Tony Douglas Robertson v The Queen - [2017] NZSC 101

IN THE SUPREME COURT OF NEW ZEALAND

SC 43/2017
[2017] NZSC 101

BETWEEN	TONY DOUGLAS ROBERTSON Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Glazebrook and Ellen France JJ
Counsel:	S N B Wimsett for Applicant M L Wong for Respondent
Judgment:	4 July 2017

JUDGMENT OF THE COURT

AThe application for an extension of time to file the application for leave is granted.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Robertson was convicted after trial of the rape and murder of Blesilda Gotingco. Mr Robertson hit Mrs Gotingco with his car. He took her to his home where she was raped and then stabbed. Mr Robertson appealed unsuccessfully against his conviction and sentence to the Court of Appeal.[1] He now seeks leave to appeal against conviction to this Court out of time on a ground not raised in the Court of Appeal, namely, that manslaughter should have been left to the jury.

Background

[1]Robertson v R [2016] NZCA 99 (Harrison, Miller and Cooper JJ).

The essential features of the Crown case for these purposes were as follows: Mr Robertson deliberately ran down Mrs Gotingco; he wanted to “pinion” her to take her home and rape her; she was alive when she was raped and then stabbed (and had to be subdued); and the knife wounds resulted in her death.
Mr Robertson gave evidence at trial. He said the running down was accidental. His evidence was that he thought that the car accident had killed Mrs Gotingco. He panicked because he was concerned about breaching the curfew conditions on his electronically monitored bail and he was high on methamphetamine. He said he stabbed Mrs Gotingco to make it look like a random killing and he never raped her. He gave as the explanation for his semen being found in Mrs Gotingco’s vagina that either evidence had been mishandled or planted.

The proposed appeal

The application for leave is advanced on two bases. First, that the proposed appeal raises a question of general or public importance about when directions on manslaughter must be given in murder cases. Second, it is submitted that a substantial miscarriage of justice may occur because there was no direction as to the availability of a manslaughter verdict.
In relation to the latter point, the applicant says the jury could reasonably be satisfied he was guilty of manslaughter and not murder on the basis that he committed an unlawful act without murderous intent either by hitting Mrs Gotingco with his car and/or by stabbing her. He submits either or both events may have been found by the jury to be significant and operating causes of death. On the second possibility, the unlawful act relied on is an attempt to improperly interfere with human remains.[2]

Assessment

[2]An offence under s 150 of the Crimes Act 1961.

In assessing whether the criteria for leave[3] are met it is relevant to note, first, that the effect of the authorities is that, where there is…

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: [2017] NZSC 101
Decision Date: 4 July 2017

CaseChat Overview and Summary

Tony Douglas Robertson sought leave to appeal against his conviction for the rape and murder of Blesilda Gotingco, who he ran down with his car, transported to his home, raped, and then stabbed to death. Robertson's appeal against conviction and sentence to the Court of Appeal was unsuccessful. He now seeks leave to appeal to the Supreme Court out of time on a ground not raised in the Court of Appeal, that manslaughter should have been left to the jury. The Court was required to decide whether the proposed appeal raises a question of general or public importance and whether a substantial miscarriage of justice may occur because there was no direction as to the availability of a manslaughter verdict. The Court found that the effect of the authorities is that, where there is a credible or plausible narrative in the evidence for a manslaughter verdict, that possibility should be left to the jury, however, nothing raised by the applicant suggested such a narrative was present in this case. The Court found that the jury were directed to first decide if the stabbing was a cause of death, and they answered this question affirmatively, which means that they were satisfied that Robertson knew Gotingco was alive because they were directed to decide whether or not they were sure he meant to kill her. That assessment is necessarily also inherent in the guilty verdict on the rape charge. The Court found that there is no risk of a miscarriage of justice. The application for leave is well out of time but the delay is largely explained, so the application for an extension of time to file the application for leave is granted. The application for leave to appeal is dismissed.
The Court orders that the application for an extension of time to file the application for leave is granted, and the application for leave to appeal is dismissed.

Orders