The Queen v Gray - [2009] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND
CA708/2008
[2009] NZCA 438
THE QUEEN
v
RACHAEL LOSANNA GRAY
Hearing:21 September 2009

Court:O'Regan, Venning and Winkelmann JJ
Counsel:E J Forster for Appellant

T Epati for Crown

Judgment:25 September 2009 at 11.30 am

JUDGMENT OF THE COURT

An extension of time to appeal is granted but the appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       The appellant was found guilty of arson following trial in the District Court at Palmerston North before Judge Atkins QC and a jury. She was sentenced to imprisonment for two years six months (which included an uplift of three months to take account of the appellant’s guilty pleas on two fraud charges). The appellant appealed against her conviction and sentence on the arson charge. She has subsequently abandoned the appeal in relation to sentence.
General background
[2]       In 2006 the appellant and her husband were carrying out extensive renovations to their home. To finance the renovations they had borrowed $100,000. The borrowing had placed the appellant and her husband under severe financial pressure.
[3]       On 6 November 2006 the appellant was at home alone. At 10.46 am she made a 111 call reporting that the house was on fire. The fire brigade attended and put the fire out. The house was severely damaged. Subsequent inquiries by the fire brigade, the insurance company and the police established the fire had been deliberately started by the application of heat to a fabric-covered armchair in the lounge of the house. The appellant told the police that she had left the house in the morning at 10.40 am to get some bread, that she had parked in the carpark at the Four Square store, but had returned home when she discovered she did not have her wallet on her. She said that when she returned home the house was on fire.
[4]       Police inquiries, assisted by video camera footage, confirmed that the appellant’s car had not been in the carpark of the Four Square store that morning. The forensic examination of the scene established that at the time the appellant made the emergency call at 10.46 am the fire must have already been well under way and would have been started some 12 to 15 minutes earlier, at a time that, according to the appellant, she was at home. In sentencing the appellant Judge Atkins said he considered that the jury was right to reject the appellant’s explanation as dishonest because it was apparent that at the time she claimed to have left her home the fire must already have been burning for some time.
Procedural background
[5]       The trial started on a Monday and ran for the week. On the Friday, Court commenced just after 9.30 am. The closing addresses of counsel were followed by the Judge’s summing up. The jury were sworn in and retired to consider their verdict at 12.34 pm. Between 6 and 7.05 pm the jury went to dinner.…

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 Gray

Details

AGLC: The Queen v Gray [2009] NZCA 438
Case: [2009] NZCA 438
Decision Date: 25 September 2009

CaseChat Overview and Summary

The appeal is from a conviction of arson following trial in the District Court at Palmerston North. The appellant was sentenced to imprisonment for two years six months (which included an uplift of three months to take account of the appellant’s guilty pleas on two fraud charges). The appellant appealed against her conviction and sentence on the arson charge. She has subsequently abandoned the appeal in relation to sentence. The appellant contended that the guilty verdict was unsafe because the jury deliberation was excessive, giving rise to jury fatigue, and that the Judge should not have sent the jury out together before conducting the poll.

The issues were whether the verdict was unsafe by reason of the process of deliberation and whether a poll was required and, if so, did the method adopted by the Judge render the poll unsafe or unreliable? The Court found there was no evidence of jury fatigue and no basis to infer that juror fatigue or improper pressure were factors in the verdict. The record did not disclose there was any obvious dissension among the jury when the verdict was returned and there was no need for a poll in the circumstances.

An extension of time to appeal was granted but the appeal against conviction was dismissed.

Orders