: CA159/05 22 November 2005.
[2]       The appellant appeals against his conviction on the basis there has been a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961. Three grounds are relied on. The first ground is that he was retried and convicted on a charge on which, in effect, he had been acquitted. The second ground is that the Crown should not have been permitted to include alternative allegations in a single charge in the indictment. The final ground is that the jury should have been directed on the need for unanimity as to the form of participation, that is, the need to be unanimous as to whether the appellant committed the offence as a principal or as a secondary party.
Factual background
[3]       The Rangiatea Maori Anglican Church, an historic building, was destroyed by fire in the early hours of Saturday 7 October 1995. Investigations showed that the fire had been deliberately lit but no arrests were made at the time.
[4]       The appellant was not arrested and charged until 2006. The Crown case at trial rested primarily on evidence of three admissions that he had made at different times over the period from 1995 to 2006. In separate conversations with, in turn, a Department of Justice official and two police constables, the appellant said he had burnt down the Church and had done so because of a feud between his tribe and the Church over historical land issues. On another occasion he was also overheard telling his sister that he had already burnt one church down and asking her whether she wanted him to do it again.
[5]       The appellant lived in Otaki at the relevant time and was seen in the township several hours after the fire.
[6]       There was no real dispute at trial that a person or persons deliberately set fire to the Church and that whoever did so had no lawful justification or excuse.
[7]       The appellant represented himself at trial. He was assisted by counsel acting as amicus curiae. He gave evidence in the course of which he acknowledged a sense of grievance in relation…

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 Shaw

Details

AGLC: R v Shaw [2009] NZCA 232
Case: [2009] NZCA 232
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the appeal of Francis Manewha Shaw, the appellant was convicted on one count of arson of the Rangiatea Church in Otaki, following a retrial. The conviction and the sentence of four years imprisonment were quashed, and a retrial was ordered. The grounds for appeal were that the appellant was retried and convicted on a charge on which he had effectively been acquitted, the Crown should not have been permitted to include alternative allegations in a single charge in the indictment, and the jury should have been directed on the need for unanimity as to the form of participation. The Court found that there was no requirement for the jury to be unanimous as to the basis of liability, as the evidence was sufficient to justify the jury in finding that the appellant was involved in the arson either as a principal or a secondary party. The Court also found that the Crown was not required to charge alternative modes of participation separately, and that there was no abuse of process in the retrial. However, the Court found that the trial judge's direction to the jury on unanimity was in error of law, and that the conviction should be quashed. The Court ordered a retrial, but limited it to the offence of being party to arson by reason of the appellant's conduct in the Linton prison yard.

Orders