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Wallace v R

Wallace v R

Case [2010] NZCA 46 3 March 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA590/2007
[2010] NZCA 46
BETWEENMICHAEL SCOTT WALLACE

Appellant

ANDTHE QUEEN

Respondent

Hearing:29 and 30 September 2009

Court:Glazebrook, Hammond and Ellen France JJ
Counsel:G J King and C W J Stevenson for Appellant

J C Pike and N P Chisnall for Respondent

Judgment:3 March 2010 at 10 am

JUDGMENT OF THE COURT

A           The application to adduce further evidence is dismissed.
B           The appeal against conviction is dismissed.
C           The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Hammond J)
Table of Contents

Para No

INTRODUCTION  [1]
THE GENERAL NARRATIVE  [5]
THE TRIAL EVIDENCE
(I)     THE CROWN EVIDENCE  [16]
THE VEHICLE  [17]
                  PLACES  [18]
                  PERSONAL ITEMS  [20]
                  FORENSIC EVIDENCE  [21]
                  TIMINGS  [22]
                  PEOPLE  [23]
(II)     THE DEFENCE EVIDENCE  [24]
THE DNA EVIDENCE AT TRIAL  [26]
        THE EVIDENCE  [27]
THE DEFENCE CASE WITH RESPECT TO THIS EVIDENCE AT TRIAL  [34]
THE CROWN USE OF THE NOW CONTESTED DNA EVIDENCE AT TRIAL                 [37]
         THE JUDGE’S SUMMING UP ON THE DNA EVIDENCE AT TRIAL[41]
THE OVERALL POSITION AT TRIAL  [42]
THE APPELLANT’S GROUNDS OF APPEAL: SOMETHING OLD, SOMETHING NEW        [46]

Counsel incompetence  [53]
Change of venue  [54]
Not giving evidence  [57]
Not following instructions  [59]
Failure to challenge the Crown evidence  [60]

The fingerprint evidence  [63]
The impugned DNA evidence
Introduction  [77]
What is being contended for here?  [89]
The particular problem in this case  [101]
The implications of Reed & Garmson for this case  [106]
Application of the legal standard for fresh evidence  [113]

In any event: a miscarriage of justice? [116]

The sentence appeal  [119]
Conclusion  [128]
Introduction
[1]        Following his trial before Cooper J and a jury in the High Court at New Plymouth the appellant, Michael Scott Wallace, was found guilty of murdering Ms Birgit Brauer.
[2]        Mr Wallace was subsequently sentenced to life imprisonment, with a minimum term of imprisonment of 18 years.[1]
[1]      HC New Plymouth CRI-2006-043-00292, 5 October 2007.
[3]        Mr Wallace now appeals against his conviction and sentence.
[4]        The conviction appeal is pursuant to s 385 of the Crimes Act 1961. It is claimed that a substantial miscarriage of justice occurred in the following three respects:
(a)The jury was misled as to the strength of DNA evidence adduced at Mr Wallace’s trial.
(b)The jury was also misled as to the strength of fingerprint evidence adduced at his trial.
(c)Trial counsel (not Mr King) failed to adequately represent Mr Wallace.

The general narrative
[5]        Ms Brauer, a 28 year old German national, arrived in New Zealand in February 2005 on a one year work permit with the intention of backpacking around the country. She was beaten and stabbed to death at Lucy’s Gully near New Plymouth in September 2005.
[6]        In June 2005, Mr Wallace had been contracted to cut firewood in Foxton. He was given the use of a 1988 Toyota Hilux Surf (the “Hilux”). In August 2005 he disappeared from his job with this vehicle.
[7]        On 20 September 2005 Ms Brauer…

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 Wallace v R

Details

AGLC: Wallace v R [2010] NZCA 46
Case: [2010] NZCA 46
Decision Date: 3 March 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Michael Scott Wallace appealed against his conviction and sentence for the murder of Birgit Brauer. The appeal was dismissed. The court found that the evidence presented at trial, including DNA and fingerprint evidence, was reliable and properly handled. The court also found that the sentence was appropriate and within the range available. The appeal was dismissed, and the conviction and sentence were upheld.

Orders