The Queen v Selwyn - [2007] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND
CA309/06
[2007] NZCA 123
THE QUEEN
v
TIMOTHY SELWYN
Hearing:22 February 2007

Court:William Young P, Randerson and Harrison JJ
Counsel:M A Edgar for the Appellant
M D Downs for the Crown

Judgment:4 April 2007 at 4pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1]       Mr Timothy Selwyn appeals against his conviction on one charge of sedition following trial before a jury in the District Court at Auckland on 8 June 2006. He also appeals against a sentence of 17 months imprisonment imposed by Judge Bouchier upon his contemporaneous conviction for 13 dishonesty offences and for sedition.
[2]       The grounds advanced by Mr Mark Edgar, Mr Selwyn’s counsel, in support of the appeal against conviction are that, first, the verdict cannot be supported by the evidence and, second, the trial Judge erred in law when directing the jury on the meaning of sedition.
District Court
[3]       The relevant facts fall within a relatively narrow compass, and are not now in dispute.
[4]       On 18 November 2004 an axe was left embedded in the window of the electorate office of the Prime Minister, the Rt Hon Helen Clark, on Sandringham Road, Auckland. A pamphlet found nearby was created and printed on a computer at Mr Selwyn’s property about 3.00 am that day. Emails generated by his computer showed his increasing agitation about the passage of the Foreshore and Seabed legislation which was subsequently enacted by Parliament.
[5]       At about 6.00 am on 18 November 2004 Mr Selwyn, calling anonymously, made several calls from a pay phone on Ponsonby Road to media organisations. He alerted them to the event at the Prime Minister’s office and invited them to an address in Ponsonby Road where more pamphlets were available.
[6]       The Crown charged Mr Selwyn with two counts of sedition. Count 1 alleged that on or about 18 November 2004 he published a statement in the Sandringham Road pamphlets that expressed a seditious intention, namely an intention to encourage lawlessness or disorder, as follows:
Tonight concerned Pakeha vented their anger and disgust at the Government’s attempts to steal by confiscation and without consultation, Maori land in the form of the Foreshore and Seabed Bill by attacking the electorate office of the Prime Minister. The broken glass symbolises the broken justice of this issue and we call upon other like-minded New Zealanders to commit their own acts of civil disobedience to send a clear message that such injustice can never be accepted!

[7] Count 2 alleged the same offence arising from Mr Selwyn’s publication of this statement in the Ponsonby Road pamphlets:
Confiscation Day
This morning concerned Pakeha vented their anger and disgust at the Government’s attempts to steal, by confiscation, Maori land in the form of the Seabed and Foreshore Bill that is currently being disgracefully rammed through Parliament as part of a desperate back-room deal.
By attacking the electorate office…

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 Selwyn

Details

AGLC: The Queen v Selwyn [2007] NZCA 123
Case: [2007] NZCA 123
Decision Date: 4 April 2007

CaseChat Overview and Summary

Timothy Selwyn appeals his conviction on one count of sedition and the sentence imposed for this and other offences. The appeal against conviction is based on the argument that the verdict was not supported by the evidence and that the trial judge misdirected the jury on the meaning of sedition. The appeal against sentence claims that the 17-month imprisonment sentence, including two months for sedition, was manifestly excessive. The Court of Appeal found that the trial judge's omission to explicitly direct the jury on the need to prove an intention to encourage violence as an essential element of the crime of sedition was material. However, given the narrow compass of the facts and the explicit encouragement to violent action in the pamphlet, the Court of Appeal concluded there was no appreciable risk of a miscarriage of justice. The appeals against conviction and sentence were dismissed.

The final orders of the Court of Appeal are that Mr Selwyn's appeals against conviction and sentence are dismissed.

Orders