Timothy Joseph Foley v The Queen - [2018] NZSC 57

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 29/2018
[2018] NZSC 57

BETWEEN	TIMOTHY JOSEPH FOLEY Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person M J Lillico for Respondent
Judgment:	21 June 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant had a somewhat turbulent sexual relationship with his next-door neighbour Ms Lawrence. On 4 June 2012, he was issued with a trespass notice by the police at her request. Despite this, five days later on the night of 9 June 2012 he went to her apartment. At 1.08 am the next morning he made a 111 call. In the course of this, he told the operator that he had given Ms Lawrence “a couple of hits over the head” with a metal bar and that she was unconscious and bleeding seriously. The 111 call ended at 1.13 am with ambulance and police officers arriving shortly after at 1.18 am and 1.20 am respectively. When they went into the apartment, they found Ms Lawrence alone in a pool of blood with life-threatening head injuries from which she later died. These injuries were consistent with her assailant having used a metal bar to assault her.
As will be apparent, the applicant had left Ms Lawrence’s apartment prior to the arrival of the ambulance officers. He spent the rest of the morning at a friend’s house. On the Crown case, the applicant told his friend that he had “banged” Ms Lawrence with a jemmy which he had in his possession and which he showed his friend. Later that morning, the applicant handed himself into the police. He told the police that he had hit Ms Lawrence over the head twice with a garden gnome which he had later disposed of in a river.
The case against the applicant did not come on for trial until February 2015. A contributing factor to the delays was the applicant changing counsel from time to time. By this stage – that is February 2015 – the applicant had it in mind to run a defence along the lines that: (a) he had struck Ms Lawrence with a garden gnome twice sometime prior to 1.08 am (which was when he initiated the 111 call); (b) he then left the flat; and (c) after he had done so, a third person, whom he suspected to be a Mr T (also a neighbour of Ms Lawrence), had entered her apartment and inflicted the fatal injuries using a metal bar and then left prior to the arrival of the ambulance officers at 1.18 am.
This defence involved tight timing and a strange coincidence:
(a)The applicant made the 111 call on Ms Lawrence’s cell phone. When interviewed by the police on 10 June 2012, the applicant said that he was in the apartment after the call had ended. The remarks made by the applicant in the course of the…

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.

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Details

Case: [2018] NZSC 57
Decision Date: 21 June 2018

CaseChat Overview and Summary

The case involves Timothy Joseph Foley, the applicant, seeking leave to appeal against his conviction and sentence for murder, with The Queen as the respondent. Foley was convicted for the murder of his neighbour, Ms. Lawrence, who was found with fatal head injuries after Foley had admitted to assaulting her with a metal bar. Foley had initially pleaded guilty but later sought to withdraw his plea, which was dismissed by both the High Court and the Court of Appeal.

The legal issues before the Supreme Court centred on whether there was sufficient grounds for the Court to grant leave to appeal. Foley argued that there was a tenable defence that a third party had entered the apartment and inflicted the fatal injuries after Foley had left. The Court had to assess whether there was any miscarriage of justice or error in law that warranted an appeal. The Court also considered the timing and feasibility of Foley's proposed defence involving a third party, given the tight timeframe between Foley's departure and the arrival of emergency services.

In dismissing the application for leave to appeal, the Court found that the timing of events was tightly constrained and the proposed defence involving a third party was highly improbable. The Court upheld the decisions of the lower courts, finding no miscarriage of justice or error in law. The Court concluded that the case did not present any question of public or general importance but rather involved the application of well-settled principles to the specific facts of the case.

The final orders of the Court were that the application for leave to appeal was dismissed.

Orders