AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of life imprisonment with a minimum period of imprisonment of 14 years is quashed and replaced with a sentence of life imprisonment with a minimum period of imprisonment of 12 years.

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REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No
Introduction  [1]
Issues on appeal  [4]
Facts  [9]
Evidence of the effect of alcohol and diazepam on
Mr Worrell’s mental state  [23]
      Proposed evidence of Dr Goodwin  [29]
      Evidence at trial  [33]
Fresh evidence application  [36]
Letter from juror  [45]
Prosecutor’s closing address: inconsistency with opening                   [53]
Prosecutor’s closing address: misrepresentation of evidence              [60]
Summing up on issue of murderous intent   [72]
Evidence of Dr Maharaj  [76]
Majority verdict  [79]
Result: conviction appeal  [80]
Sentence appeal  [81]
Result: sentence appeal  [93]
Disposition  [94]

Introduction

Mr Worrell faced six charges, including one of murder, arising from an incident in which the car he was driving collided with a number of vehicles travelling in the opposite direction near Karaka on 3 June 2008. He was charged with four counts of attempting to intentionally destroy or damage property knowing that danger to life was likely to result, one count of causing grievous bodily harm with intent to do so and one count of murder. He was convicted on two of the intentional damage counts, the grievous bodily harm count and the count of murder after a jury trial in the High Court in Auckland presided over by Andrews J. The convictions in each case were by a majority (11:1) verdict.
Andrews J sentenced him to life imprisonment with a minimum period of imprisonment of 14 years on the murder charge, and concurrent sentences of seven years imprisonment for the grievous bodily harm charge and 18 months imprisonment for each of the intentional damage charges.
Mr Worrell appeals against both conviction and sentence.

Issues on appeal

The issues on appeal are:
(a)Whether a miscarriage occurred because the jury did not hear evidence from a specialist psychiatrist as to Mr Worrell’s mental state, and the impact of that mental state on his intent during the driving incident. The impact of alcohol and the drug diazepam on Mr Worrell’s mental state is highlighted in this proposed evidence. In order to pursue this aspect of the appeal counsel for Mr Worrell, Mr Lawry, sought leave to adduce evidence in this Court that was not before the jury, namely an affidavit from Dr Ian Goodwin, a psychiatrist from Auckland. So we must determine whether that evidence is admissible and, if so, whether its absence from the…

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 Worrell v R

Details

AGLC: Worrell v R [2011] NZCA 63
Case: [2011] NZCA 63
Decision Date: 10 March 2011

CaseChat Overview and Summary

This appeal was brought against both the conviction and the sentence imposed on the appellant, Tony Allan Worrell, who was found guilty of one count of murder and four counts of attempted intentional damage or destruction of property with intent to cause grievous bodily harm. The appeal against conviction was dismissed, but the appeal against sentence was allowed, with the result that the minimum period of imprisonment was reduced from 14 years to 12 years. The appellant was convicted by a majority verdict after a jury trial in the High Court at Auckland. The appeal against conviction was based on six grounds. The first was that the jury had not heard evidence from a specialist psychiatrist about the appellant's mental state and the impact of that state on his intent during the driving incident. The appellant sought to adduce fresh evidence on this point, but the Court found that the evidence was not sufficiently fresh and credible to warrant its admission. The second was that one of the jurors had written to the appellant's trial counsel raising issues about the jury's deliberations. The Court found that the circumstances did not warrant allowing evidence about what occurred during the jury's deliberations. The third was that the prosecutor had relied on a section of the Crimes Act in his closing address that had not been foreshadowed in the Crown opening. The Court found that this did not give rise to a miscarriage of justice. The fourth was that the prosecutor had misrepresented some of the evidence in his closing address. The Court found that the significance of the matter had been overstated. The fifth was that the trial judge had not correctly summed up on murderous intent and intoxication. The Court found that, when the summing up was read as a whole, as must be the case, there was no genuine risk that the jury would have been misled by the trial judge's slip. The sixth was that the reference by a medical witness to the fact that the appellant had earlier been caught for drunken driving had caused a risk of a miscarriage. The Court found that the comment was not of great significance in the overall context of the trial. The appeal against sentence was based on the ground that the 14 year minimum period of imprisonment was manifestly excessive. The Court found that a minimum period of imprisonment of 12 years better reflected the gravity of the offending and the mitigating factors that should be taken into account.

Orders