Stepanicic v R - [2015] NZCA 35

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/2014
[2015] NZCA 35

BETWEEN	CHARLES STEPANICIC Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2015
Court:	Wild, MacKenzie and Lang JJ
Counsel:	PHH Tomlinson for Appellant M G Wilkinson for Respondent
Judgment:	2 March 2015 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe appellant’s conviction on count 3 in the indictment is quashed.
CA retrial on that charge is ordered.

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REASONS OF THE COURT

(Given by Wild J)

Mr Stepanicic appeals against his conviction on a charge of causing grievous bodily harm with intent to avoid arrest or facilitate flight in the commission of a crime (Crimes Act 1961, s 191(1)(c)). This was count three in the indictment. The jury found him guilty in a trial in the Auckland District Court on 6 March 2014.
Mr Stepanicic had burgled two residential properties in Massey in Auckland.[1] Constable Carter, one of the police officers called to the scene, found Mr Stepanicic in a nearby park. Mr Stepanicic had three bags with him. The Crown case was that Constable Carter approached Mr Stepanicic and asked him what he was doing. Mr Stepanicic said he had come from a nearby house and pointed with his arm. He then used that arm to punch Constable Carter, who fell to the ground unconscious. When the Constable recovered consciousness Mr Stepanicic was sitting on top of him and punching him repeatedly in and around the head. He then threatened to kill Constable Carter. The Constable said he was able to get hold of his pepper spray and spray Mr Stepanicic in the face, at which point Mr Stepanicic made off.
[1]Mr Stepanicic pleaded guilty to the two charges of burglary on 4 March 2011, the morning his trial started.
Mr Stepanicic’s evidence at trial was that Constable Carter had pepper sprayed and then assaulted him, and he had punched the Constable in self-defence. In the course of doing this he lost his balance and fell on top of the Constable, accidentally elbowing him in the face and causing the injury the Constable sustained to his eye socket.
As part of her summing up, Judge Philippa Sinclair handed the jury a comprehensive question trail headed ‘Questions for the Jury’.
For the Crown, Ms Wilkinson accepts Mr Tomlinson’s criticism as to the order of the questions in this trail relating to count three. Mr Tomlinson submitted the jury should have been directed to consider self-defence before considering issues of Mr Stepanicic’s intent or the harm cause to Constable Carter. But, for reasons we shall explain, we need not go into that criticism.
These are the questions the Judge gave the jury in relation to self-defence:
3.3Are you sure that the circumstances as Charles [Stepanicic] believed them to be justified the use of force against Constable Carter in defence of himself?
3.4Are you sure that the force used by Charles [Stepanicic] against Constable Carter was used for the purpose of defending himself?
3.5Are you sure…

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 Stepanicic v R

Details

AGLC: Stepanicic v R [2015] NZCA 35
Case: [2015] NZCA 35
Decision Date: 2 March 2015 at 10.30 am

CaseChat Overview and Summary

In Stepanicic v R, Charles Stepanicic appealed his conviction for causing grievous bodily harm with intent to avoid arrest or facilitate flight in the commission of a crime. The incident occurred when Constable Carter found Stepanicic in a park, who then assaulted the Constable after claiming self-defense. Stepanicic was convicted by a jury in the Auckland District Court and appealed the decision to the New Zealand Court of Appeal. The central issue before the Court was whether the jury was misdirected in its consideration of Stepanicic's self-defense claim. Specifically, the Court examined whether the questions posed to the jury on self-defense reversed the onus of proof.

The Court of Appeal held that the questions provided to the jury for their deliberation on self-defense were inaccurately framed and misdirected the jury on the burden of proof. The questions should have been structured to first inquire about Stepanicic's belief in the circumstances and his belief that Constable Carter was using excessive force against him, before determining if Stepanicic was defending himself. The misdirection in the questions led the Court to conclude that the conviction should be quashed and a retrial ordered on the charge of causing grievous bodily harm with intent to avoid arrest or facilitate flight. The Court emphasized the critical importance of accurately framing questions in a jury trial, as jurors rely on these questions as the basis for their deliberations. The appeal was thus allowed, and the conviction was quashed with a retrial ordered on the specified charge.

Orders