Justin Ames Johnston v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young,Glazebrook,Arnold JJ
Judgment Date15 October 2015
Neutral Citation[2015] NZSC 143
Date15 October 2015
Docket NumberSC 61/2015

[2015] NZSC 143

IN THE SUPREME COURT OF NEW ZEALAND

Court:

William Young, Glazebrook and Arnold JJ

SC 61/2015

Between
Justin Ames Johnston
Applicant
and
The Queen
Respondent
Counsel:

R M Lithgow QC for Applicant

A Markham for Respondent

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.

The issues were: whether the second trial judge had erred in his directions to the jury; and whether there was a rational basis for concluding that the applicant intended to rape the complainant that night.

Held: The applicant's approach to the summing up would result in an indeterminate question as to proximity (was this “an actual attempt”) being left to the jury. Section 72(2) Crimes Act 1961 provided that question whether as to whether an act was too remote to constitute an attempt to commit an offence was a question of law, which left this issue to the Judge. All that was required was that the Judge identify actions sufficiently proximate to the crime to amount to an offence and then to leave it to the jury to decide whether the applicant carried out those actions with the intention of committing the offence of rape that night. This was what the Judge did.

There was a rational basis for concluding that the applicant intended to rape the complainant that night. Before moving onto the property, the applicant been watching the house for at least an hour. He went onto the property only after the complainant left the main house. He had gloves (unnecessary for a scoping exercise) and wore a beanie. As noted, it was open to inference that he had armed himself with a garden fork. It was open to the jury to conclude that his actions were consistent only with an intention to commit an offence. If that offence was not burglary (as the jury must have concluded), it could only logically have been rape.

Leave to appeal granted. The approved question was whether the trial 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
  • 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.

REASONS
1

At around 7.30 pm on 19 July 2010, the applicant...

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