David Samuel DOWNES v The King - [2023] NZHC 3739

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-000068

[2023] NZHC 3739

BETWEEN
DAVID SAMUEL DOWNES

Appellant

AND

THE KING

Respondent

Hearing: 13 December 2023

Counsel:

H G de Groot and O T H Neas for Appellant W J S Tupua for Respondent

Judgment:

18 December 2023

JUDGMENT OF RADICH J

[1] The appellant was convicted on three charges. One, causing grievous bodily harm with intent to cause grievous bodily harm,1 arose from an incident at the appellant’s home on 12 April 2019. The other two charges, common assault2 and wounding with intent to cause grievous bodily harm,3 arose from incidents, again at the appellant’s home but several months later, on 28 August 2019.

[2] The appellant pleaded not guilty to the grievous bodily harm charge arising out of the 12 April 2019 incidents. Judge Hobbs, after a judge-alone trial, found him guilty of the charge in a decision of 30 September 2022.4

1      Crimes Act 1961, s 188(1) (maximum penalty 14 years’ imprisonment).
2      Crimes Act, s 196 (maximum penalty 1 year imprisonment).
3      Crimes Act, s 188(1) (maximum penalty 14 years’ imprisonment).
4      R v Downes [2022] NZDC 18676 [R v Downes (judge-alone trial and disputed facts hearing decision)].

DOWNES v R [2023] NZHC 3739 [18 December 2023]

[3] The appellant pleaded guilty to the charges arising out of the 28 August 2019 incidents. However, a disputed facts hearing took place in relation to the wounding charge.5 The appellant accepted that he had used unreasonable force but maintained that he was acting in self-defence. The Crown did not accept he was acting in self- defence. The issue was important because Judge Hobbs had indicated that self- defence, should it be made out, would be a mitigating factor in sentencing for the wounding charge. However, the Judge found, in the same judgment as that mentioned in [2] above, that the appellant had not acted in self-defence in relation to the wounding charge.

[4] The appellant was sentenced by the Judge on 23 June 2023 to eight years and three months’ imprisonment for the grievous bodily harm charge, to four years’ imprisonment for the wounding charge and to six months’ imprisonment for the common assault charge,6 all to be served concurrently.

[5] The appellant appeals from his conviction by the Judge in the judge-alone trial and he appeals from the decision in the disputed facts hearing that he was not acting in self-defence in relation to the wounding charge. He seeks adjustments to his sentence if one or both of the appeals are upheld.

Leave to appeal

[6] The appellant is out of time to appeal.7 He seeks leave to appeal under s 231(3) of the Criminal Procedure Act 2011 on the basis that he engaged new counsel in July 2023 and time was required for his counsel to receive files and take instructions. Leave may be granted where it is in the interests of justice,8 which requires the…

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 David Samuel DOWNES v The King

Details

AGLC: David Samuel DOWNES v The King [2023] NZHC 3739
Case: [2023] NZHC 3739
Decision Date: 18 December 2023

CaseChat Overview and Summary

David Samuel Downes appeals his conviction and sentence, brought against him by The King, to the High Court of New Zealand. The appellant was convicted of causing grievous bodily harm with intent to cause grievous bodily harm, common assault, and wounding with intent to cause grievous bodily harm. The appellant challenges the sufficiency of the Judge’s reasoning in the judge-alone trial and the disputed facts hearing. The appellant also seeks adjustments to his sentence if one or both of the appeals are upheld. The Crown opposes the application for leave and submits that the appellant’s case does not have merit. The appeal court grants leave and proceeds to the appeal against conviction and sentence. The appeal court does not find that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any reason. The appeal against conviction is declined. The appeal court also does not find there to have been any error in the Judge’s decision on the disputed facts hearing. The appeal against the disputed facts hearing is also declined. The appeal is declined in its entirety.

Orders