Churchis v R - [2016] NZCA 264

IN THE COURT OF APPEAL OF NEW ZEALAND

CA391/2015
[2016] NZCA 264

BETWEEN	STEVEN RAY CHURCHIS Appellant
AND	THE QUEEN Respondent

Hearing:	26 May 2016
Court:	Stevens, Woodhouse and Wylie JJ
Counsel:	W C Pyke for Appellant M A Corlett for Respondent
Judgment:	17 June 2016 at 11.30 am

JUDGMENT OF THE COURT

AThe application to extend the time to appeal is granted.
BThe appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

Mr Churchis was found guilty by a jury in the High Court at Auckland of one charge of murder. He had earlier pleaded guilty to one charge of wounding with intent to injure. He was sentenced by Venning J to life imprisonment with a minimum period of imprisonment of 11 and a half years.[1] He appeals only against his conviction for murder.
[1]R v Churchis [2014] NZHC 2257.
Mr Churchis’ appeal was brought out of time. The delay is explained and the Crown does not oppose an extension of time. We therefore grant an extension of time within which to bring his appeal.
The conviction is challenged on the basis that a miscarriage of justice occurred because Venning J failed to direct the jury adequately about the requirements of murder under s 167(b) of the Crimes Act 1961. It is submitted the directions:
(a)were framed too generally in terms of an “assault” and failed to direct the jury about how it might use evidence of blows struck by Mr Churchis after the likely fatal blow had been delivered;
(b)failed to direct the jury that the evidence of the pathologist, Dr Stables, was that a subdural haematoma around the brain was the primary injury and that, as a result of this evidence, it was necessary for the jury to determine which blow(s) led to that primary injury and assess Mr Churchis’ state of mind at the time he struck the blow(s); and
(c)failed to direct the jury that Dr Stables’ opinion was it was “most likely a fall” to the ground that caused the brain injuries and to remind the jury of trial counsel’s argument about these matters when summing up.
These criticisms may conveniently be summarised as being that the Judge failed to direct:
(a)that the jury had to identify a particular blow or blows that caused Mr Linder’s death;
(b)that the particular blow that likely caused Mr Linder’s death was a kick that knocked him to the ground; and
(c)that the jury had to identify Mr Churchis’ state of mind at the time that particular blow was inflicted.
The Crown accepts that, although the other blows undoubtedly contributed to Mr Linder’s death, the blow that knocked him to the ground was likely to be the primary cause. However, Mr Corlett for the Crown submits it was not necessary for the Judge to direct the jury about the blow that caused death and Mr Churchis’ state of mind at that particular time because there was no evidential basis…

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 Churchis v R

Details

AGLC: Churchis v R [2016] NZCA 264
Case: [2016] NZCA 264
Decision Date: 17 June 2016 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Steven Ray Churchis appealed against his conviction for murder. The appeal was brought out of time, but the application to extend the time to appeal was granted. The primary issue in the appeal was whether the trial judge failed to direct the jury adequately about the requirements of murder under s 167(b) of the Crimes Act 1961. The appellant argued that the trial judge should have directed the jury to identify a particular blow or blows that caused the victim's death and assess his state of mind at the time that particular blow was inflicted. The Crown accepted that the blow that knocked the victim to the ground was likely the primary cause of death but submitted that it was not necessary for the trial judge to direct the jury about the blow that caused death and the appellant's state of mind at that particular time because there was no evidential basis for suggesting the appellant's state of mind varied in any way during the attack. The Court concluded that there was no evidential basis for suggesting that the state of mind or purpose of the appellant varied in any significant way during the assault. It was not necessary for the trial judge to direct the jury in the manner suggested by the appellant. The application to extend the time to appeal was granted, and the appeal against conviction was dismissed.

Orders