The Queen v Nairn - [2008] NZCA 553

IN THE COURT OF APPEAL OF NEW ZEALAND
CA468/2008
[2008] NZCA 553
THE QUEEN
v
NATHAN SHANE NAIRN
Hearing:17 November 2008

Court:Arnold, Venning and Miller JJ
Counsel:B A Crowley for Appellant

T Epati and I E Murray for Crown

Judgment:12 December 2008 at.3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Arnold J)

Introduction
[1]        Following a jury trial before Gendall J, the appellant was convicted on two counts of aggravated robbery and two counts of kidnapping. He appeals against all convictions, on the basis of various aspects of the Judge’s summing up to the jury.
Factual background
[2]        The case against the appellant was that he, together with his partner, Ms Williams, was involved in two separate robberies of the Auckland and Wellington offices of a foreign exchange and currency company known as An Ying.
The Auckland robbery
[3]        It was alleged that on 15 November 2005 in the early afternoon the appellant and Ms Williams had gone to An Ying’s Auckland premises. The appellant was carrying a knife and Ms Williams a pistol-like firearm. When they entered the premises, Ms Williams pointed the gun at the receptionist while the appellant went through to the main office. The appellant went up to the main counter and, using his left hand as a prop, vaulted over it into the staff area. He took hold of one of the tellers, Ms Xing Zhao (Stella), and forced her to show him where the money was kept. He removed the contents of the cashier’s drawer (the equivalent of approximately NZ$100,000) and then vaulted back over the counter, again using his left hand as a prop. Several other staff members witnessed the robbery and it was recorded on CCTV.
[4]        The police later lifted a shoe print and left-hand palm and fingerprints from the counter where the robber had vaulted over into the staff area. The fingerprints were established to be those of the appellant.
[5]        The following day the appellant purchased a second hand motor vehicle for $5,810, which he paid in cash.
[6]        Three months later, on 16 February 2006, the appellant rented a room at the Hutt Park Holiday Camp for three nights. There was a disturbance and the owner called the police. While searching the appellant’s room, the police found NZ$1,000 in cash, an imitation firearm and some knives.
The Wellington robbery
[7]        On 30 June 2006 the Wellington premises of An Ying were robbed. The Crown alleged that the appellant and Ms Williams, together with two associates, carried out this robbery. The Crown said that the appellant was disguised, wearing sunglasses and a white painter’s mask, and that he was wearing gloves and carrying a pistol-like firearm. The other three were also disguised and were carrying knives.
[8]        Two of the robbers detained people in the peripheral offices while the appellant and another knife-wielding associate went into the An Ying office. The knife-wielding associate grabbed a customer, Ms Weiwei Zhang, and held…

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 Nairn

Details

AGLC: The Queen v Nairn [2008] NZCA 553
Case: [2008] NZCA 553
Decision Date: 12 December 2008

CaseChat Overview and Summary

The appeal by Nathan Shane Nairn against his convictions for two counts of aggravated robbery and two counts of kidnapping was dismissed by the New Zealand Court of Appeal. The appellant argued that the trial judge misstated the Crown's case, misstated the defence case, inappropriately criticised defence counsel, and gave erroneous directions on propensity evidence. The court found that although there were some inaccuracies in the summing up, none of these issues, individually or in combination, raised the possibility of a miscarriage of justice. The evidence against the appellant was strong, particularly in relation to the Auckland robbery where the presence of his palm prints on the counter was a significant factor. The court considered that the judge's directions to the jury on the use of propensity evidence were adequate, despite some room for clearer expression. Consequently, the appeal was dismissed, and the convictions were upheld.

Orders