The Queen v Butler - [2008] NZCA 287

IN THE COURT OF APPEAL OF NEW ZEALAND
CA614/2007
[2008] NZCA 287
THE QUEEN
v
ROBERT BENJIMAN BUTLER
Hearing:29 July 2008

Court:Ellen France, Gendall and Miller JJ
Counsel:N J Sainsbury and L A Scott for the Appellant

S J Mount for Crown

Judgment:7 August 2008 at 3 pm

JUDGMENT OF THE COURT

AN EXTENSION OF TIME TO BRING THE APPEAL IS GRANTED BUT THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
[1]       On 24 September 2005 a mobile car crushing unit owned by Otago Metal Industries Limited was sabotaged. Mr Butler, a director of a competing firm, was found guilty of intentional damage under s 269(2)(a) of the Crimes Act 1961. The trial was held before a Judge alone on 10 January 2007, and he was sentenced to two years imprisonment. He appeals against conviction only.
[2]       An extension of time to bring the appeal is required because the appeal was not filed until 5 October. The explanation is that Mr Butler tried to raise funds to pay counsel, and then had to secure legal aid. The Crown does not oppose. In the circumstances, the extension of time is granted.
The District Court hearing
[3]       Mr Butler and his partner, Tania Conner, were both charged, but at the beginning of the hearing her counsel made a s 347 application orally. It was granted without opposition.
[4]       Mr Butler’s counsel, Mr Slater, then made an oral application for discharge. Judge Macdonald advised that he had read the depositions and inquired whether a Telecom witness who had made a deposition about telephone calls was to give evidence. That deposition established that a phone registered to a company of which Mr Butler is the director, had made two telephone calls to another cellphone (which the evidence established was Ms Conner’s) at 10.21 pm and 10.22 pm on the night of the incident. Having established that the witness was not to give evidence, the Judge then checked with counsel that his submission was that there was no evidence that Mr Butler was at the scene. Mr Slater confirmed that it was. The application was argued and dismissed, the Judge advising that he would not give reasons at that stage. He then established with counsel which witnesses were to be called and which were to have their depositions read.
[5]       A reserved decision was delivered on 21 February 2007. The Judge found that sand had been placed in the machine’s bypass filter. The engine suffered severe damage when it was operated the following day, necessitating repairs costing approximately $73,000. The offender must have had some knowledge of such machines. The filter cap was replaced, suggesting the offender hoped the sabotage would not be detected until the damage had been done. Mr Butler had a motive to damage the machine. When he bought his own machine from Frost Steel Compactors there were only two machines operating in the South Island. One was owned by Frost, the other by Otago Metal…

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 Butler

Details

AGLC: The Queen v Butler [2008] NZCA 287
Case: [2008] NZCA 287
Decision Date: 7 August 2008

CaseChat Overview and Summary

The case of The Queen v Butler involved an appeal by Robert Benjiman Butler, a director of a company, against his conviction for intentionally damaging a mobile car crushing unit owned by Otago Metal Industries Limited. The incident took place on 24 September 2005, and Butler was found guilty under s 269(2)(a) of the Crimes Act 1961. The trial was held in the District Court before a Judge alone, and Butler was sentenced to two years imprisonment. The appeal was against the conviction only, and an extension of time to bring the appeal was required due to delays in securing legal representation.

The primary legal issue in this appeal was whether the District Court Judge had correctly considered all the evidence and whether the conviction was based on circumstantial evidence that did not exclude an innocent explanation. Butler's counsel argued that the Judge might have overlooked the possibility that Tania Conner, Butler's partner, could have committed the offence instead of Butler. The argument was that the Judge had read depositions before the trial, which included a statement from Conner indicating that Butler had driven with her to the area and then gone off walking. Counsel suggested that the Judge may have overlooked Conner as the offender because of this deposition.

The Court of Appeal rejected the submission that a Judge who has read the file before trial is unable to act as the trier of fact. The Court noted that a Judge who has dealt with a proceeding at an earlier stage is not normally disqualified unless there is some real ground for doubting the Judge’s ability to bring an objective judgment to bear. The Court found that the Judge had taken care to establish which depositions were being used and which witnesses were to be called. The evidence, including that from the security guard who observed the car and Conner, supported the inference that Conner was waiting for Butler and that he was the one who sabotaged the machine.

The Court concluded that the decision was correct and dismissed the appeal. The appeal was dismissed, and the conviction and sentence stood as determined by the District Court.

Orders