The Queen v Templeton - [2006] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND
CA460/05
CA480/05
CA484/05
THE QUEEN
v
MICHAEL FRANK TEMPLETON
LIAM THOMAS ROCHE
TODD GORDON BROOKING
Hearing:27 June 2006

Court:Glazebrook, John Hansen and Potter JJ
Counsel:L C Rowe for Templeton and Roche

O S Winter for Brooking
A Markham and M Inwood for Crown

Judgment:6 July 2006

JUDGMENT OF THE COURT

ATHE APPEALS OF MR TEMPLETON AND MR ROCHE AGAINST CONVICTION ARE DISMISSED.
BThe appeals of all appellants against sentence are dismissed.

____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Table of Contents
Para No

Introduction  [1]
Charges             [2]
Sentences             [7]
Background             [8]
Appeal against conviction by Mr Templeton and Mr Roche                 [12]
Juror issue             [14]
Submissions   [26]
         Discussion           [32]
Counsel incompetence - Mr Templeton             [37]
Discussion                   [47]
Conclusion              [58]
Appeals against sentence             [59]
Mr Brooking  [63]
         Mr Templeton  [82]
         Mr Roche                     [87]
Result             [89]
Introduction
[1]       Mr Templeton and Mr Roche appeal against conviction and sentence. Mr Brooking appeals against sentence but reserves leave to appeal against conviction out of time if the appeals of Mr Templeton and Mr Roche against conviction succeed on grounds that apply to Mr Brooking.
Charges
[2]       The three appellants were charged as parties under s 66(2) Crimes Act 1961.
[3]       On the morning the trial commenced (3 October 2005) Mr Brooking entered guilty pleas to the following charges:
Count 1 – unlawful possession of a firearm (.22 calibre Stirling sawn-off rifle)
Count 2 – unlawful possession of a firearm (.22 calibre Anshuntz rifle)
Counter 3 – unlawful possession of explosives (ammunition)
Count 4 – possession of offensive weapon (Samurai sword)
Count 5 – possession of an offensive weapon (knife)
Count 6 – possession of an offensive weapon (baseball bats)
Count 7 – possession of disabling substance (pepper spray). (Only Mr Brooking charged).

[4] He proceeded to trial with Mr Templeton and Mr Roche on two further charges:
Count 8 – discharge of firearm with intent to do grievous bodily harm;
Count 9 – discharge of firearm with reckless disregard of safety.

[5]       Following trial by jury all three appellants were acquitted on Count 8 and convicted on Count 9. The jury was hung on Count 5 and Mr Templeton and Mr Roche were discharged on that count.
[6]       Mr Templeton and Mr Roche were also convicted on Counts 1, 2, 3, 4, and 6. They were not charged with Count 7.
Sentences
[7]       Mr Brooking was subsequently sentenced to four and a half years imprisonment cumulative on a sentence of three years eight months imprisonment imposed in respect of drug related charges, resulting in a total sentence of eight years two months imprisonment.
Mr Templeton was sentenced to four years imprisonment.
Mr Roche was sentenced to three years imprisonment.
Background
[8]       On the evening of Tuesday 11 May 2004 the three appellants, in the company of a fourth unidentified man, travelled to Apiti near Fielding in Mr Brooking’s white van. The purpose of the trip was to exact revenge on an Apiti resident, Mr Leon…

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 Templeton

Details

AGLC: The Queen v Templeton [2006] NZCA 158
Case: [2006] NZCA 158
Decision Date: 6 July 2006

CaseChat Overview and Summary

The Queen has appealed against the acquittal of three appellants, Michael Frank Templeton, Liam Thomas Roche, and Todd Gordon Brooking, on a charge of discharging a firearm with intent to do grievous bodily harm. The appellants have appealed against their convictions on the charge of discharging a firearm with reckless disregard for safety, and against the sentences imposed on them. The Court of Appeal dismissed the appeal against conviction and the appeals against sentence. The appellants were part of a group that travelled to Apiti, Fielding, to exact revenge on an Apiti resident, Mr Leon Chauval, in relation to the suspected theft of cannabis. They were armed with weapons including rifles, ammunition, a samurai sword, and baseball bats. Shots were fired at Mr Chauval's house, and the appellants' van was pursued by Mr Chauval and a neighbour, Mr Lawler, in a Holden Commodore. The van then turned around and shots were fired at the Commodore. The appellants jettisoned various items including weapons and ammunition as they were pursued by Police. The jury acquitted the appellants on the charge of discharging a firearm with intent to do grievous bodily harm, but convicted them on the charge of discharging a firearm with reckless disregard for safety. The appellants were also convicted on various other charges. The appellants argued that there was a miscarriage of justice because a juror had made his own inquiries about the law. However, the Court of Appeal found that the trial Judge had dealt with the issue promptly by issuing two clear directions to the jury. The appellants also argued that their trial counsel had been incompetent in not calling them to give evidence at their trial. However, the Court of Appeal found that the decision not to call the appellants was a reasonable one and did not result in a miscarriage of justice. The appellants further argued that their sentences were manifestly excessive. However, the Court of Appeal found that the sentences were not manifestly excessive in all the circumstances of the case.

Orders