First point of appeal – admissibility of text message
[17]
Section 22A
[18]
District Court
[22]
Court of Appeal decision
[28]
Issues
[30]
Text sent before Mr Winter was part of the joint enterprise
[34]
Was the arming up text sent in furtherance of the joint enterprise?
[41]
Was the arming up text inadmissible under s 8?
[53]
Did the wrongful admission of the arming up text lead to a miscarriage of justice?
[55]
First point of appeal: conclusion
[59]
Non-hearsay statements
[60]
Second point of appeal – included charges
[64]
The position in New Zealand
[69]
The position in the United Kingdom
[74]
The relevant statutory provisions
[75]
The relevant authorities
[77]
Canada
[98]
Australia
[102]
Application of Mokaraka in New Zealand
[107]
A different approach in New Zealand?
[135]
The principles to be applied
[141]
This case
[150]
Second point of appeal: conclusion
[157]
Result
[158]
Introduction
The appellant, Mr Winter, (along with a co‑defendant, Alvin Kumar) was convicted (as a party) on two charges of wounding with intent to cause grievous bodily harm and one charge of male assaults female after a District Court jury trial. Four people were involved in the incident but the other two, Nicholas Hanson and Stephanie McGrath, pleaded guilty shortly before the trial. Mr Winter was sentenced to a term of imprisonment of eight years.[1]
[1]R v Hanson [2017] NZDC 27289 (Judge O’Driscoll). Mr Winter also appeared for sentencing on unrelated cannabis charges.
Mr Winter appealed against conviction and sentence to the Court of Appeal. He raised two grounds of appeal against conviction. The first was that a text message sent by Mr Hanson to Mr Hanson’s girlfriend was wrongly admitted into evidence at the trial under the co-conspirators’ exception to the rule against the admission of hearsay evidence, now set out in s 22A of the Evidence Act 2006. The second was that the trial Judge had not provided the jury with an included lesser offence for its consideration. Both grounds were rejected by the Court of Appeal and the sentence appeal was also dismissed.[2]
Mr Winter now appeals to this Court against his conviction (but not sentence), raising the same two grounds as were advanced in the Court of Appeal.[3]
Background
[3]Winter v R [2019] NZSC 8. The approved ground is whether the Court of Appeal was correct to dismiss Mr Winter’s appeal…
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
AGLC
Winter v The Queen [2019] NZSC 98
Case
[2019] NZSC 98
Decision Date
CaseChat Overview and Summary
Jesse-James Winter appealed against his conviction by the Court of Appeal, arguing that a text message sent by Alvin Kumar to his girlfriend before he joined the joint enterprise was wrongly admitted into evidence at the trial under s 22A of the Evidence Act 2006. The second argument was that the trial Judge had not provided the jury with an included lesser offence for its consideration. The Court of Appeal rejected both grounds of appeal and the sentence appeal was also dismissed. Winter now appeals to the Supreme Court against his conviction, raising the same two grounds as were advanced in the Court of Appeal. The Supreme Court considered the admissibility of the text message under s 22A, which provides a hearsay exception for statements made in furtherance of a conspiracy or joint enterprise. The Court concluded that the text message was wrongly admitted because it was not in furtherance of the joint enterprise. However, the Supreme Court found that the admission of the text message did not lead to a miscarriage of justice because the trial Judge directed the jury that the text could not be used to prove Winter knew Kumar was armed. The Supreme Court also found that it was not necessary in the interests of justice to leave an included charge with the jury. The appeal was dismissed.