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The Queen v Rogers

The Queen v Rogers

Case [2009] NZCA 387 3 September 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA207/2009
[2009] NZCA 387
THE QUEEN
v
COLIN WILLIAM ROGERS
Hearing:28 July 2009

Court:Baragwanath, Hugh Williams and Winkelmann JJ
Counsel:H D M Lawry for Applicant

M A Woolford for Crown

Judgment:3 September 2009 at 2.30pm

JUDGMENT OF THE COURT

THE APPLICATION FOR EXTENSION OF TIME TO APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
Table of Contents

Para No

FACTUAL CONTEXT  [3]
PROVOCATION  [7]
            THE AUTHORITIES  [8]
THE STATEMENT  [19]
DISCUSSION  [28]
INTOXICATION  [40]
CUMULATIVE EFFECT OF UNSATISFACTORY EVENTS  [47]
            “HE WENT INSIDE”  [48]
Intervention from gallery  [51]
            Glue sniffing  [52]
            Applicant’s pulling a knife from a sock and using it to chase
  Ms Tahana  [54]
            Inattentive juror  [58]

APPENDIX
[1] The applicant Colin William Rogers was convicted and on 8 April 2008 sentenced to life imprisonment with a minimum non parole period of 11 years for the murder of his de facto partner Angela Rangi Hauta Tahana. A year later, on 17 April 2009, he filed application for leave to appeal against conviction out of time.
[2] The arguments advanced for the applicant were:
(a)The trial Judge, Priestley J, failed adequately to direct the jury on the topic of intoxication;
(b)The Judge erred in failing to leave the partial defence of provocation to the jury;
(c)There was a miscarriage of justice because of the cumulative effect of events because:
(i)a Crown witness referred to the applicant’s “going inside” and so alluding to his having been in prison;
(ii)during the trial a member of the family of the deceased began to scream and was removed from the public gallery;
(iii)a witness said the applicant was sniffing glue;
(iv)evidence was given of the applicant’s pulling from his sock a knife which, was not the murder weapon, and chasing the deceased at a stage shortly prior to the killing;
(v)a member of the jury fell asleep for what counsel for the applicant said he was instructed was approximately 20 minutes.

A further point, that during the playing of the police interview a juror complained that the sound could not be heard, was abandoned.
Factual context
[3] Ms Tahana was 34 years old and the applicant almost the same age. They had been living together for some three weeks. The death occurred in Ms Tahana’s house at Mangere where she had been drinking. The applicant arrived and was followed by other family members. In his sentencing remarks, the Judge found that a considerable volume of alcohol had been consumed by both Ms Tahana and Mr Schutt (referred to as “Eddie” or “Steads”). The applicant had a recording of 39 milligrams of alcohol per 100 millilitres of blood when a sample was taken some nine hours after Ms Tahana’s death. It was unclear what the applicant’s alcohol level would have been at the time of the killing.
[4] The applicant’s police statement contains passages bearing on both intoxication and provocation. “Pete” is Mr Moetara. Both he and Eddie suffer from mild intellectual…

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 Rogers

Details

AGLC: The Queen v Rogers [2009] NZCA 387
Case: [2009] NZCA 387
Decision Date: 3 September 2009

CaseChat Overview and Summary

Colin William Rogers was convicted and sentenced to life imprisonment with a minimum non parole period of 11 years for the murder of his de facto partner Angela Rangi Hauta Tahana. He applied for leave to appeal against conviction out of time on the basis that the trial Judge, Priestley J, failed adequately to direct the jury on the topic of intoxication, the Judge erred in failing to leave the partial defence of provocation to the jury, and there was a miscarriage of justice because of the cumulative effect of events. The Court of Appeal dismissed the application for extension of time to appeal. The Court found that the Judge was correct in not leaving the partial defence of provocation to the jury. The Court found that the Judge was correct in directing the jury on the relevance of intoxication in relation to the accused's intent to kill and knowledge of likelihood of causing death. The Court found that none of the five challenged events taken individually or in the aggregate amounted to a miscarriage of justice.

Orders