Winter v The the Queen - [2022] NZSC 106

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 44/2022
[2022] NZSC 106

BETWEEN	TOKO (ASHLEY) SHANE REI WINTER Applicant
AND	THE QUEEN Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	W C Pyke for Applicant Z R Johnston and F E S F Girgis for Respondent
Judgment:	6 September 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant and Mr Kerry Te Amo were convicted after trial of murder. Both the applicant and Mr Te Amo pleaded guilty to kidnapping the murder victim. A third person, M, was also charged with murder but was found unfit to stand trial.[1] The applicant appealed unsuccessfully to the Court of Appeal against conviction.[2] She has applied for leave to appeal to this Court.

Background

[1]The Crown advise that the Attorney‑General has subsequently directed M be brought back before the Court.

[2]Te Amo v R [2022] NZCA 122 (Cooper, Peters and Palmer JJ) [CA judgment].

The murder involved the torture and hanging of a 17 year old girl. The key Crown eye‑witness evidence at trial came from M’s younger sibling, R, who was 14 years old at the time. R was present for much of the offending but she did not see the victim being hanged. At that point she had been sent to another room in the house in which these events took place.
R was interviewed by the police and made a number of statements over a period in July to August 2018, all of which were before the jury. She implicated the applicant, Mr Te Amo and M, and ascribed a leading role to the applicant. The jury also heard that, subsequently, R was given Crown immunity on 13 November 2018. The jury heard evidence about the process leading to the issuing of the certificate of immunity including as to the provision of legal advice to R by an independent lawyer (on two occasions). The certificate of immunity was read to the jury.[3] There were some additions to her evidence from that in her police statements prior to trial. Trial counsel for the applicant said the new material illustrated the fact that in her evidence R was “overcooking” the applicant’s role.
[3]The certificate notes that the undertaking of immunity would not protect R from the consequences of giving untrue evidence.
The applicant made…

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 Winter v The the Queen

Details

AGLC: Winter v The the Queen [2022] NZSC 106
Case: [2022] NZSC 106
Decision Date: 6 September 2022

CaseChat Overview and Summary

Toko (Ashley) Shane Rei Winter, the applicant, sought leave to appeal against her conviction for murder. The respondent, the Crown, opposed the application. The murder involved the torture and hanging of a 17 year old girl. The key Crown evidence came from R, who was 14 years old at the time and a sibling of one of the accused. R was granted Crown immunity on 13 November 2018 and was interviewed by police and made statements implicating the applicant, Kerry Te Amo and M, ascribing a leading role to the applicant. The applicant argued that a warning should have been given to the jury about the reliability of R’s evidence under s 122(2)(c) of the Evidence Act 2006 due to R’s young age and her involvement in the events. The applicant also challenged the directions given by the Judge about the immunity as conveying acceptance of the truth of what R told the police. The court held that the proposed appeal did not raise questions of general or public importance. There was no appearance of a miscarriage of justice. The arguments on the proposed appeal would in substance reprise those made before the Court of Appeal. The criteria for leave to appeal were not met.
The application for leave to appeal is dismissed.

Orders