Stretch v R - [2020] NZCA 195

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA571/2018
[2020] NZCA 195

BETWEEN	ALBERT KARL LENIN STRETCH Appellant
AND	THE QUEEN Respondent

Hearing:	29 April 2020
Court:	Cooper, Collins and Simon France JJ
Counsel:	D A Ewen and J McVay for Appellant R K Thomson for Respondent
Judgment:	29 May 2020 at 10 am

JUDGMENT OF THE COURT

AThe appeal against the conviction under s 188(1) of the Crimes Act 1961 is allowed and the conviction quashed.
BA conviction under s 188(2) of the Crimes Act 1961 is substituted.
CThe matter is remitted to the District Court for sentencing on that charge.
DMatters of bail are to be considered in that Court. In the interim the appellant is remanded in custody until sentencing.

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REASONS OF THE COURT

(Given by Simon France J)

Following a jury trial before Judge Barry, Mr Albert Stretch was one of three defendants convicted of causing Mr Daniel Wiari grievous bodily harm with intent to do so.[1] The Crown case was that Mr Stretch paid his co-defendants to carry out the assault. Mr Stretch challenges his conviction on the grounds of material error in the Judge’s summing up. The consequential issue is whether this Court, if it agrees with the challenge, should direct a retrial or substitute a conviction for a lesser included offence.[2]

Facts

[1]R v Haddon DC Wellington CRI-2016-096-003566, 11 July 2018 (summing up); and Crimes Act 1961, s 188(1), maximum penalty 14 years’ imprisonment.

[2]Crimes Act, s 188(2), maximum penalty seven years’ imprisonment. This offence is causing grievous bodily harm with intent to injure or reckless disregard for the safety of others.

Two defendants, Messrs Haddon and Keepa, visited Mr Wiari’s house. During the visit Mr Wiari suffered serious head injuries caused by being hit with weights that were located in his home gym. Some months after the assault, in the course of a separate investigation, a telephone call between Mr Haddon and Mr Stretch was intercepted. The telephone call implicated Mr Stretch as the initiator of the assault. During the conversation Mr Stretch laid responsibility on Mr Keepa for taking things too far, and also expressed concern at the incident having put Mr Haddon in a bad situation. Mr Stretch stated:
The only reason I offered it to you fellas is ’cos I know that you’re a proud person and you didn’t want handouts … that’s why I wanted to give you something. Like the only reason I thought oh yeah, easy little tap-up for $1300 …

This was the basis of the Crown case against Mr Stretch.

Of the three defendants, Mr Haddon testified. He said Mr Wiari had a standing invitation on his Facebook page to have a boxing match, one on one, with anyone who wanted. Mr Haddon wanted to put up a stake of $1,000 for such a match, in return for a car Mr Wiari owned. Mr Haddon discussed the idea with Mr Stretch, who he said offered to…

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 Stretch v R

Details

AGLC: Stretch v R [2020] NZCA 195
Case: [2020] NZCA 195
Decision Date: 29 May 2020 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an appeal by Albert Karl Lenin Stretch, who challenged his conviction under section 188(1) of the Crimes Act 1961. Mr Stretch was convicted of causing grievous bodily harm with intent to Mr Daniel Wiari. The central issue was whether there was a material error in the summing up by the Judge that led to a miscarriage of justice.

The Court examined whether the summing up correctly instructed the jury on the elements of the offence, particularly the foresight requirement. The Judge's summing up was found to be deficient as it did not adequately address that Mr Stretch must foresee that one of his co-defendants would intentionally inflict grievous bodily harm. This omission was deemed to have caused a miscarriage of justice, as established in previous cases. The Court considered that the jury must have been correctly directed on the need for Mr Stretch to foresee the intentional infliction of harm by his co-defendants.

Given the error in the summing up, the Court considered whether to order a retrial or substitute a conviction for a lesser included offence. The Court concluded that a substituted conviction under section 188(2) of the Crimes Act, which involves reckless disregard for the safety of others, was appropriate. This was because the jury had already found that Mr Stretch foresaw the possibility of grievous bodily harm occurring, fulfilling the requirement for a conviction under section 188(2). The Court rejected arguments that other errors in the summing up necessitated a retrial, finding that the jury had been adequately directed on the core elements of the offence.

The Court allowed the appeal, quashed the conviction under section 188(1), and substituted a conviction under section 188(2). The matter was remitted to the District Court for sentencing on the substituted charge, and bail matters were to be considered there. In the interim, Mr Stretch was remanded in custody until sentencing.

Orders