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…
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- [2023] NZHC 3739
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