Tobin v The the Queen - [2022] NZCA 226

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA749/2021
[2022] NZCA 226

BETWEEN	MAXWELL CHARLES DALLIMORE TOBIN Appellant
AND	THE QUEEN Respondent

Court:	Miller, Clifford and Collins JJ
Counsel:	Appellant in person A J Ewing for Respondent
Judgment: (On the papers)	7 June 2022 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction. The High Court is the first appeal court for this appeal.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

This judgment addresses two issues for Mr Tobin’s appeal: one of jurisdiction, the other evidence.

Background

In 2018 Mr Tobin was convicted of wounding with intent to cause grievous bodily harm and sentenced to four years and six months’ imprisonment. In March 2020 Mr Tobin successfully appealed his conviction in this Court.[1] Whilst the Court did not uphold any of Mr Tobin’s six challenges to his conviction, it found that the District Court Judge had not properly instructed the jury on self-defence, a defence Mr Tobin’s counsel in the District Court had put squarely before the jury.
[1]Tobin v R [2020] NZCA 66.
Allowing the appeal this Court ordered a retrial. At the commencement of his retrial on 29 November 2021 the Crown reduced the charge Mr Tobin faced to one of causing injury with reckless disregard for safety. After discussing the matter with standby counsel appointed by the Court, Mr Tobin entered a plea of guilty to that charge.
Judge McDonald, in his sentencing notes of 29 November 2021, described Mr Tobin’s offending as follows:[2]
[3]       You and Mr Morris had known each other prior to this offending for approximately four years. You were neighbours. Sometime prior to 11 June 2016, you had become increasingly agitated, as I am sure your wife was as well, with Mr Morris’ 11 dogs continuously barking when he was away. Your wife posted a message on Facebook accusing Mr Morris of animal abuse.
[4]       On 11 June 2016, Mr Morris became aware of the posting on Facebook. You and your wife were at home. He had been at a friend’s place. He became upset with the comments that were on Facebook. He drove home to check on his dogs. Instead of driving to his home, however, he pulled into your driveway and deliberately drove past your house, before stopping on the road. He yelled out in your direction: “Be careful, be very,” as I am told and accept by Mr Moroney, he said: “Be very fuckin careful.” Mr Morris then drove back to his home.
[5]       You have heard him yelling, so you went outside to investigate. There was no sign of Mr Morris. You went back in, grabbed a battery for your Land Rover, which was parked in your driveway. Your Land Rover is an old vehicle which is used around the farm. It has no roof. You crash started your vehicle and then drove to Mr Morris’ home. You pulled up into 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.

Continue reading Tobin v The the Queen

Details

AGLC: Tobin v The the Queen [2022] NZCA 226
Case: [2022] NZCA 226
Decision Date: 7 June 2022 at 10.30 am

CaseChat Overview and Summary

Maxwell Charles Dallimore Tobin appealed against his conviction and sentence, arguing he was coerced into pleading guilty to an impossible story, that he pleaded guilty knowing he could appeal, that the sentencing judge refused to consider facts in support of his complaints about the relevant police constable, and that Mr Morris was known to be a member of the local motorcycle riders club with a history of unpredictable violence. The Court of Appeal was required to decide whether it had jurisdiction to hear the appeal and whether the evidence provided by Mr Tobin was relevant to his appeal. The Court of Appeal held that it did not have jurisdiction to hear Mr Tobin’s appeal, as the High Court is the first appeal court for this appeal, and it was not appropriate for the Court of Appeal to offer its view on the video evidence. The appeal was dismissed for want of jurisdiction. The High Court is the first appeal court for this appeal.

Orders