R v Wilson - [2007] NZCA 184

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA198/06 [2007] NZCA 184

THE QUEEN

v

RIKKI AARON CHARLES WILSON

Hearing: 28 February 2007
Court: Chambers, O’Regan and Ellen France JJ Counsel: A N Isac for Appellant
A M Powell for Crown

Judgment: 9 May 2007 at 10 am

JUDGMENT OF THE COURT

A An extension of time for filing the appeal is granted.

BThe appeal against conviction is allowed. The convictions are quashed and a retrial is ordered.

R V WILSON CA CA198/06 9 May 2007

CAn order is made that the reasons for judgment are not to be published in the news media or on the internet or in any publicly accessible database until completion of the new trial. Publication in a law report or law digest is, however, permitted.

REASONS

O’Regan and Ellen France JJ [1] Chambers J (dissenting) [35]

O’REGAN AND ELLEN FRANCE J

(Given by Ellen France J)

Introduction

[1] The appellant was convicted after trial in the District Court of three counts of burglary. Prior to trial, he had pleaded guilty to a further count of burglary in relation to a property at 8 Aspiring Avenue, Palmerston North.

[2] The trial judge, Judge N R Dawson, sentenced the appellant to concurrent terms of three and a half years imprisonment on each of the three burglaries on which the appellant had been tried. That sentence of three and a half years was concurrent on a sentence of two years and nine months imprisonment imposed on the appellant on 26 May 2005 for two counts of burglary including the Aspiring Avenue burglary, one count of unlawful possession of a firearm (three months concurrent) and one count of possession of cannabis oil (one month concurrent). The sentences were cumulative on an effective sentence of six and a half years imprisonment imposed on 22 September 2000 in relation to charges of wounding with intent to cause grievous bodily harm and kidnapping. (The appellant had been released on parole on 23 October 2003 in relation to the latter charges and was then recalled following his further offending on parole.)

[3] The appellant appeals against conviction and sentence. As the notice of appeal was filed late, the appellant also seeks an extension of time for filing the appeal.

[4] The members of the Court have determined under s 398(1) of the Crimes Act 1961 that it is convenient that separate judgments be issued by members of the Court.

Factual background

[5] The incidents giving rise to the charges all took place on the night of 2 December 2004. Four properties were involved: 8 Aspiring Avenue;
143 Milson Line; 3 Clearview Drive; and 15 Clearview Drive. All of these properties are in Milson. That is the Palmerston North suburb in which the appellant resided. The house at 8 Aspiring Avenue is about two or…

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 Wilson

Details

AGLC: R v Wilson [2007] NZCA 184
Case: [2007] NZCA 184
Decision Date: 9 May 2007

CaseChat Overview and Summary

The appellant, Rikki Aaron Charles Wilson, was convicted of three counts of burglary in the District Court and appeals against his conviction and sentence. The court was required to decide whether the admission of certain evidence about a burglary to which the appellant had pleaded guilty led to a miscarriage of justice, whether the trial judge adequately directed the jury on similar fact evidence, and whether the judge's tripartite direction on the effect of the appellant's testimony was adequate. The court also considered the issue of the totality of the sentences imposed on the appellant. The Court of Appeal allowed the appeal against conviction and quashed the convictions, ordering a retrial. The court found that the admission of evidence about the appellant's initial denial of the Aspiring Avenue burglary led to a miscarriage of justice due to the prejudicial focus on his initial denial during the trial. The court concluded that the trial judge's directions on similar fact evidence were sufficient, and the tripartite direction was orthodox. The appeal against sentence was not considered due to the outcome on the conviction appeal. The court granted an extension of time for filing the appeal and ordered that the reasons for judgment not be published in the news media or on the internet until completion of the new trial, but permitted publication in a law report or law digest.

Orders