Brunsell v The Queen - [2018] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA584/2017
[2018] NZCA 156

BETWEEN	TIMOTHY BRUNSELL Appellant
AND	THE QUEEN Respondent

Hearing:	18 April 2018
Court:	Kós P, French and Miller JJ
Counsel:	AJD Bamford and T C Lyall for Appellant K S Grau for Respondent
Judgment:	18 May 2018 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Miller J)

Mr Brunsell appeals his conviction for the manslaughter of Bruce Mortimer at Nelson on 4 July 2015.[1] He was found guilty as a party. The principal, Ronayne Dempsey, was convicted of murder.
[1]R v Dempsey [2016] NZHC 3056.

Mr Brunsell contends that the trial judge, Clifford J, mishandled the evidence of a Crown witness, Eric Grainger, who was asked leading questions by the Crown and ought to have been the subject of a reliability warning. He also complains that the Judge failed to direct the jury on defence of another and withdrawal.
The appeal was filed well out of time, but the delay has been explained and we consider it is in the interests of justice to deal with the appeal on the merits. We grant the necessary extension.

The facts

Messrs Mortimer, Dempsey and Brunsell lived at a Franklyn Village, a residential complex in a former nurses’ home at Nelson Hospital. Mr Brunsell, aged 17, and Mr Dempsey aged 27, were friends, with Mr Dempsey being the dominant person in the relationship. The evidence indicates that he was inclined to bully Mr Brunsell.
On the evening of 2 July, Mr Brunsell and Mr Dempsey were socialising with friends in a room on Level 2 of the complex. Mr Dempsey began talking about assaulting Mr Mortimer to steal $200 which he believed Mr Mortimer had in his possession. Mr Brunsell later denied hearing this talk. Mr Dempsey also spoke sharply to Mr Brunsell for losing a set of keys.
Mr Brunsell claimed that he declined to accompany Mr Dempsey to Mr Mortimer’s room, and it is common ground that he did return to his own room on another floor. However, he made his way back to Level 2. The Crown case was that he went there to help Mr Dempsey rob Mr Mortimer. Mr Brunsell’s account in interview was that he went there to return a phone to Mr Dempsey and followed him down the corridor to Mr Mortimer’s room, where Mr Dempsey knocked and a fight began when Mr Mortimer opened the door.
Mr Brunsell denied getting involved in the fight in the room, but Mr Mortimer later gave a statement saying that the taller of the two men who assaulted him (Mr Brunsell) “kept punching [him]” there.
The fight moved to the corridor outside Mr Mortimer’s room, where a series of witnesses, mostly neighbouring occupants drawn to the scene by the commotion, observed parts of what happened next. Mr Brunsell…

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 Brunsell v The Queen

Details

AGLC: Brunsell v The Queen [2018] NZCA 156
Case: [2018] NZCA 156
Decision Date: 18 May 2018 at 11.30 am

CaseChat Overview and Summary

Brunsell appeals his conviction for manslaughter following the death of Bruce Mortimer. Dempsey, the principal, was convicted of murder. Brunsell contends that the trial judge mishandled the evidence of Eric Grainger, who was asked leading questions by the Crown and ought to have been the subject of a reliability warning. He also contends that the Judge failed to direct the jury on defence of another and withdrawal. The appeal was filed out of time, but the delay has been explained and the court considers it is in the interests of justice to deal with the appeal on the merits. The court grants the necessary extension. The court does not think the jury was at risk of attaching too much weight to Grainger's evidence. Nor are they persuaded that the leading questions asked by Crown counsel caused a miscarriage. The court is satisfied that no miscarriage can have resulted from the way in which the Judge handled Brunsell's claim that he was trying to break up the fight. The court also does not accept that such a direction was required on withdrawal. The application for an extension of time to appeal is granted. The appeal is dismissed.

Orders