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 broad interest in achieving finality in decisions from the courts to be balanced against the interests of the applicant, and will involve consideration of why the appeal documents were filed late and what, if any, merit the prospective appeal has.9

5      Sentencing Act 2002, s 24 allows the Court to conduct a disputed facts hearing where a fact relevant to a sentence is in dispute.

6      R v Downes [2023] NZDC 13435.

7      Criminal Procedure Act 2011, s 231(2).

8      R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA) at 589; R v Lee [2006] 3 NZLR 42,

(2006) 22 CRNZ 568 (CA).

9      Slavich v R [2008] NZCA 116, at [14].

[7]    The Crown opposes the application for leave. It submits that the appellant’s case does not have merit and that he has not met his onus of satisfying the Court that to grant leave would be in the interests of justice.10 However, I am going to grant leave. The delay involved was relatively short and is explained, to an extent that is material, by the appellant’s change in counsel. It did not cause any prejudice to the Crown. The appeal is not without merit. Accordingly, I consider it to be in the interests of justice for leave to be granted.

The judge-alone trial

What happened?

[8]    On 12 April 2019, the appellant was at his home with a friend, Ms Gray, and the complainant, Mr Tunnicliff, who was Ms Gray’s flatmate. They had all consumed alcohol and cannabis. One thing led to another and then Mr Downes struck Ms Gray on the head. Originally, this incident was the subject of a separate charge. However, the Judge dismissed it after Ms Gray accepted that the strike may have been an accidental elbow or other form of incidental strike rather than a punch.

[9]    Mr Downes and Mr Tunnicliff had a physical interaction which resulted in severe injuries to Mr Tunnicliff.11 At the judge-alone trial, the appellant claimed he had acted in self-defence. The Crown refuted that, relying on the evidence of Ms Gray, photographic evidence of the scene and of Mr Tunnicliff’s injuries, and expert forensic evidence on the nature of Mr Tunnicliff’s injuries. Mr Tunnicliff did not give evidence.

[10]   Ms Gray’s account of events was that the parties were in the kitchen – where Mr Tunnicliff was turning the oven elements on and off and laughing about the fact that they worked, in contrast to the oven in his own flat – when the appellant pulled Mr Tunnicliff to the ground and “beat the hell out of him”.

[11]   The appellant’s account of events was that he had told Mr Tunnicliff several times to leave the elements on the stove alone. The appellant said that he left the

10     R v Davis [2007] NZCA 577.

11     R v Downes (judge-alone trial and disputed facts hearing decision), above n 4, at [8].

kitchen to use the bathroom and that, when he returned, Ms Gray hit him in the back of the head. The appellant said that, at that stage, he believed Mr Tunnicliff was shaping up to attack him and a fight started, with Mr Tunnicliff and the appellant both throwing punches at each other and falling to the ground. The appellant claimed he had used reasonable force to defend himself and suggested that some of the extensive injuries suffered by Mr Tunnicliff could be due to him hitting his head on the kitchen bench when they fell to the ground and then again on the floor.

The Judge’s decision

[12]First, the Judge addressed the elements of the charge:

[6] To prove the charge the Crown must prove three things. First, that the defendant intentionally caused Mr Tunnicliff grievous bodily harm. Grievous bodily harm simply means really serious harm. Second, that at the time the defendant caused the really serious harm he was not acting in self-defence and finally, that the defendant intended to cause Mr Tunnicliff really serious harm.

[13]   The Judge found the appellant had caused Mr Tunnicliff grievous bodily harm intentionally, saying that it was “not plausible to suggest that his injuries were caused by a fall to the floor when one considers the extent and nature of the injuries he sustained”.12

[14]   The Judge then turned to the “real issue” of whether the appellant was acting in self-defence. He accepted the evidence of Ms Gray that Mr Tunnicliff had not “squared up” to the appellant and that Ms Gray had not struck the appellant from behind as he re-entered the kitchen. His reasons for accepting Ms Gray’s evidence were these:

(a)there appeared to be no motive for Ms Gray to have punched the appellant;

(b)the fact the appellant was upset with Mr Tunnicliff for turning the elements of the stove on and off was undisputed by the appellant and did provide a motive for him to attack Mr Tunnicliff;

12 At [11].

(c)the appellant’s narrative of self-defence characterised a fight where both Mr Tunnicliff and the appellant punched each other but this was not consistent with the evidence of police officers that they observed no injuries on the appellant on their arrival in contrast to the significant injuries sustained by Mr Tunnicliff;

(d)the appellant’s narrative was convenient, given that Mr Tunnicliff was not giving evidence; and

(e)he was satisfied that Ms Gray was being truthful about what she could remember, although he took account of the appellant’s characterisation of Ms Gray as having been drunk and remembering little of what occurred.

