The Queen v Campbell

[2009] NZCA 478

IN THE COURT OF APPEAL OF NEW ZEALAND

CA230/2009
[2009] NZCA 478

THE QUEEN

v

ANDREW JOHN CAMPBELL

Hearing:1 October 2009

Court:Robertson, Chisholm and Priestley JJ

Counsel:C J Tennet for Appellant

M D Downs for Crown

Judgment:15 October 2009 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

Table of Contents

Para No

Introduction  [1]

Background  [3]

This appeal  [15]

Verdict unreasonable having regard to the evidence  [19]

Errors by trial counsel  [27]

Failure to call character evidence  [30]

Failure to put lack of intent  [32]

Self-defence not adequately put  [37]

Inadequate cross-examination/lack of preparation  [43]

Jury question  [47]

Failing to object to the doctor’s evidence  [50]

Conclusion  [61]

Prosecutorial misconduct  [62]

Misdirection by the Judge  [66]

Alleged misdirection concerning Dr Lyons’s evidence         [67]

Alleged misdirection as to standard of proof  [68]

Outcome  [72]

Introduction

[1]        Following trial in the District Court at Auckland before Judge Perkins and a jury, the appellant was found guilty of injuring with intent to cause grievous bodily harm (count 3).  He was found not guilty on charges of entering a ship with intent to commit a crime (count 1) and assault with intent to facilitate flight (count 2).  A sentence of 300 hours community work was imposed. 

[2]        Mr Campbell appeals against his conviction on four primary grounds:  

(a)         the verdict was unreasonable having regard to the evidence; 

(b)         errors by trial counsel; 

(c)          prosecutorial misconduct; and

(d)misdirections by the trial Judge. 

If the appeal succeeds the appellant seeks to have the conviction quashed rather than the matter being remitted back to the District Court for a re-trial on count 3. 

Background

[3]        The three counts before the jury arose from events at the Viaduct harbour, Auckland, during the early hours of 1 January 2007.  All the primary participants had been drinking. 

[4]        On New Year’s Eve Barrymore Evans, the complainant in relation to counts 1 and 3, moored his yacht, “Lady A”, at the Viaduct harbour so that he could celebrate the New Year with friends.  Later that night Andrew Campbell, the appellant, arrived at the harbour with friends on his family’s motor launch, “Achilles”.  The two boats were berthed near each other. 

[5]        During the early hours of New Year’s morning Mr Evans and one of his guests, Anthony Gojak (the complainant in relation to count 2) heard a noise on the deck of “Lady A” and went up to investigate.  Mr Gojak, who was ahead of Mr Evans, saw Mr Campbell at a chilly bin which contained alcohol and ice, and believed that Mr Campbell was helping himself to alcohol.   

[6]        Mr Campbell’s explanation, by way of a video interview and at trial, was that they had run out of ice on the “Achilles” and that he had been told by “Martin” from the “Lady A” (who had been earlier drinking on their boat) that he could go and get ice from the chilly bin on the yacht.  Mr Campbell…