Sharpe v The Queen - [2020] NZCA 475

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA233/2020
[2020] NZCA 475

BETWEEN	STEPHEN SHARPE Appellant
AND	THE QUEEN Respondent

Hearing:	27 August 2020 (further submissions 21 October 2020)
Court:	Gilbert, Thomas and Dunningham JJ
Counsel:	W C Pyke for Appellant E J Hoskin for Respondent
Judgment:	23 October 2020 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is allowed. We direct that a judgment of acquittal be entered on the charge of aggravated burglary.
BThe record of the first strike warning given to the appellant by the District Court on 24 January 2020 is cancelled in respect of the conviction quashed.
CThe concurrent sentences of 12 months’ imprisonment on the charges of assault with a weapon and careless use of a firearm (x 2) are set aside. Concurrent sentences of two years and two months’ imprisonment are substituted on these charges.

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REASONS OF THE COURT

(Given by Gilbert J)

Mr Sharpe was found guilty by a jury on one charge of aggravated burglary, two charges of careless use of a firearm and one charge of assault with a weapon, all arising out of events on the evening of 2 February 2019.[1] Mr Sharpe was convicted and sentenced by Judge Butler to three years and six months’ imprisonment on the lead charge of aggravated burglary and concurrent sentences of 12 months’ imprisonment on each of the other charges.[2] Mr Sharpe now appeals against his conviction on the charge of aggravated burglary. He also appealed against his sentence, but this was not pursued at the hearing. Counsel advised that the sentence will only need to be revisited if the conviction appeal is allowed.
[1]Mr Sharpe was also found guilty on one charge of possession of a Class C controlled drug.
[2]R v Sharpe [2020] NZDC 1099 [Sentencing judgment].
Two grounds of appeal were identified in the notice of appeal. The contention that the jury’s verdict on the aggravated burglary charge was unreasonable is not pursued. The sole remaining ground of appeal is that the Judge misdirected the jury and there is a risk of miscarriage as a result.

The facts

Mr Sharpe had been in a four-year relationship with one of the complainants, Ms Beckham. The relationship ended in November 2018, but Mr Sharpe remained living as a tenant in Ms Beckham’s house. At the time of the offending, Ms Beckham was living in the house with her new partner, Mr Hyett, the second complainant.
On 1 February 2019, Ms Beckham gave Mr Sharpe 28 days’ notice to vacate. On the evening of Saturday, 2 February 2019, the three of them were out drinking together at a local tavern. During the course of the evening, Mr Sharpe tried several times to take Ms Beckham aside to talk to her, causing her to become distressed. The three of them then returned home and Ms Beckham and Mr Hyett went to their bedroom which was upstairs and situated directly above Mr Sharpe’s…

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 Sharpe v The Queen

Details

AGLC: Sharpe v The Queen [2020] NZCA 475
Case: [2020] NZCA 475
Decision Date: 23 October 2020 at 9.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Stephen Sharpe appealed against his conviction for aggravated burglary, assault with a weapon, and careless use of a firearm. The appeal was heard on 27 August 2020 and further submissions were made on 21 October 2020. The appeal against conviction was allowed, and a judgment of acquittal was entered on the charge of aggravated burglary. The record of the first strike warning given to the appellant by the District Court on 24 January 2020 was cancelled in respect of the conviction quashed. The concurrent sentences of 12 months’ imprisonment on the charges of assault with a weapon and careless use of a firearm (x 2) were set aside and replaced with concurrent sentences of two years and two months’ imprisonment.

The central legal issue in this case was whether the trial judge had misdirected the jury, leading to a risk of miscarriage of justice. The appellant argued that the trial judge had erred in his directions concerning the offence of presentation of a firearm, which may have led the jury to conclude that the appellant intended to point the shotgun at the complainants, rather than racking it. The appellant's counsel submitted that this was unfair because the defence had not had the opportunity to present argument on this alternative thesis.

The Court of Appeal found that the trial judge had indeed erred in his directions, as he had not confined his summing up to the imprisonable offence the Crown relied on. The Court held that it was unacceptable and contrary to basic fair trial rights for a defendant to hear for the first time during the course of a judge's summing up that they were vulnerable to conviction on a basis other than that advanced by the Crown. The Court concluded that the error in the trial judge's directions had led to an unfair trial and a miscarriage of justice on the aggravated burglary charge. As a result, the appeal against conviction was allowed, and a judgment of acquittal was entered on that charge.

Orders