Stretch v The Queen - [2020] NZSC 128

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 47/2020
[2020] NZSC 128

BETWEEN	ALBERT KARL LENIN STRETCH Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Williams JJ
Counsel:	D A Ewen for Applicant R K Thomson for Respondent
Judgment:	18 November 2020

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicant was convicted along with two associates of causing grievous bodily harm with intent to do so (s 188(1) of the Crimes Act 1961). The applicant was convicted on the basis that he was a party to the offending under s 66(2) of the Crimes Act. On appeal to the Court of Appeal, his conviction under s 188(1) was quashed and a conviction of causing grievous bodily harm with reckless disregard for the safety of others under s 188(2) was substituted.[1] He seeks leave to appeal against his conviction on the substituted charge.
[1]Stretch v R [2020] NZCA 195 (Cooper, Collins and Simon France JJ) [CA judgment].
The Crown case was that the applicant paid his two co‑defendants to assault the victim. The co‑defendants carried out the assault, but it was of such seriousness that the active perpetrators were charged with (and convicted of) causing grievous bodily harm with intent to cause grievous bodily harm. That meant that the actual assault went further than the common purpose of assaulting the victim. It was therefore necessary for the Crown to prove that the assault causing serious injury was, in the words of s 66(2), “known [by the applicant] to be a probable consequence of the prosecution of the common purpose”.
The application for leave to appeal to this Court focuses on the directions the trial Judge gave in both his summing up and in the question trail he provided to the jury about the “probable consequence” requirement. The Judge’s directions were as follows:
Secondly, and this is applying to the Crown case against Mr Stretch, when a person forms a common intention with another person or persons to commit an offence and to assist each other in doing that, then such a person is a party to any offence committed by the others in carrying out that common intention if the commission of that offence was known to that person to be a probable consequence of them carrying out the common purpose.
So at law, knowing something to be a probable consequence means that the person knew there was a substantial or real risk of that offence occurring in the carrying out of that common purpose, and the Crown case is that Albert Stretch, who was not present when Daniel Wiari was hurt, was a party to the offending by the other two men in that way.
…
Are you sure that [the applicant] knew at the time of forming that intention that there was a substantial or real risk Mr Wiari would suffer really serious harm in that assault?^[[2]] If the answer is no, you…

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 The Queen

Details

AGLC: Stretch v The Queen [2020] NZSC 128
Case: [2020] NZSC 128
Decision Date: 18 November 2020

CaseChat Overview and Summary

The applicant, Albert Karl Lenin Stretch, sought leave to appeal against his conviction for causing grievous bodily harm with reckless disregard for the safety of others. The Crown had alleged that Stretch paid his co-defendants to assault the victim, which resulted in serious injury. The trial judge directed the jury that the applicant was guilty if he knew that there was a substantial or real risk that the assault would cause serious harm. This was later recognised as an error by the Court of Appeal, which substituted a conviction under s 188(2). Stretch now seeks leave to appeal against his conviction on the substituted charge, focusing on the trial judge's direction to the jury regarding the requirement that the offence be a "probable consequence" of the common purpose.

The key issue before the court was whether the trial judge's direction to the jury regarding the meaning of "probable consequence" was erroneous, and if so, whether this warranted reconsideration of the established test set out in Ahsin v R. The applicant argued that the trial judge's direction, which referred to the risk as a "substantial or real risk", did not accurately reflect the statutory requirement that the risk be a "probable consequence". The Court of Appeal had previously noted that the direction was incorrect, but had adopted the same approach as the Supreme Court in Ahsin. The applicant argued that this case was sufficiently different from Ahsin to warrant reconsideration of the test, but the Court disagreed.

The Court found that the established test for determining whether an offence was a "probable consequence" of a common purpose was consistent with the trial judge's direction to the jury. The Court noted that the trial judge had used the statutory words "probable consequence" in his summing up, and that the established test allowed for the risk to be described as a "real risk, a substantial risk, [or] something that might well happen". The Court also found that there was no reason to distinguish the present case from Ahsin, as the established test had been consistently followed since that decision. The Court concluded that the application for leave to appeal did not have sufficient prospects of success to warrant the grant of leave.

The application for leave to appeal is dismissed.

Orders