Blair Robert Mcnaughton v R

• Jurisdiction: New Zealand
• Judge: O'Regan P
• Judgment Date: 24 November 2011
• Neutral Citation: [2011] NZCA 588
• Docket Number: CA136/2011 CA291/2011 CA292/2011 CA294/2011
• Court: Court of Appeal
• Date: 24 November 2011

[2011] NZCA 588

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

O'Regan P, Chisholm and Potter JJ

CA136/2011

CA290/2011

CA291/2011

CA292/2011

CA294/2011

Between

Blair Robert McNaughton

Appellants

and

The Queen

Respondent

Between

Jared Matthew Perry Samuel Ingram Gillbanks Isaac Crawford Warren Blake Paul Cunnard

Appellants

and

The Queen

Respondent

Counsel:

D J Boldt for McNaughton

R B Squire QC and D J C Russ for other Appellants

A Markham for Respondent

JUDGMENT OF THE COURT

• A Mr McNaughton's appeal is allowed, his conviction for murder is quashed and a retrial is ordered. His conviction for unlawful possession of a shotgun stands.

• B All other appellants are given leave to appeal but their appeals are dismissed.

• C Issues of joinder of Mr McNaughton's retrial and the retrial of the other appellants are to be dealt with in the High Court.

• D An order is made prohibiting publication of the reasons for judgment in news media or on the internet or other publicly available database until final disposition of the retrial or retrials of all appellants. Publication in a Law Report or a Law Digest is permitted.

REASONS OF THE COURT

(Given by O'Regan P)

Table of Contents

	Para No
Introduction	[1]
Issues in Mr McNaughton's appeal	[7]
Background facts	[11]
Mr McNaughton: conviction appeal	[22]
Advising Mr McNaughton not to give evidence	[26]
Mr Brandish's evidence	[42]
Self-defence and lack of murderous intent	[52]
Limiting self-defence	[53]
Overall assessment	[56]
Appeals of party appellants	[60]
Result	[65]

Introduction

1 Mr McNaughton was convicted of murder and unlawful possession of a shotgun after a jury trial. He had earlier pleaded guilty to a charge of unlawful assembly. He was sentenced to life imprisonment with a minimum period of imprisonment of 12 years. He appeals against conviction on both counts. In broad terms he argues that a miscarriage of justice arose because events at the trial and flaws in the conduct of his defence by his trial counsel meant that his contention that he was acting in self-defence when he fired the fatal shot was not adequately put before the jury.

2 The charge arose out of a pre-arranged fight between two groups of young men near Nelson on 14 November 2009, during which Mr McNaughton shot the victim, Mr Minto.

3 Messrs Perry, Gillbanks, Warren and Cunnard (the “party” appellants) also faced charges relating to the murder. They were part of the same group of men as Mr McNaughton. They were on trial for the charges they faced at the same trial as Mr McNaughton. However, the trial Judge, Justice Clifford, ordered severance of their trial from Mr McNaughton's after the completion of the Crown case. 1 The circumstances in which that happened will be explained later.

4 The new trial for the party appellants was scheduled to take place in May 2011. The charges each of them faced were:

• (a) Mr Cunnard: party to murder on the basis that he had taken the gun with which Mr McNaughton shot Mr Minto to the scene of the confrontation, loaded it, and cocked it. Mr Cunnard has pleaded guilty to unlawful possession of a firearm and unlawful assembly.

• (b) Mr Warren: party to manslaughter on the basis that he was a party to the culpable homicide of Mr Minto because he was part of the group and had lent his support to the group despite knowing a firearm would be present. Mr Warren has pleaded guilty to unlawful possession of a firearm and unlawful assembly.

• (c) Mr Gillbanks: party to manslaughter on the same basis as Mr Warren and unlawful possession of a firearm. Mr Gillbanks has pleaded guilty to unlawful assembly.

• (d) Mr Perry: party to manslaughter on the same basis as Mr Warren (Mr Perry was the driver) and unlawful possession of a firearm. Mr Perry was discharged without conviction on the unlawful assembly charge.

5 The Crown sought to rely on a certificate of Mr McNaughton's conviction for murder at the trial of the party appellants as “conclusive proof” that Mr McNaughton committed the offence of murder, pursuant to ss 49 and 139 of the Evidence Act 2006. The party appellants argued that the certificate should not be admitted and that they should have been granted an opportunity to offer evidence to suggest that Mr McNaughton had been acting in self-defence and thus the certificate of his murder conviction was not decisive. 2 MacKenzie J ruled that the certificate could be adduced. 3 The party appellants seek leave to appeal against this ruling. Given the significance of the issue, we grant leave.

