The Queen v Walker - [2002] NZCA 153

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 82/02
CA 97/02

THE QUEEN

BARRY WALKER
AND
ANDRE TIPI-RANGI WAIKATO

Hearing:	17 June 2002
Coram:	Anderson J Williams J Paterson J
Appearances:	A J S Snell for Appellants R J Collins for Crown
Judgment:	27 June 2002

JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J

Issues

On 19 February 2002 following a lengthy trial in Napier the appellants were convicted by a jury on four counts of sexual violation by rape of a particular complainant, all those having occurred on 16 February 2001, plus a count of assault on the same complainant on the same day. Mr Waikato was also convicted on four counts of sexual violation by rape of the same complainant on 2 March 2001 and a further count of assaulting her on the same day.
During the jury’s retirement its members were observed by one of the defence counsel in an area outside the Napier courthouse to which the public can gain access. Two jurors were in discussion with the jury attendant for what counsel estimated was about ten minutes. When the jury returned to the jury-room, counsel immediately raised the matter with the trial Judge. He made the enquiries later detailed but declined to intervene further.
One of the grounds on which these appeals are brought is that the Judge was wrong not to intervene at that stage, discharge the jury and order a new trial.
On 1 March 2002 Mr Waikato was sentenced to 14 years imprisonment and Mr Walker to 9 years. Both accused appeal on the ground that those sentences were manifestly excessive.
Other grounds of appeal raised in Notices of Appeal were not pursued at the hearing.

Facts

Given the restricted grounds of appeal, it is necessary to do no more than outline the factual background.
According to the complainant, she and a friend went to a Hastings bar in the evening of 16 February 2001 and there met the accused. Mr Waikato was well-known to her as a long-term friend of her husband from whom she had recently separated. Mr Walker was known to her on a passing basis.
During the evening alcohol was consumed. The complainant left with the accused for them to drive her home. During the journey she became overcome with what she now believes were the effects of a stupefying drug administered in her drink. She was taken to a property to which the accused Mr Waikato had access and it was there she asserted that she was assaulted and then raped by both accused on a number of occasions during the night with Mr Walker assisting Mr Waikato on occasions.
Before Mr Waikato dropped her at her address the following morning he, in the presence of Mr Walker, threatened that if she disclosed what had occurred he or one of his associates would uplift her daughter from her school and something would happen to her, and they would do violence to her estranged husband.
On…

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 Walker

Details

AGLC: The Queen v Walker [2002] NZCA 153
Case: [2002] NZCA 153
Decision Date: 27 June 2002

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals from Barry Walker and Andre Tipi-Rangi Waikato against their convictions and sentences. Walker and Waikato were convicted of multiple counts of rape and assault against a complainant, with the crimes occurring on two separate occasions. Both appellants challenged both their convictions and the severity of their sentences. The central issue in the appeal regarding the convictions was whether the trial judge erred in not discharging the jury and ordering a new trial after it was observed that the jury escort was in conversation with two jurors during their retirement. The appellants argued that the jury escort's actions potentially influenced the verdict and exposed other jurors to contamination, violating the principles that justice must be seen to be done.

The Court of Appeal considered relevant case law, including R v Coombs and R v Bates, which established that a suspicion of misconduct must be based on reasonable grounds and that there must be a perceived risk of injustice for a new trial to be ordered. The Court noted that while the jury escort's conduct was imprudent, the trial judge made an appropriate inquiry, found no improper discussion regarding the trial, and reasonably decided not to intervene. The Court held that the concerns raised were speculative and showed no perceived risk of injustice to the appellants. Therefore, the appeals against conviction were dismissed.

Regarding the sentences, Walker's appeal argued that his nine-year imprisonment term was manifestly excessive. The Court found that the sentence was within the appropriate range, taking into account the starting point and the lack of substantial mitigating factors. For Waikato, the appeal contested the 14-year imprisonment sentence as manifestly excessive. The Court concluded that the sentence was within range, considering the nature of the crimes, the absence of significant mitigating factors, and the appellant's history of violent convictions. Hence, both appeals against sentence were dismissed.

In summary, the Court of Appeal dismissed all appeals against both convictions and sentences, upholding the trial judge's decisions.

Orders