Robert Craig Winterburn v The Queen - [2016] NZSC 38

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 136/2015
[2016] NZSC 38

BETWEEN	ROBERT CRAIG WINTERBURN Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and O'Regan JJ
Counsel:	M J Phelps for Applicant S K Barr and Y Moinfar for Respondent
Judgment:	15 April 2016

JUDGMENT OF THE COURT

A An extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

This is an application for leave to appeal against a decision of the Court of Appeal in which it dismissed the applicant’s appeal against his convictions and upheld an appeal by the Solicitor‑General against sentence.[1] The application is out of time but the respondent does not oppose an extension of time and we are satisfied it is appropriate to grant one.
[1]R v Winterburn [2015] NZCA 384 (Wild, Keane and Kós JJ) [Winterburn (CA)].
The applicant faced 17 charges and just prior to the commencement of his District Court jury trial, he pleaded guilty to four charges.[2] Following the trial, he was convicted of five further offences, four of which involved the same female complainant, whom we will call “S”.[3] S was in a relationship with the applicant at the times at which these offences were committed. In addition, he was convicted of attempting to pervert the course of justice resulting from his attempt to direct S to withdraw her complaint.
[2]These were unlawful possession of firearms, possession of cannabis for supply, offering to supply cannabis and offering to supply methamphetamine.
[3]These four counts were male assault female, threatening to kill, sexual violation by unlawful sexual connection (digital penetration) and rape.
The applicant was acquitted of six counts involving S.[4] He was also acquitted of charges of threatening to kill S’s sister and mother.
[4]These were three counts of male assaults female, one count of threatening to kill, one count of kidnapping and one count of commission of a crime with a firearm.
The applicant wishes to advance the proposed appeal against conviction on the basis that the jury’s decision to acquit on the charges relating to S exhibits inconsistency with the decision to convict on the other counts relating to S and that the convictions are therefore unreasonable.
This does not raise a point of public importance, because the Court has recently set out its views on the approach to take in cases of allegations of inconsistent verdicts in B(SC 12/2013) v R.[5]
[5]B(SC 12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.
In the present case, the Court of Appeal undertook a careful analysis of the inconsistency argument, applying the approach set out in B(SC 12/2013) v R, and concluded that the inconsistencies were explicable and that the convictions were not unreasonable.[6] This was an intensely facts‑based analysis. Having considered carefully the Court of…

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 Robert Craig Winterburn v The Queen

Details

AGLC: Robert Craig Winterburn v The Queen [2016] NZSC 38
Case: [2016] NZSC 38
Decision Date: 15 April 2016

CaseChat Overview and Summary

The applicant, Robert Craig Winterburn, sought leave to appeal against his convictions and sentence, which were upheld by the Court of Appeal. The respondent, the Crown, did not oppose the extension of time to apply for leave to appeal. The Supreme Court granted the extension of time and dismissed the application for leave to appeal. The applicant pleaded guilty to four charges and was convicted of five further offences, including offences against a female complainant, whom we will call "S". He was acquitted of six counts involving S. The applicant argued that the jury's decision to acquit on the charges relating to S exhibited inconsistency with the decision to convict on the other counts relating to S and that the convictions were unreasonable. However, the Court of Appeal undertook a careful analysis of the inconsistency argument and concluded that the inconsistencies were explicable and that the convictions were not unreasonable. The applicant also argued that the Court of Appeal gave excessive weight to the fact that the applicant had been warned on two previous occasions about the risk of an indeterminative sentence being imposed if he were to offend in the future. However, the Court of Appeal's decision involved a careful consideration of all relevant factors, including the seriousness of the current offending, and the Court did not give undue weight to the previous warnings. The Court dismissed the application for leave to appeal.

Orders