Van Der Lubbe v The Queen - [2014] NZCA 495

IN THE COURT OF APPEAL OF NEW ZEALAND

CA305/2013
[2014] NZCA 495

BETWEEN	JACOBUS VAN DER LUBBE Appellant
AND	THE QUEEN Respondent

Hearing:	9 September 2014
Court:	Ellen France P, MacKenzie and Andrews JJ
Counsel:	Appellant in person M J Lillico for Respondent
Judgment:	8 October 2014 at 2.15 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

The appellant, Jacobus van der Lubbe, was convicted after a jury trial of one count of threatening to do grievous bodily harm and one count of threatening to kill. Both charges relate to the same complainant. Mr van der Lubbe was fined $1,000 on each count by the trial Judge, Judge Cameron.[1] He appeals against conviction and sentence.
[1]R v van der Lubbe DC Wanganui CRI-2012-083-402, 29 April 2013.
The focus of the conviction appeal is on various ways in which Mr van der Lubbe says the trial Judge was biased against him so as to give rise to a miscarriage of justice. Mr van der Lubbe says the sentence is manifestly excessive. We deal with the conviction and sentence appeals after setting out the background.

Background – a dispute between neighbours

Mr van der Lubbe and his neighbour, Mr Poynter, live in Wanganui. Mr Poynter in his evidence said that part of his property was residential but “a good 85%” was rural. Mr van der Lubbe told us the properties were residential with a rural aspect.
As Judge Cameron said in sentencing, the background to the charges lies in Mr van der Lubbe’s ongoing dispute with Mr Poynter about Mr Poynter’s use of firearms on Mr Poynter’s property.[2] As a means of trying to resolve the dispute, an agreement was made whereby Mr Poynter would advise the police when he was about to use his firearms.
[2]At [2].
The Crown case was that on 3 August 2011, Mr Poynter advised the police of his intention to use a firearm. Mr van der Lubbe was not advised. Mr Poynter used his firearm. Mr van der Lubbe made a 111 call reporting the use of the firearm next door. When Mr van der Lubbe was told the police had been advised Mr Poynter was going to use his firearm, the following exchange took place:
VDL              That I am going to carry out my threat now, I am going [Mr van to buy my own firearm and I am going to use it to disable
der Lubbe]      my neighbour.
Comms          Well why would you do that?
VDL              Because, I, I’ve warned the Police already
Comms          Yes.
VDLand that’s what I’m going to do. You just convey that message to the Police in Whanganui, that’s what I’m going to do, alright?
CommsOkay, so you want to spend the rest of your life in jail just because someone’s
VDLThat doesn’t worry me, that doesn’t worry me, I’m sixty now and I’ve had a gutsful, I am going to buy a…

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 Van Der Lubbe v The Queen

Details

AGLC: Van Der Lubbe v The Queen [2014] NZCA 495
Case: [2014] NZCA 495
Decision Date: 8 October 2014 at 2.15 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Jacobus van der Lubbe appeals against his conviction and sentence for threatening to do grievous bodily harm and threatening to kill. The charges stem from a dispute between van der Lubbe and his neighbour, Mr Poynter, over the latter's use of firearms. Van der Lubbe argues that the trial judge was biased against him, leading to a miscarriage of justice, and that the sentence was manifestly excessive. The appeal focuses on whether the trial judge's directions to the jury regarding self-defence and provocation were correct and whether the sentence was appropriate.

The court first addresses van der Lubbe's contention that the trial judge was biased against him, particularly regarding the exclusion of self-defence as a possible defence and the relevance of provocation. The court found no merit in these arguments. The judge correctly ruled that self-defence was not applicable as van der Lubbe's actions were not in defence of himself or others but rather to provoke police action against his neighbour. Furthermore, the court upheld the judge's decision that provocation was irrelevant to the defence but could be considered at sentencing. The court also dismissed van der Lubbe's other claims of bias, such as the judge's handling of witness preparation and the failure to appoint counsel assisting, finding that these decisions did not indicate bias.

Regarding the sentence, the court found that the fines imposed were within the appropriate range. While van der Lubbe argued that provocation should have been considered more heavily in sentencing, the court determined that the fines of $1,000 for each conviction were justified given the nature of the offences and the available alternatives.

In conclusion, the appeal against both conviction and sentence was dismissed. The Court of Appeal found no grounds for the claims of bias and considered the sentence to be appropriate given the circumstances.

Orders