Swainbank v The Queen - [2021] NZCA 93

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA295/2019
[2021] NZCA 93

BETWEEN	STEVEN SWAINBANK Appellant
AND	THE QUEEN Respondent

Hearing:	1 December 2020
Court:	Goddard, Lang and Hinton JJ
Counsel:	J D Lucas for Appellant Z R Hamill for Respondent
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…

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 Swainbank v The Queen

Details

AGLC: Swainbank v The Queen [2021] NZCA 93
Case: [2021] NZCA 93
Decision Date: 26 March 2021 at 10.00 am

CaseChat Overview and Summary

The appellant, Mr Swainbank, appealed his conviction for burglary of a fish finder from a boat in Auckland. He argued that the jury’s verdict was unreasonable as it was based on a single thumbprint found on the instrument panel covering the fish finder. He also argued there was a miscarriage of justice for several reasons, including the conduct of his trial counsel. The Court of Appeal noted that the only evidence linking Mr Swainbank to the burglary was the thumbprint found on the inside of the instrument panel. However, it was open to the jury to find that the only reasonable explanation for the presence of the thumbprint in that location was that it had been placed there during the burglary, which Mr Swainbank committed. The Court did not accept that the jury’s verdict was unreasonable. It also found that the various matters that Mr Swainbank identified as giving rise to a miscarriage of justice did not, either individually or taken together, result in a miscarriage of justice at his trial. The appeal against conviction was dismissed.

Orders