The Queen v Geoffrey Paul Affleck

[2001] NZCA 61

IN THE COURT OF APPEAL OF NEW ZEALAND CA43/01

THE QUEEN

V

GEOFFREY PAUL AFFLECK

Hearing:

28 March 2001

Coram:

McGrath J
Ellis J
McGechan J

Appearances:

D A Ewen for Appellant
J C Pike for Crown

Judgment:

Reasons for Judgment:

28 March 2001

29 March 2001

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY ELLIS J

1. This is an application for leave to appeal from a pre-trial ruling in the District Court refusing severance of counts.  The counts are:

   (1)        On the 29^th day of May 2000 at Whitianga assaulted Tane Hull and in assaulting him used an axe as a weapon.

   (2)        On the 29^th day of May 2000 at Whitianga assaulted Rex Jackson and in assaulting him used an axe as a weapon

   (3)        On the 29^th day of May 2000 at Whitianga threatened to kill the step father of Tane Hull.

   (4)        On the 7^th day of June 2000 at Whitianga except for some lawful proper or sufficient purpose was in possession of a pistol.

2. At the end of the hearing we allowed the appeal, and we now give our reasons.

3. The appellant claims that the first three counts should be tried together and the fourth separately.  He submits that the evidence admissible in respect of the fourth is not sufficiently related to the other three and will prejudice his fair trial on them.

4. The prosecution case is that the appellant approached the two complainants, assaulted them, threatened them with an axe and said “I’ve got a bullet for Rene.  I know where you live.  I don’t care if you tell him”.  Rene is the stepfather of one of the complainants.  The reason for his conduct he said was that he didn’t want Rene to “send any more kids around to (his) house looking for drugs”.  This is the evidence in respect of the first three charges.  Following the incident the Police obtained a search warrant to search the appellant’s house.  There they found ammunition and a “pen pistol”.  There is no evidence whether the ammunition could be used in the pistol.  This is the evidence in support of the fourth charge.

5. It is common ground that to establish the third charge, the Crown must prove a threat and an intention that the threat would influence the mind of the person to whom it is addressed: Meek [1981] 1NZLR 499. It is not necessary to prove an intention to carry out the threat: Syme (1911) 6Cr App R257, or that the accused had the present capability of carrying it out: Goldie [1993] 2NZLR 329. On this basis it is unnecessary to prove the accused had a firearm, and there is no suggestion that the complainants knew he had one when the alleged threat was made.

6. Mr Pike submitted that the four charges should be heard together because the fact that the accused had a firearm supported the allegation that the accused intended his threat to be taken seriously, so that  there is added proof of mens rea.  In the present case we think that this is not so.  The incident when the threat was made is discrete from the subsequent search, and in our view not sufficiently interconnected to warrant the fourth charge being tried with the other three.  Such weight as the submission may have is in any event far outweighed by the likely prejudice to the accused.  While in other cases prejudicial and extraneous evidence can be dealt with by a direction to the jury from the trial judge, the prejudice in this case can and should be avoided by severance.

7. The power to grant severance is contained in s340(3) of the Crimes Act 1961.  If the Court thinks it conducive to the ends of justice, it can order separate trials.  The appellant relied on Solan (1900) 21NZLR 217 where Edwards J held that there ought to be separate trials if there is a real danger that the evidence upon one count may wrongly be taken into consideration in dealing with another count. He further held that where this is so, the question of the expense of an extra trial ought not to be taken into serious consideration. We are of the view that this is just such a case.

8. For these reasons we granted leave to appeal and allowed the appeal by ordering severance of the fourth count from the first three.

Solicitors

Crown Law Office, Wellington