The Queen v Noble - [2009] NZCA 507

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA633/2008
[2009] NZCA 507
THE QUEEN
v
DEAN NOBLE
Hearing:23 September 2009

Court:O'Regan, Venning and Winkelmann JJ
Counsel:B J Hart and H D M Lawry for Appellant

M D Downs for Crown

Judgment:23 October 2009 at 11.30 am

JUDGMENT OF THE COURT

A            The appeal against sentence is dismissed.
B            The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]        Following trial in the District Court at Christchurch before Judge Crosbie and a jury the appellant was convicted on three counts of sexual violation and one of assault. Because of the nature of the offending and the appellant’s previous record the sentencing was transferred to the High Court for preventive detention to be considered. Chisholm J imposed a sentence of 11 years’ imprisonment with a minimum non-parole period of seven years.
[2]        The appellant lodged appeals against both conviction and sentence. During the course of the hearing counsel confirmed that the appellant no longer pursued the appeal in relation to sentence. We formally dismiss it.
Background
[3]        In March 2005 the appellant was sentenced to imprisonment for six years 10 months on a number of serious charges. While serving that sentence, and particularly between 18 April and 15 May 2005, the appellant shared a cell with the complainant at Paparoa Prison. One night after lockdown the appellant held the complainant down, struck him on the head and then raped him anally. The next day the appellant asked to see the unit manager about a banking matter. While with the manager he also asked to be moved but, as he refused to give a reason, his request was declined. On a later occasion the appellant forced the complainant to perform oral sex on him as well as anally raping him again. The appellant also assaulted the complainant following a dispute about some books.
[4]        The complainant was subsequently shifted from the appellant’s cell. Just prior to his release from prison in 2007 he reported the offending to the police. The appellant was spoken to. He denied the incidents occurred and said the complainant had made the allegations up.
[5]        The appellant did not give evidence at trial. He relied upon the statement he had made to the police.
Grounds of appeal
[6]        The appellant raises the following grounds in support of his appeal against conviction:
(a)the Judge’s directions to the jury as to the use of prior inconsistent statements was incorrect;
(b)trial counsel, Mr Ruth failed to call two prison officers, Messrs French and Austin as witnesses as instructed by the appellant;
(c)Mr Ruth breached the obligations he owed the appellant arising from the fact he had previously acted for the complainant;
(d)Mr Ruth placed undue pressure on the appellant to dissuade him from giving evidence;
(e)there is fresh evidence from two new witnesses, Darrell Moses and Troy Wells,…

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 Noble

Details

AGLC: The Queen v Noble [2009] NZCA 507
Case: [2009] NZCA 507
Decision Date: 23 October 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed both the appeal against conviction and the appeal against sentence for Dean Noble. Noble was convicted of three counts of sexual violation and one of assault following a trial in the District Court. Due to the nature of the offending and Noble's previous record, the sentencing was transferred to the High Court for consideration of preventive detention. Chisholm J imposed a sentence of 11 years' imprisonment with a minimum non-parole period of seven years. Noble appealed both his conviction and sentence, but later withdrew the appeal against sentence.

The Court found that while the trial judge's direction to the jury on the use of prior inconsistent statements was in error, it did not disadvantage Noble or affect the result of the trial. The Court also found that Noble's trial counsel did not err in deciding not to call certain prison officers as witnesses, as Noble had ultimately accepted the counsel's advice on the matter. Furthermore, the Court held that Noble's trial counsel did not improperly pressure him into not giving evidence, as Noble had ultimately accepted the counsel's advice on the matter. Finally, the Court found that new evidence from two former prison inmates, Darrell Moses and Troy Wells, was not sufficiently credible to warrant a new trial.

The appeal against conviction and the appeal against sentence were both dismissed.

Orders