Body v The Queen - [2019] NZCA 378

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA657/2018
[2019] NZCA 378

BETWEEN	JAMES GRAHAM BODY Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2019 (further submissions received 12 August 2019)
Court:	French, Mallon and Moore JJ
Counsel:	M Starling and L M Drummond for Appellant A J Ewing and M G McClenaghan for Respondent
Judgment:	22 August 2019 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Body was convicted at trial in the District Court of kidnapping, three charges of male assaults female, two charges of doing a threatening act and one charge of threatening to kill. All the charges arose from a drunken altercation with his then partner at their home on 21 July 2017. The jury trial was presided over by Judge O’Driscoll.
Mr Body now appeals his convictions.[1]

The Crown case

[1]An appeal against sentence was abandoned.

According to the Crown case, the incident began when Mr Body took exception to the complainant cooking a meal for her adult son. He became enraged and over the course of the next few hours committed the following acts. He abused the complainant verbally, hit her on the ear with an open hand, discharged a firearm into the television, punched her in the jaw, bit her ear and discharged the firearm into a pot plant. He also smashed a bathroom mirror.
Sometime later, he got the complainant into the bedroom and pushed furniture against the door to block that exit, saying “I’ll fucking kill you bitch”. Eventually he fell asleep and the complainant was in the throes of leaving the house when police arrived responding to a call from her concerned son.
The seven charges were based on the following factual allegations:

Charge
Factual allegation Offence

1
Slapping her to ear Male assaults female

2
Shooting television Doing a threatening act

3
Punching her to jaw Male assaults female

4
Shooting pot plant Doing a threatening act

5
Biting her ear Male assaults female

6

Detaining her in bedroom
Kidnapping

7
Telling her he would kill her Threatening to kill

The complainant’s out of court statements

The complainant made three out of court statements that featured at the trial and on appeal:
(a)A brief statement to an armed police officer immediately after she had left the house on 21 July (the notebook statement). The complainant was recorded as having told the officer that her partner was drunk and had smashed up the house and was now asleep in the front bedroom. She confirmed there was a slug gun inside the house and when asked whether he had threatened her at all with the gun, she reluctantly replied “well, yeah sort of”.
(b)A formal seven page statement taken by a police officer later that night and completed in the early hours of the following morning (the formal police statement). It contained all the allegations described in [3] and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Body v The Queen

Details

AGLC: Body v The Queen [2019] NZCA 378
Case: [2019] NZCA 378
Decision Date: 22 August 2019 at 10.30 am

CaseChat Overview and Summary

In the case of Body v The Queen, the Court of Appeal of New Zealand considered an appeal against conviction brought by the appellant, James Graham Body, who had been convicted of multiple charges including kidnapping, assault, and threats to kill. The charges stemmed from an incident where the appellant, while intoxicated, engaged in violent behavior towards his partner at their home. The core of the appeal was centered around the reliability of the complainant's evidence and the trial judge's handling of various statements made by the complainant.

The court examined several legal issues, including the admissibility of the complainant's formal police statement and a retraction letter, the trial judge's questioning of the complainant, and whether these actions prejudiced the appellant's case. The appellant's counsel argued that the trial had miscarried due to improper admission of evidence and unfair judicial conduct. The court found that while there were procedural errors, they did not prejudice the outcome of the trial. Specifically, the formal police statement was admissible under sections 35(2) and 90(7) of the Evidence Act 2006, despite some inconsistencies. The retraction letter was deemed admissible as it did not prejudice the appellant. The court also noted that the failure to produce an earlier, brief statement did not impact the trial's fairness, as this statement's contents were already part of the trial record.

Regarding the judge's questioning, the court acknowledged that it was an error not to allow counsel to address the questions arising from the judge's interrogation. However, this error did not prejudice the appellant as the evidence elicited was already part of the record. Additionally, the court determined that the judge's comment about the complainant's initial statement, while potentially unwise, did not unfairly influence the jury's verdict when considered in the context of the entire summing-up. The appeal was ultimately dismissed as the court found no grounds for appellate intervention.

Orders