The Queen v Cockburn - [2008] NZCA 463

IN THE COURT OF APPEAL OF NEW ZEALAND
CA531/2008
[2008] NZCA 463
THE QUEEN
v
BEVIN WILLIAM COCKBURN
Hearing:21 October 2008

Court:Baragwanath, Priestley and Venning JJ
Counsel:A J Haskett for Applicant

K Raftery for Respondent

Judgment:4 November 2008 at 11.30am

JUDGMENT OF THE COURT

The leave application is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
Application for special leave
[1]       The applicant applies under s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court. His application for leave to appeal has been refused by the High Court.
[2]       This Court may grant special leave if it is of the opinion that the question of law involved is one of general public importance or which, for any other reason, ought to be submitted to this Court for decision.
Prior history
[3]       The applicant was convicted on charges of burglary and converting a truck in August 2007. Those convictions were entered at the end of a trial in the Manukau District Court, presided over by Judge Burnett, sitting in the Court’s summary jurisdiction. The Judge delivered a carefully reasoned oral decision, the transcript of which spans 10 pages and 33 paragraphs, giving the reasons why she was satisfied guilt had been established beyond reasonable doubt.
[4]       The applicant exercised his right of a general appeal. This was heard in the High Court at Auckland by Lang J on 3 June 2008.
[5]       To resolve one of the points raised on appeal the Judge directed that the District Court’s documentary exhibits were to be made available for him and counsel to view. The specific focus of this direction, mentioned later (below at [15]), was a diagram depicting the area from which the applicant’s fingerprint was taken. Lang J’s reserved judgment of 30 June 2008 dismissed the appeal.
[6]       The applicant then sought leave from Lang J to appeal to this Court. The Judge dismissed the leave application on 8 August 2008.
Background
[7]       We briefly set out the factual background. The two charges the applicant faced arose out of night time offending in January 2006. The applicant had been employed as a driver for the victim, a transport company, which had a depot in Waiuku. On the night in question a thief used a hidden key to gain entry to a storage area on the premises. Truck oil from 40 gallon drums was pumped into empty containers. The containers were then loaded on to a light truck, parked in the victim’s yard, and removed from the premises. The truck was returned to the depot a short time later. The issue at trial was identity.
[8]       Much of the offending was recorded by security camera. The offender kept his face hidden throughout and avoided looking in the direction of the cameras, particularly an inside camera, which suggested he might well have been aware of the cameras’ positions.
[9]       The offender was identified as the applicant from security camera film by the owner and general manager…

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 Cockburn

Details

AGLC: The Queen v Cockburn [2008] NZCA 463
Case: [2008] NZCA 463
Decision Date: 4 November 2008

CaseChat Overview and Summary

In the case of The Queen v Cockburn, the applicant, Bevin William Cockburn, sought special leave to appeal against his conviction for burglary and converting a truck, which were decided by the Manukau District Court in August 2007. Following the dismissal of his appeal in the High Court in June 2008, Cockburn applied for special leave to appeal to the Court of Appeal of New Zealand. The key legal issues revolved around the admissibility of evidence, including a spreadsheet detailing the use and movements of trucks, a fingerprint form, and the testimony of a police officer. The applicant also argued that the trial judge had not adequately considered the defence evidence.

The Court of Appeal, consisting of Baragwanath, Priestley, and Venning JJ, declined the application for special leave. The court agreed with the High Court’s decision that any objections to the admissibility of the spreadsheet were waived as the defence counsel had cross-examined the witness on its contents. The court also found that there was no error in the admissibility of the fingerprint evidence, as the fingerprint lift and form were correctly identified and received in evidence. Furthermore, the trial judge was deemed to have appropriately considered the defence evidence, thereby rejecting the applicant's final contention.

The Court of Appeal concluded that there was no error in either the District Court’s judgment or the High Court’s determination of the appeal. The legal issues raised did not meet the threshold for special leave, which requires questions of law of general public importance or other compelling reasons. Therefore, the leave application was declined, and the convictions were upheld.

Orders