6 The appeals were heard together because of the overlapping subject matter. We will deal with Mr McNaughton's appeal first.

Issues in Mr McNaughton's appeal

7 The essential issue in Mr McNaughton's appeal is whether there was a miscarriage of justice because his proposed defence of self-defence was not

adequately put before the jury. There are two aspects to this issue. The first is the decision not to call Mr McNaughton to give evidence on his own behalf. The second is the decision of the trial Judge to allow the evidence of a witness, Mr Brandish, to be given by the playing to the jury of a video record of his interview with the police. This was allowed after an application from Mr McNaughton's trial counsel, Mr Bamford. So this aspect of the appeal also calls into question the actions of Mr McNaughton's trial counsel.

8 Mr McNaughton's counsel in this Court, Mr Boldt, argued that Mr McNaughton's trial counsel made two other errors at the trial. These were said to be:

• (a) the decision to focus the defence of self-defence on the contention that Mr Minto was armed with a baseball bat when he approached Mr McNaughton in the moments before the shooting, rather than on the broader proposition that Mr Minto intended to attack Mr McNaughton and take possession of the firearm for himself; and

• (b) the fact that trial counsel put before the jury an alternative defence based on absence of murderous intent, which was said to have confused the jury because it was inconsistent with self-defence.

9 Mr Boldt argues that the cumulative effect of those errors was that a miscarriage of justice occurred.

10 Before turning to considering whether the alleged errors were made and, if so, a miscarriage resulted, we will first set out the factual background.

Background facts

11 The accounts of witnesses to the events leading up to the shooting were confused and inconsistent. The summary that follows is intended to set the scene for the consideration of the issues on appeal. As there are disputes about a number of factual matters, the summary should be seen as no more than an indication of the way the incident leading to the shooting transpired, and not as findings of fact on our part.

12 As mentioned earlier, the charges arose out of a pre-arranged fight between rival groups. The main protagonists were Mr Warren and a Mr Proctor. Mr McNaughton was part of Mr Warren's group, as were the other appellants. We will call this group the “Warren group”. Mr Minto was part of the other group. We will call this group the “Proctor group”.

13 Most of the participants were affected by alcohol or drugs and both sides brought weapons to the scene. Members of the Warren group had a crowbar, knuckledusters and a 12 gauge pump action shotgun. Mr Cunnard loaded the gun at the house before they left. Mr Perry drove the other four appellants to the scene. The Crown said that Mr Cunnard placed the gun in the back of the ute in which they travelled to the scene, with the full knowledge of the other appellants. The degree of knowledge the appellants other than Mr Cunnard had about the presence of the gun is a matter in dispute. Members of the Proctor group also had knuckledusters, a wooden baseball bat and a yellow plastic cricket bat.

14 The Crown case was that a fist-fight developed between Mr Warren and Mr Proctor. The fight quickly escalated. Mr Gillbanks was struck forcefully on the head with the cricket bat by a Mr Clouston, who had armed himself with that bat and a baseball bat. Mr Clouston then used the baseball bat to begin smashing the windows of the vehicle in which the appellants had arrived.

15 Mr Cunnard produced the shotgun from the rear of the vehicle, cocked it, and began pointing it at members of the Proctor group and in the air. Mr Minto approached Mr Cunnard, pushed the gun away and punched him to the ground. Mr McNaughton then took the gun away from Mr Cunnard, and says he returned it to Mr Perry's ute.

16 Mr McNaughton became concerned about how the fight was developing and yelled out at least once that the fighting was meant to be “one on one”. It seems that Mr Cunnard then retrieved the gun and began pointing it in the direction of those in the Proctor group – perhaps at Mr Minto. Mr McNaughton again took the gun off Mr Cunnard. He began pointing it towards the Proctor group. At that stage, Mr Minto was some distance (perhaps 10–12 metres) away from him. Mr McNaughton said that Mr Minto seemed angry when he saw the gun, called out “You, you cunt”, pointed at the gun and advanced. There is a dispute as to whether or not Mr Minto was carrying a baseball bat. Mr McNaughton did not give evidence at trial, but in an affidavit filed in this Court he now says he believed Mr Minto was going to try and gain possession of the shotgun, that he told him to stop but Mr Minto continued to advance. Forensic evidence suggests Mr McNaughton shot the Mr Minto in the chest from a distance of between 2.4–3.6 metres.

17 Mr McNaughton was uncooperative when interviewed by the...