The Queen v Nevin - [2008] NZCA 16

IN THE COURT OF APPEAL OF NEW ZEALAND
CA535/07
[2008] NZCA 16
THE QUEEN
v
TIMOTHY JUSTIN NEVIN
Hearing:14 February 2008

Court:Ellen France, Williams and Heath JJ
Counsel:P J Davey for Appellant

H D M Lawry for Crown

Judgment:21 February 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]       Mr Nevin was tried in the High Court at Auckland, before Courtney J and a jury, on charges arising out of two incidents, each involving a female complainant.
[2]       The Crown brought charges against Mr Nevin alleging that, on 27 December 2005 at Waiheke Island, he had possession of an offensive weapon (a knife) and that he used it to assault the first complainant. The Crown also contended that Mr Nevin had unlawfully detained the first complainant and threatened to kill her. Not guilty pleas were entered to all four charges.
[3]       The remaining four charges arose out of an incident on 15 March 2006, on the Auckland isthmus. The charges related to the second complainant and were almost identical in nature; the only difference being that the Crown alleged that Mr Nevin threatened to cause grievous bodily harm to the second complainant, as opposed to threatening to kill. Not guilty pleas were entered on those charges as well.
[4]       During the trial, Mr Nevin entered guilty pleas to the four charges stemming from the March 2006 incident. On the Waiheke Island charges, the jury found Mr Nevin guilty of assault with a weapon and unlawful possession of an offensive weapon. The jury returned not guilty verdicts on the kidnapping and threatening to kill charges.
[5]       Mr Nevin appeals against the convictions entered as a result of the two guilty verdicts. No appeal is brought against sentence. The sole ground of appeal is that the guilty verdicts were unreasonable. It is contended that the guilty verdicts were inconsistent with the not guilty verdicts. Reliance was placed on the circumstances in which the jury came to deliver their verdicts.
The facts in outline
[6]       No more than a brief outline of relevant facts is required. In summary:
(a)Mr Nevin and the first complainant were in a relationship. Over the Christmas period in 2005, they were staying at a property on Waiheke Island.
(b)During their stay, an incident occurred, in the course of which the complainant said she was assaulted with a knife by Mr Nevin.
(c)On the complainant’s evidence, Mr Nevin had a knife which he used to threaten her in a manner that amounted, legally, to an assault. She went on to say that Mr Nevin threatened to kill her, saying that he intended to “watch the blood drip from her throat”.
(d)The first complainant also alleged that, during the course of the incident, Mr Nevin stabbed furniture and tied up her hands with a stocking. She said that she was held in that situation for five to seven hours.

Competing submissions
[7] Mr Davey,…

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 Nevin

Details

AGLC: The Queen v Nevin [2008] NZCA 16
Case: [2008] NZCA 16
Decision Date: 21 February 2008

CaseChat Overview and Summary

The case of The Queen v Nevin is an appeal against conviction brought by the appellant, Timothy Justin Nevin, against charges arising from two separate incidents. The first incident involved the appellant's possession of an offensive weapon and assault on a female complainant on Waiheke Island, and the second incident occurred on the Auckland isthmus and involved almost identical charges against a different female complainant. The appellant was found guilty of assault with a weapon and unlawful possession of an offensive weapon, but not guilty of kidnapping and threatening to kill. The appellant's appeal is based on the claim that the guilty verdicts were unreasonable and inconsistent with the not guilty verdicts, and that the jury's verdicts were the result of an improper compromise. The court was required to determine whether the verdicts were unreasonable and whether there was a miscarriage of justice.

The Court of Appeal found that the verdicts were not unreasonable and dismissed the appeal against conviction. The court held that there was a reasonable basis on which the jury could have found the appellant guilty of the possession and use of the weapon charges, but not convinced beyond reasonable doubt of the balance of charges. The court also found that the circumstances surrounding the jury's deliberations did not indicate that the guilty verdicts were the result of an improper compromise. The court held that the evidence disclosed a reasonable basis on which the jury could accept part (but not all) of the complainant's evidence, and that the jury's approach in rejecting other parts of the complainant's evidence was captured by the trial judge's reference to "the more extreme allegations made against" the appellant. Therefore, the court dismissed the appeal against conviction.

In conclusion, the Court of Appeal dismissed the appellant's appeal against conviction, finding that the guilty verdicts were not unreasonable and that there was no miscarriage of justice. The court held that there was a reasonable basis on which the jury could find the appellant guilty of the possession and use of the weapon charges, but not convinced beyond reasonable doubt of the balance of charges. The court also found that the circumstances surrounding the jury's deliberations did not indicate that the guilty verdicts were the result of an improper compromise.

Orders