| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA295/2019 [2021] NZCA 93 |
| BETWEEN | STEVEN SWAINBANK |
| AND | THE QUEEN |
| Hearing: | 1 December 2020 |
Court: | Goddard, Lang and Hinton JJ |
Counsel: | J D Lucas for Appellant |
Judgment: | 26 March 2021 at 10.00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to file the notice of appeal is granted.
BThe application for leave to admit Mr Coyle’s affidavit as fresh evidence is declined.
CThe appeal against conviction is dismissed.
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Table of contents
Para No
Introduction
Background
The trial
Evidence at trial
Jury questions and s 9 agreement
Closing submissions
The Judge’s summing-up
Grounds of appeal
Evidence on appeal
Evidence in relation to allegations of trial counsel error
Further evidence from Mr Coyle in relation to fingerprint
Was the jury’s verdict unreasonable?
The fingerprint evidence
Other matters relating to the reasonableness of the verdict
Was there a miscarriage of justice?
The DVD interview
Demeanour of Mr Swainbank at interview
Trial counsel issues
(a) Failure to call Constable Young
(b) Mr Swainbank’s place of residence
(c) Mr Swainbank’s medical condition
Absence of additional fingerprint evidence at trial
Summary on miscarriage of justice ground
Result
REASONS OF THE COURT
(Given by Goddard J)
Introduction
The appellant, Mr Swainbank, was convicted of a single charge of burglary in relation to the theft of a fish finder from a boat outside an Auckland property.[1] He was sentenced to four months’ community detention.[2]
[1]Crimes Act 1961, s 231(1)(a).
[2]R v Swainbank [2019] NZDC 10341.
Mr Swainbank appeals against his conviction. He says the jury’s verdict was unreasonable: the jury could not have been satisfied beyond reasonable doubt that he was guilty on the basis of the limited evidence connecting him with the offending. He also submits there was a miscarriage of justice for a number of reasons relating to the way in which his defence was conducted by trial counsel.
Mr Swainbank’s appeal was filed one day out of time. The delay was minimal and there was no prejudice to the Crown. An extension of time was not opposed. We therefore grant leave to file the appeal out of time.
Background
At some time between 3 December 2017 and 6 December 2017, a person entered a boat on a trailer parked at the front of the owner’s address on Auckland’s North Shore and stole a fish finder. In order to steal the fish finder, that person would have had to climb onto the boat, remove an instrument panel covering the fish finder that was screwed to the boat, cut the wires attached to the fish finder, and remove the fish finder from the boat.
A thumbprint was found on the interior lip of the instrument panel that covered the fish finder. That thumbprint was identified by the police as matching Mr Swainbank’s thumbprint on the police computer system. The address shown for Mr Swainbank in the police computer system was…
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- AGLC
- Swainbank v The Queen [2021] NZCA 93
- Case
- [2021] NZCA 93
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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