Tobin v R - [2020] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA678/2018
[2020] NZCA 66

BETWEEN	MAXWELL CHARLES DALLIMORE TOBIN Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2020 (further submissions received 12 March 2020)
Court:	Courtney, Ellis and Brewer JJ
Counsel:	Appellant in Person Z R Johnston for Respondent
Judgment:	19 March 2020 at 10.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.
B The conviction for wounding with intent to cause grievous bodily harm is quashed.
CA retrial is ordered.
DAny question of bail is to be dealt with in the District Court.
EThe record of the first warning given to the appellant by the District Court on 31 August 2018 is cancelled in respect of the conviction quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

In June 2016 there was an altercation between the appellant, Maxwell Tobin, and one of his neighbours, John Morris, that led to Mr Tobin being charged with wounding with intent to cause grievous bodily harm: Mr Tobin was sitting in his car and Mr Morris was standing at the driver’s window when Mr Tobin grabbed Mr Morris’ beard and drove off. Mr Morris sustained serious injuries (though there was a dispute at trial as to exactly how the injuries were caused). Mr Tobin was convicted and sentenced to four years and six months’ imprisonment.[1] He appeals his conviction.[2]
[1]R v Tobin [2018] NZDC 21467.
[2]Mr Tobin advised at the outset of the hearing that he did not wish to pursue his appeal against sentence.
The ground of appeal is that there has been a miscarriage of justice or the risk of a miscarriage of justice as a result of:[3]
(a)the police investigation being conducted improperly with the police forming the view that Mr Tobin was guilty prior to charging him;
(b)the police interview being conducted in breach of the New Zealand Bill of Rights Act 1990;
(c)the charging notice wrongly describing the location of the alleged offence;
(d)Mr Tobin being described in court documents in terms that mean he is a “corporation” and a notice should therefore have been filed under s 12 of the Criminal Procedure Act 2011;
(e)the lack of corroborative evidence or expert analysis to support Mr Morris’ account; and
(f)evidence regarding Mr Morris’ criminal history not being before the jury.
[3]Criminal Procedure Act 2011, ss 229 and 232.
An appellant who asserts a miscarriage of justice must show, first, an error or irregularity at trial and, secondly, that what went wrong led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty verdict may have been given if nothing had gone wrong.[4]
[4]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
There is no merit in grounds (a) and (b). Acknowledging Mr Tobin’s strong views about the way the police investigated the case, there is, nevertheless, no basis for concluding…

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 Tobin v R

Details

AGLC: Tobin v R [2020] NZCA 66
Case: [2020] NZCA 66
Decision Date: 19 March 2020 at 10.30 am

CaseChat Overview and Summary

Maxwell Tobin appeals against his conviction for wounding with intent to cause grievous bodily harm. The Court of Appeal found that there had been a miscarriage of justice due to errors in the trial judge's summing up of the evidence. The trial judge failed to adequately direct the jury on the defence of self-defence, which was raised by the defence. The summing up did not consider self-defence before considering the elements of the charge, which created a risk that the jury considered self-defence only after having concluded that the appellant had deliberately injured the victim. This meant that the jury was likely already predisposed to convict the appellant when it considered the defence of self-defence. The summing up also contained errors in the explanation of the principles of self-defence. The Court of Appeal quashed the conviction and ordered a retrial.

Orders