Gillbanks v R [2014] NZCA 567 (27 November 2014)

Last Updated: 5 December 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA652/2014 [2014] NZCA 567
BETWEEN	SAMUEL INGRAM GILLBANKS Appellant
AND	THE QUEEN Respondent
CA612/2014
BETWEEN	BLAKE PAUL CUNNARD Appellant
AND	THE QUEEN Respondent
CA606/2014
BETWEEN	JARED MATTHEW PERRY Appellant
AND	THE QUEEN Respondent

Court:	Harrison, Stevens and French JJ
Counsel:	A J D Bamford for Appellant Gillbanks G P Barkle for Appellant Cunnard R B Squire QC for Appellant Perry C A Brook for Respondent
Judgment: (On the papers)	27 November 2014 at 10.00 am

JUDGMENT OF THE COURT

1. In the case of each appellant the application for an extension of time to appeal is granted.
2. Mr Gillbanks’ appeal against conviction is allowed and his conviction for manslaughter is quashed.

100. Mr Cunnard’s appeal against conviction is allowed and his conviction for murder is quashed.

4. Mr Perry’s appeal against conviction is allowed and his conviction for manslaughter is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

[1] Messrs Gillbanks, Cunnard and Perry (the appellants) were all charged with offences arising out of the death of Mr Troy Minto. They were charged on the basis that they were parties under s 66(2) of the Crimes Act 1961 to the alleged culpable homicide of Mr Minto by Mr Blair McNaughton.
[2] Following trial, Mr McNaughton was convicted of murder and the appellants were convicted of the following offences:

• (a) Mr Gillbanks – convicted of manslaughter as a party;
• (b) Mr Cunnard – convicted of murder as a party; and
• (c) Mr Perry – convicted of manslaughter as a party.

[3] Mr McNaughton appealed his conviction. His appeal was allowed,^[1] and at a subsequent retrial held in September 2014 he was acquitted of murder.
[4] The appellants then filed appeals against their respective convictions.
[5] The Crown accepts that in light of the acquittal of the alleged primary offender, the appellants’ convictions for manslaughter and murder are not sustainable and should be quashed. It therefore does not oppose the appeals. The Crown also advises that it does not seek an order for a retrial.
[6] We are satisfied that in the circumstances these appeals can be dealt with on the papers without the need for a hearing.^[2]
[7] We are also satisfied that the following orders should be made:

• (a) In the case of each appellant the application for an extension of time to appeal is granted.
• (b) Mr Gillbanks’ appeal against conviction is allowed and his conviction for manslaughter is quashed.
• (c) Mr Cunnard’s appeal against conviction is allowed and his conviction for murder is quashed.
• (d) Mr Perry’s appeal against conviction is allowed and his conviction for manslaughter is quashed.

[8] There will be no order for a retrial in respect of any of the appellants.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467.

^[2] Crimes Act 1961, s 392A.