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Robertson v R

Robertson v R

Case [2016] NZCA 99 8 April 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA499/2015
[2016] NZCA 99

BETWEEN	TONY DOUGLAS ROBERTSON Appellant
AND	THE QUEEN Respondent

Hearing:	3 February 2016
Court:	Harrison, Miller and Cooper JJ
Counsel:	Appellant in person M Lillico and K Grau for Respondent C B Wilkinson-Smith as amicus
Judgment:	8 April 2016 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

Tony Robertson appeals his convictions and sentence for the rape and murder of Blesilda Gotingco.
On the evening of 24 May 2014 Mr Robertson struck Mrs Gotingco with his car as she was walking home, causing her serious injuries. He placed her in the back seat and took her to his home nearby. In his garage he stabbed and cut her repeatedly with a knife. Early the following morning, 25 May, he hid her body in scrub at the Eskdale cemetery in Birkdale. He had visited the cemetery about 6 pm on 24 May, about two hours before encountering Mrs Gotingco. None of this is in dispute.
The Crown maintained that Mrs Gotingco was run down to incapacitate and rape her, that the crime had been planned in advance, that in the garage she was manually strangled then raped and stabbed, that she was alive when attacked with the knife but died almost immediately from resulting blood loss, and that all of this was done with murderous intent. All of this is in dispute.
Mr Robertson’s case at trial was that the car injuries were accidental, that when she arrived at his house Mrs Gotingco evidently was unconscious and he believed her to be dead, and that he accordingly acted without murderous intent when he inflicted the knife wounds. In evidence he said that he used the knife in a panicked attempt to disguise the car injuries, that it took only a very few minutes, and that he was “smashed” on drugs at the time. He denied strangling or raping Mrs Gotingco and explained the presence of his semen on vaginal swabs by saying that the police planted the evidence and the Institute of Environmental Science and Research (ESR) contaminated and mislaid it. He also claimed that someone had planted bloodstains on a filleting knife that he had not in fact used, and he denied inflicting on the body several knife wounds that were consistent with Mrs Gotingco being alive and struggling when stabbed. The jury must have rejected much if not all of this account.
On appeal Mr Robertson maintains all of these allegations but also says that Mrs Gotingco may have been dead before she was stabbed and he was so drugged as to be incapable of forming an intent. He says that the Judge’s summing-up was wrong; that evidence was wrongly admitted; that the trial, at which he represented himself with assistance from amicus, was unfair; and that the jury must have been exposed to suppressed information about him. He says…

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 Robertson v R

Details

AGLC: Robertson v R [2016] NZCA 99
Case: [2016] NZCA 99
Decision Date: 8 April 2016 at 11.30 am

CaseChat Overview and Summary

Tony Robertson appeals his conviction and sentence for the rape and murder of Blesilda Gotingco. The Court of Appeal dismisses the appeal in its entirety. The evidence established that Mr Robertson struck Mrs Gotingco with his car as she was walking home, causing her serious injuries. He placed her in the back seat and took her to his home nearby. In his garage he stabbed and cut her repeatedly with a knife. Early the following morning, 25 May, he hid her body in scrub at the Eskdale cemetery in Birkdale. The Crown maintained that Mrs Gotingco was run down to incapacitate and rape her, that the crime had been planned in advance, that in the garage she was manually strangled then raped and stabbed, that she was alive when attacked with the knife but died almost immediately from resulting blood loss, and that all of this was done with murderous intent. All of this was in dispute. Mr Robertson’s case at trial was that the car injuries were accidental, that when she arrived at his house Mrs Gotingco evidently was unconscious and he believed her to be dead, and that he accordingly acted without murderous intent when he inflicted the knife wounds. In evidence he said that he used the knife in a panicked attempt to disguise the car injuries, that it took only a very few minutes, and that he was “smashed” on drugs at the time. He denied strangling or raping Mrs Gotingco and explained the presence of his semen on vaginal swabs by saying that the police planted the evidence and the Institute of Environmental Science and Research (ESR) contaminated and mislaid it. He also claimed that someone had planted bloodstains on a filleting knife that he had not in fact used, and he denied inflicting on the body several knife wounds that were consistent with Mrs Gotingco being alive and struggling when stabbed. The jury must have rejected much if not all of this account. On appeal Mr Robertson maintains all of these allegations but also says that Mrs Gotingco may have been dead before she was stabbed and he was so drugged as to be incapable of forming an intent. He says that the Judge’s summing-up was wrong; that evidence was wrongly admitted; that the trial, at which he represented himself with assistance from amicus, was unfair; and that the jury must have been exposed to suppressed information about him. He says further that the minimum period of imprisonment of 24 years imposed on him for murder is manifestly excessive.

The Court of Appeal found that the knife wounds were the immediate cause of death; she was alive when attacked with the knife but died within minutes. There was no sufficient foundation for the possibility that Mrs Gotingco died from blunt force trauma. It follows that the Judge did not err by treating the knife wounds as the cause of death and directing the jury to consider whether they were inflicted with murderous intent. The evidence about cause of death pointed strongly to the conclusions not only that she was alive when stabbed but also that she struggled and had to be subdued. It was plainly open to the jury to find that Mr Robertson acted with murderous intent.

The Court of Appeal found the GPS data to be reliable. Mr Robertson’s real complaint was not that the data is unreliable but rather that it does not sustain the inference that he went to the cemetery to scout a burial location rather than, as he claimed, to smoke drugs. But the Crown was entitled to allege that he planned the killing and the GPS data provided limited support for that contention. That being so, the evidence was properly before the jury. Whether it ultimately sustained the inference that he was scouting a location was a question for them. The Court of Appeal found that the GPS data was reliable.

Mr Robertson complained that the Judge continued name suppression while permitting his image to be published, because a Registry staff member posted inflammatory comments online, and because media reporting was one-sided. There is no evidence that the media breached suppression orders during the trial, and no reason to suppose that the jury ignored the Judge’s directions or otherwise learned of Mr Robertson’s background. As the Judge said he would do, he questioned each juror individually. Each of them confirmed that he or she had not learned anything of Mr Robertson’s history other than in the courtroom.

The Court of Appeal found that the minimum period of 24 years imposed on Mr Robertson for murder was appropriate. It was open to Brewer J to rely on any fact that was disclosed by evidence at the trial and not inconsistent with the jury verdicts. The Court of Appeal found that the minimum period of 24 years imposed on Mr Robertson for murder was appropriate.

Orders