Northlander's conviction for wounding quashed and a re-trial ordered

Maxwell Tobin's conviction in the Kaikohe District Court for wounding his neighbour has been quashed and a re-trial ordered. Photo / Peter de Graaf

A trial judge's improper direction to the jury on self-defence has led to a Northlander's conviction being quashed and a re-trial ordered.

Peria man Maxwell Charles Dallimo Tobin was in 2018 sentenced by the Kaikohe District Court to four and a half years' jail after earlier being found guilty of causing grievous bodily harm with intent.

He was found to have dragged his 67-year-old neighbour along a road by his beard and slammed him into a letterbox in a dispute over barking dogs and a Facebook post. His neighbour suffered broken ribs and a punctured lung.

Tobin's application in the High Court for a writ of habeas corpus — the right to apply for a legal release — on the basis his conviction was based on unreliable evidence was unsuccessful.

He then went to the Court of Appeal where he argued there had been a miscarriage of justice or a risk of that as a result of improper police investigation, a breach of his rights under the Bill Of Rights, and wrong description of the alleged offence on the charging document.

He also claimed there was a lack of corroborative evidence or expert analysis to support the neighbour's account of events and the victim's criminal history not being disclosed to the jury.

The Court of Appeal judges found there was no merit in his ground of appeal but said the trial judge's direction to the jury on self-defence caused them concern, although Tobin did not raise the issue on appeal.

The judges ruled the trial judge, in her summing up, gave directions to the jury on intent before addressing self-defence which was the wrong approach.

"If an act is shown to have been done in self-defence, the issue of criminal intent will not arise for consideration. It is for this reason that the issue of self-defence is regarded as one to be considered before intent," they said.

But the Crown referred to the practice of directing on self-defence prior to the question of intent as "ideal" but not the only approach and as not necessarily amounting to an error or irregularity .

It was appropriate in this case for the jury to be directed to consider the elements of the offence before self-defence because Tobin was challenging the mechanism by which the injury was caused to the neighbour, the Crown submitted.

But the judges rejected those submissions.

"In this case we do not see that Mr Tobin's challenge to the means by which (the neighbour) came to be injured precluded an orthodox direction on self-defence prior to intent.

"To the contrary, we think that the way the jury was directed created a real risk that it would come to the question of self-defence already armed with conclusions inimical to a genuine consideration of the issue," the judges said.

They said Tobin's fear of the neighbour as a violent and unpredictable man based on things the latter had said about his past on previous occasions, which formed an essential part of the foundation for the defence, was not properly canvassed at trial.

The Court of Appeal quashed the conviction for wounding with intent to cause grievous bodily harm and the first strike warning Tobin received, and ordered a re-trial.