Rooney v The Queen - [2011] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND

CA512/2010
[2011] NZCA 52

BETWEEN BRENTON DAVID ROONEY
Appellant

AND THE QUEEN
Respondent

CA532/2010

AND BETWEEN DUNCAN ROY HOLLEBON
Appellant

AND THE QUEEN
Respondent

Hearing: 9 February 2011

Court: Ellen France, Potter and Miller JJ

Counsel: J A Farrow for Appellant Rooney
M A Stevens for Appellant Hollebon
K A L Bicknell for Respondent

Judgment: 7 March 2011 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction by both appellants is dismissed.

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

Para No.

Introduction  [1]
Factual background  [4]
Unreasonable verdicts  [8]
Constable Rooney  [10]
Constable Hollebon  [12]
The evidence at trial  [14]
The arrest  [17]
The blows to the complainant  [25]
Discussion – Constable Rooney  [38]
Discussion – Constable Hollebon  [47]
Conclusion on reasonableness of the verdicts  [52]
The absence of a s 122 direction  [53]
The lunchtime discussion  [66]
Admissibility of report of disciplinary panel member  [68]
Disposition  [72]

Introduction

Constables Rooney and Hollebon were each convicted of a single charge of assault (injuring with intent to injure for Constable Rooney, assault with intent to injure for Constable Hollebon) in the context of the use of excessive force during the arrest of Daniel Wiel. Both appellants appeal their convictions on the grounds:
(a) The verdicts are unreasonable; and
(b)The Judge failed to give a s 122 Evidence Act 2006 direction about the possible unreliability of the evidence of the two principal police witnesses, Constables Dunn and MacDonald.
In addition, Constable Rooney says a miscarriage of justice arises because Constable Dunn was seen talking to Constable MacDonald during a luncheon adjournment in the course of the trial while Constable Dunn was still under oath and under cross-examination.[1]
[1]A further ground of appeal relating to the absence of a lies direction in terms of s 124 of the Evidence Act was abandoned by both appellants.
The challenge to the reasonableness of the verdicts requires a more detailed analysis of the evidence at trial. However, before we turn to the grounds of appeal, we set out an outline of the background.

Factual background

Mr Wiel was seen in the early hours of 15 February 2009 riding a motorcycle through central Dunedin without lights and without a helmet. He was arrested following a police chase.
The first officers to reach Mr Wiel were Constables Dunn and MacDonald. Their evidence was that they were having difficulty getting handcuffs on Mr Wiel when Constable Hollebon joined the group and kicked Mr Wiel. He then walked away, before returning and kicking Mr Wiel again. Constable Rooney arrived before the last kick. As Constable Rooney reached the scene, Constables Dunn and MacDonald said he delivered a forceful kick to Mr Wiel’s head. Constables Rooney and Hollebon were the senior officers on the scene.
Mr Wiel suffered grazes and bruising to the right eye and right side of his face, light bruising to the left side of his chest and abdomen and abrasions to his…

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 Rooney v The Queen

Details

AGLC: Rooney v The Queen [2011] NZCA 52
Case: [2011] NZCA 52
Decision Date: 7 March 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellants, Constables Brenton David Rooney and Duncan Roy Hollebon, appealed their convictions for assault during the arrest of Daniel Wiel. The appellants argued that the verdicts were unreasonable and that the trial judge failed to give a direction under section 122 of the Evidence Act 2006 regarding the possible unreliability of the evidence from the two principal police witnesses, Constables Dunn and MacDonald. Constable Rooney further contended that a miscarriage of justice occurred because Constable Dunn was seen talking to Constable MacDonald during a luncheon adjournment while under oath and under cross-examination.

The court found that the verdicts were not unreasonable as the jury had considered all the evidence, including the medical evidence, and was entitled to infer the requisite intent from the actions of the appellants. The court also held that there was no need for a section 122 direction as the reliability issues were already before the jury, and the judge had adequately emphasised the need for caution in deciding whether to accept the evidence. The court dismissed both conviction appeals.

Orders