Justin Ames Johnston v R

• Jurisdiction: New Zealand
• Judge: William Young,Glazebrook,Arnold JJ
• Judgment Date: 15 October 2015
• Neutral Citation: [2015] NZSC 143
• Docket Number: SC 61/2015
• Court: Supreme Court
• Date: 15 October 2015

Between

Justin Ames Johnston

Applicant

and

The Queen

Respondent

[2015] NZSC 143

Court:

William Young, Glazebrook and Arnold JJ

SC 61/2015

IN THE SUPREME COURT OF NEW ZEALAND

Application for leave to appeal conviction for attempted rape — appellant had been found near a sleep out in which a 16 year old girl was sleeping — appellant was wearing dark clothes, possibly carrying a weapon and with his car was nearby with one of the back seats folded down — Crown accepted that leave to appeal should be granted on whether the applicant's actions were sufficiently proximate to constitute the actus reus of an attempt — the applicant also wished to appeal on two other bases — following a successful appeal after his first trial, the second trial Judge told the jury that they could only find the applicant guilty if he intended to rape the complainant that night — unlike his first trial in which he had run a “not on that night” defence, the applicant suggested he had intended burglary — the applicant argued that the Judge should therefore have summed up by asking the jury whether he intended to commit sexual violation that night and whether the jury considered that he was in the process of an actual attempt — whether the second trial judge had erred in his directions to the jury-whether there was a rational basis for concluding that the applicant intended to rape the complainant that night.

Counsel:

R M Lithgow QC for Applicant

A Markham for Respondent

• A The Application for leave to appeal is granted ( Johnston v R [2015] NZCA 162).

• B The approved question is wether the trail Judge was wrong to conclude that the actions of the applicant on the night of the alleged offending were sufficiently proximate to constitute the actus reus of an attempt.

JUDGMENT OF THE COURT

REASONS

1 At around 7.30 pm on 19 July 2010, the applicant was found on a back section, crouching near a sleep out in which a 16 year old girl was present. He was wearing dark clothing, a beanie and gloves and carrying a torch. On the evidence, it was open to inference that he had armed himself with a garden fork. His car was nearby and one of the back seats was folded down. The background material referred to in the Crown's submissions shows that he had had the property under observation for some time, possibly as long as six weeks. For much of that time (five weeks) the complainant had not been sleeping in the sleep out. She resumed sleeping there on 12 July. On 19 July, the applicant's car arrived in the area at around 6.30 pm. The complainant left the house to go to the sleep out shortly after 7.00 pm. At this stage the applicant was presumably on the driveway, as six cigarettes butts which he had smoked were located there. It thus appears that he went onto the property and towards the sleep out only after the complainant went there.

2 On the basis of what the jury plainly saw as cogent propensity evidence, the applicant was found guilty...