The Queen v Auckram

[2009] NZCA 508

IN THE COURT OF APPEAL OF NEW ZEALAND

CA364/2009
[2009] NZCA 508

THE QUEEN

v

ANDREW MARK AUCKRAM

Hearing:5 October 2009

Court:William Young P, Panckhurst and MacKenzie JJ

Counsel:Appellant in Person

C J Lange for Crown

Judgment:23 October 2009 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]        The appellant was tried in the District Court at Christchurch before Judge Farish and a jury on two counts.  The first count alleged that he had injured Joeline Harris with intent to cause grievous bodily harm to her and the second that he had threatened to do grievous bodily harm to Dallas Te Rangi.  The appellant was found not guilty on the first count but guilty on the second.  He was later sentenced to five months home detention.

[2]        Before us was an appeal against his conviction on the second count.

[3]        Both counts arose out of the theft of a cannabis plant from the appellant.  When he discovered the theft, the appellant turned on Joeline Harris (his then de facto partner).  He suspected that she knew something of the theft.  In the events which followed he assaulted her.  This was the subject of the first count in the indictment.  Ms Harris eventually told the appellant that her brother had been at the address.  The appellant concluded that Ms Harris’s brother and Mr Te Rangi (who was a friend of the brother) had stolen his cannabis plant.  He then drove to the house where Ms Harris’s brother and Mr Te Rangi lived.

[4]        The appellant in his police interview explained what then happened:

QSo what happened at Dallas’s house?

AI knocked on the door, after a while a guy, Dennis, answered the door.  I asked for Dallas, then walked inside.  Dallas was lying on a mattress on the floor.  I upended a container of petrol over him, or part of it.  Then asked him where Manu was, that’s Jo’s brother.

QWhat else did you say?

AI can’t remember, he jumped up and started throwing punches, and Dennis as well, then some other people from the address came in and were asking what was happening so I told them it was all to do with Dallas pinching my pot.

QDid you threaten to light the petrol?

ANo.

QSo what was the point of tipping it on him?

AJust a wake-up call really.  I just had it in the car when I got there.  I just wanted to find out where Manu was, he’s the main instigator of it all.

[5]        The prosecution evidence as to all of this did not differ significantly from what the appellant had admitted at interview save that there was reference to the appellant reaching for his pocket and this giving rise to concern that he had a cigarette lighter.  It was not suggested that there had been an explicit threat to set fire to Mr Te Rangi.  Rather the case for the Crown was that, in context, pouring petrol over Mr Te Rangi carried with it an implicit threat to cause him the grievous bodily harm which would have resulted had the petrol been ignited.

[6]        The appellant was represented by an experienced counsel at trial who ran a lean defence.  The appellant was not called to give evidence.  On the first count the case was put simply on the basis that the appellant had been over-charged.  This defence was successful with the appellant being found not guilty.  On the second count, on which the appellant was convicted, counsel conceded that the pouring of petrol over Mr Te Rangi was an assault and “unusual” but denied that it was a “threat”.

[7]        The appellant told us that he had been persuaded not to give evidence by counsel and that he had had an explanation for having the can of petrol on him which had not been put to the jury.  This explanation was that he had brought the can of petrol to the house so that he could use the petrol to destroy cannabis which was growing at the address of Mr Te Rangi.

[8]        The appellant had originally indicated that he was likely to abandon the appeal.  For this reason, the normal preliminaries for an appeal involving a challenge to the conduct of counsel were not complied with.  Then, the week before the appeal was to be heard, he indicated that he did wish to proceed with the appeal and sought an adjournment.  This was declined by Ellen France J.

[9]        During the hearing of the appeal, at which the appellant appeared in person, we had a courteous but candid discussion with the appellant about the case and the way it was conducted. 

[10]       If we had been troubled by the way in which the defence had been conducted, we would have adjourned the hearing of the appeal (possibly only for a few days) to permit evidence to be called.  But after hearing from the appellant and Mr Lange, for the Crown, we formed the provisional view that the appellant’s complaint was not well founded.  It seems to us that while the appellant may have been able to come up with a reasonably “innocent” explanation for taking a can of petrol to the house (ie one which did not involve an intention either to endanger life or to threaten to do so), this did not alter the character of his conduct in pouring petrol over Mr Te Rangi.  In light of what he had told the police officer at interview, the only conceivable defence was the one which was put by counsel.  Further, we cannot see how that defence would have been assisted by the appellant giving evidence.  Given that the appellant accepted that he had accepted the advice of his counsel not to give evidence, it seemed to us that he was seeking to revisit a tactical decision made at trial.

[11]After Crown counsel’s submissions, we indicated to the appellant our provisional view and invited him in his reply submissions to address that aspect of the case.  At that point we took the afternoon adjournment.

[12]When we returned the appellant said that, on reflection and given the provisional view that we had expressed to him, he did not wish to pursue the appeal.

[13]Accordingly, we dismiss the appeal.

Solicitors:

Raymond, Donnelly & Co, Christchurch