The Queen v Marshall - [2007] NZCA 583

IN THE COURT OF APPEAL OF NEW ZEALAND
CA381/07
[2007] NZCA 583
THE QUEEN
v
BRENDEN JOHN MARSHALL
Hearing:17 October 2007

Court:O'Regan, Chisholm and Potter JJ
Counsel:C W J Stevenson for Appellant

M F Laracy and R C Major for Crown

Judgment:17 December 2007 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Chisholm J)
Introduction
[1]       After a valuable sculpture had been stolen and a reward for its return had been offered, Mr Marshall contacted the owners (through a newspaper editor) about facilitating its return. In due course a reward was paid and the sculpture was returned. Subsequently the appellant was charged with, and convicted of, blackmail and receiving stolen goods (the sculpture). He was sentenced to community work.
[2]       In this appeal against conviction Mr Marshall alleges that the trial Judge, Simon France J, misdirected the jury about the essence of the defence case on each count, both legally and factually. He also alleges that the prosecutor improperly opened and closed to the jury about Mr Marshall’s alleged evasion of the police and that the absence of any direction from the trial Judge gave rise to a real risk that a miscarriage of justice has occurred.
Background
[3]       During the night of 6 October 2005 a large bronze sculpture valued at $250,000 was stolen from the front garden of a restaurant at Waikanae beach. After informing the police about the theft the owners, Margaret Mouat and Gavin Bradley, contacted various media outlets and indicated their willingness to pay a reward. Reward posters were also distributed. The owners had a reward of $6,000 in mind.
[4]       Shortly after the sculpture went missing the Kapiti Observer newspaper ran a story about the theft. When its editor, Diane Joyce, arrived at work on 18 October 2005 she found a telephone message for her to ring “Brenden” at a given telephone number. Ms Joyce spoke to Brenden (Mr Marshall) who indicated that although he had not stolen the sculpture, he knew who had it, and he could help to get it back. At that time Ms Joyce did not take the matter seriously.
[5]       Later the same day Mr Marshall rang back and said that he had pictures of the sculpture. Arrangements were made for him to meet with Ms Joyce. When they met the appellant showed Ms Joyce cam-recorded photographs of the sculpture. Again Mr Marshall was insistent that he had not stolen it and he agreed to meet with the owners of the sculpture.
[6]       At a meeting between Mr Marshall and the owners of the sculpture Mr Marshall reiterated that he had not been involved in the “burglary”. It was agreed that the owners would pay $6,000 on the basis that Mr Marshall would organise the return of the sculpture. Although Mr Marshall stipulated that the police were not to be involved, he said that he would be happy to talk to them after the exchange had taken place.

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 Marshall

Details

AGLC: The Queen v Marshall [2007] NZCA 583
Case: [2007] NZCA 583
Decision Date: 17 December 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Marshall involved an appeal against conviction by Brenden John Marshall. Mr Marshall was convicted of blackmail and receiving stolen goods, specifically a stolen sculpture, and was sentenced to community work. The appeal was dismissed by the Court, which found no misdirections by the trial judge and no miscarriage of justice. The case arose from the theft of a bronze sculpture valued at $250,000 from a restaurant at Waikanae beach. A reward was offered for its return, and Mr Marshall contacted the owners through a newspaper editor. He facilitated the return of the sculpture for a reward, but was subsequently charged and convicted. The appeal hinged on the assertion that the trial judge misdirected the jury on the defence case, both legally and factually, and that the prosecutor improperly commented on Mr Marshall's alleged evasion of the police. The Court of Appeal found that the trial judge's directions to the jury were comprehensive and appropriate, and that the prosecutor's comments did not result in a miscarriage of justice. The Court concluded that no misdirections had been established, and the appeal against conviction was dismissed.

Orders