The Queen v Anderson - [2008] NZCA 62

IN THE COURT OF APPEAL OF NEW ZEALAND
CA279/07
[2008] NZCA 62
THE QUEEN
v
MELINDA JOCELYN ANDERSON
Hearing:4 March 2008

Court:Chambers, Gendall and Harrison JJ
Counsel:J J McCall for Appellant

M D Downs for Crown

Judgment:18 March 2008 at 3.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]       Ms Melinda Anderson appeals against her conviction on one count of burglary following trial before a Judge and jury in the District Court at Christchurch. She has not pursued an appeal against her conviction on an additional count of possession of instruments capable of being used for burglary.
[2]       The principal grounds of appeal advanced by Ms Anderson’s counsel, Mr Jeffrey McCall, who did not appear at trial, are: (1) the trial Judge failed to direct the jury to acquit on the burglary charge if it was satisfied that the evidence might reasonably have supported a conviction on an alternative count of receiving; and (2) error by trial counsel in failing to properly advise Ms Anderson before she decided not to give evidence at trial.
Background
[3]       Some time during 10 January 2006 a residential property occupied by Ms Deborra Johns in Sumner, Christchurch, was burgled. The intruder or intruders had effected entry by jemmying open a window. A number of valuable items were stolen including a large television set, recording and camera equipment, an Apple I‑pod with its adapter, ear piece, carry case and charger, a brooch, a pair of earrings, a Russian wedding ring, and a women’s Astina watch. Also stolen was a backpack with Ms Johns’ name and phone number printed on the inside cover. The total value of the property exceeded $18,000.
[4]       At 3.45 am on 13 January 2006 the police stopped a vehicle driven by Mr Anthony Brooking in a Christchurch suburb. Ms Anderson was a passenger. An electronic scanner tuned to the police communications frequency was prominently located in the central console. A search of the car revealed two torches, a pair of gloves, a beanie hat and a set of binoculars. A jemmy bar was behind the front passenger seat. On the back seat was Ms Johns’ backpack containing one of her earrings.
[5]       The police arrested Mr Brooking but not Ms Anderson. While seated on the pavement she advised a police officer that some of her property was in the vehicle including an I-pod charger or adapter which was fitted into the cigarette lighter. The officer gave her the item.
[6]       Some time later on 13 January the police obtained a warrant to search a property occupied by Mr Brooking and Ms Anderson. They recovered a number of the items which Ms Johns later identified as stolen from her home on 10 January. Among them were the I-pod and its charger, the Astina watch and the Russian wedding ring.
[7]       Ms Anderson was later interviewed by the police but declined to answer any questions. She and Mr Brooking…

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 The Queen v Anderson

Details

AGLC: The Queen v Anderson [2008] NZCA 62
Case: [2008] NZCA 62
Decision Date: 18 March 2008

CaseChat Overview and Summary

In the case of The Queen v Anderson, the appellant, Melinda Anderson, sought to appeal against her conviction for burglary. The appeal was dismissed by the Court of Appeal of New Zealand. The case involved a burglary of a residential property in Sumner, Christchurch, where various valuable items were stolen. Ms Anderson was found in possession of stolen items and burglary tools in a vehicle she was a passenger in. She was charged jointly with Anthony Brooking with burglary and possession of instruments, while Mr Brooking faced additional charges.

The primary legal issues addressed by the Court were whether the trial Judge failed to direct the jury to acquit on the burglary charge if the evidence might reasonably support a conviction for the alternative crime of receiving, and whether trial counsel was incompetent in advising Ms Anderson not to give evidence at trial. The Court examined these issues in detail, considering the evidence and the law applicable to the doctrine of recent possession and the potential for alternative charges.

The Court found that the trial Judge did not err in directing the jury, as the evidence did not support an alternative charge of receiving. The Court also concluded that trial counsel's advice to Ms Anderson not to give evidence was not incompetent, as her proposed testimony did not provide a reasonable basis for an alternative charge or rebut the inferences from the Crown's case. Therefore, the appeal against conviction was dismissed.

This case highlights the importance of proper jury direction in criminal trials and the role of trial counsel in advising defendants on their decision to give evidence. The Court's decision reinforces the principle that alternative charges should be considered where the evidence supports such a possibility, but where there is no such evidence, the trial Judge's directions are appropriate. Additionally, the Court emphasised the need for competent legal advice in criminal proceedings, ensuring that defendants are properly informed of their options and the potential consequences of their decisions.

Orders