[15]   The Judge added, after concluding that he was sure the appellant was not acting in self-defence:

[17]  I  am fortified in this view when I consider the similarities between  this incident and what occurred on 28 August 2019. In my view the similarities between the two incidents indicate a pattern of behaviour on the part of the defendant. Both involve a resort to extreme violence following a minor provocation or upset. Both involved a sustained attack resulting in serious injury to the complainant/victim, both occurred in the defendant’s home when alcohol had been consumed and on both occasions the defendant has claimed that he was acting in self-defence.

[16]   Finally, the Judge turned to the appellant’s intention, finding he had intended to cause Mr Tunnicliff really serious harm.13

Approach on appeal for judge-alone trials

[17]   The appeal proceeds under s 232 of the Criminal Procedure Act 2011, subs (2) of which provides that this Court must allow an appeal if it is satisfied that:

(b)in the case of a judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

13 At [18].

[18]   The approach to be taken under s 232(2)(b) was discussed by the Supreme Court in Sena v Police.14 The Court held that appeals under s 232 proceed by way of rehearing.15 The appeal court must form its own view of the facts and, if it comes to  a different view than the trial judge on the evidence, it must allow the appeal.16 However, the appeal court is not considering the issues de novo; it is for the appellant to show that an error has been made.

[19]   In considering if there has been an error, an appeal court must account for any advantage a trial judge may have had. In particular, where the appellant challenges credibility findings based on contested oral evidence, an appeal court must exercise “customary” caution, reflecting the advantage the trial judge has in evaluating the strengths and weaknesses of a case as the evidence emerges during trial and in making an assessment of witnesses, and the disadvantage for an appeal court in dealing with a case based on the written record of what happened at trial and counsel’s submissions.17

[20]   However, a failure to provide reasons will frustrate the operation of subs (2)(b) and may itself suggest that a miscarriage has occurred, engaging subs (2)(c); a reasoned judgment being an essential component of a fair trial.18 Reasoning consisting of “a conclusory credibility preference” is unlikely to suffice,19 nor is reasoning that does not address the substance of the case advanced by the losing party.20 Nonetheless, appeal courts must assess the adequacy and detail of reasoning in context. Relevant contextual factors include the evidence given, the type of case (including seriousness), the issues involved, and the necessary allowance for the burden on trial judges in balancing the need for the prompt determination of criminal cases with other workload requirements. Depending on the context, there does not need to be detailed reference (or, sometimes, any reference) to every issue or argument raised by the losing party.21

14     Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.

15     At [32], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

16 At [38].

17     At [38]–[42].

18 At [36].

19 At [36].

20 At [37].

21 At [37].

Discussion

[21]   In oral submissions, Mr Neas, for the appellant, emphasised two primary points. The first was a submission that the Judge erred in considering the appellant’s intention before going on to consider self-defence, referring to Tobin v R in which the Court of Appeal allowed an appeal on the basis that the jury had been invited to decide intent before self-defence.22 However, I do not believe that the Judge made any error on this front. He did say, in the first place, that he was sure that the defendant intentionally caused Mr Tunnicliff “really serious harm” but his description of this point was confined to the nature and extent of the injuries sustained.23

[22]   Having then considered self-defence, the Judge turned to the issue of intention. This is apparent from the opening words of [18], in which the Judge said “This leads the issue of the defendant’s intention”. The Judge’s reasons for finding the requisite intention to be present were expressed economically but they were expressed sufficiently in that paragraph. Accordingly, I can see no error under this head.

[23]   The second primary point advanced on behalf of the appellant related to what was said to be insufficient reasoning from the Judge on a number of fronts requiring inferences to be made in order for the appellant to understand why his case was rejected.

[24]   The Crown, on the other hand, sees the Judge’s reasons as being proportionate with the nature of the case – involving a serious charge but relatively contained factual circumstances. I do tend to agree, and I look at each of the points that are raised under this head.

[25]   It is said for the appellant that the Judge did not explain adequately why he rejected the appellant’s evidence. However, the Judge did give adequate reasons for rejecting the appellant’s account of events; he preferred that of Ms Gray. This was not just because he believed her to be truthful, but because her account was significantly more plausible and consistent with the objective evidence available; that the appellant

22     Tobin v R [2020] NZCA 66 at [21] and [26]–[32].

23 At [11].

was upset with Mr Tunnicliff and that the appellant did not have injuries consistent with his claim that Mr Tunnicliff had punched him several times.

[26]   The appellant takes issue, also, with the fact the Judge did not engage explicitly with the fact he had consumed less alcohol than either Ms Gray or Ms Tunnicliff. I do not see that the Judge needed to do so given that he assessed Ms Gray’s level of intoxication when he addressed her evidence.  The Judge’s  reasons for preferring  Ms Gray’s account of events, set out at [14], are not affected by the extent to which the appellant was intoxicated.

[27]   Similarly, I cannot uphold the appellant’s argument that the Judge did not explain sufficiently why he accepted Ms Gray’s evidence, despite its limitations. Under this head, the appellant advances three deficiencies in Ms Gray’s evidence, which he says were not addressed adequately. The first is that Ms Gray was heavily intoxicated, a fact which was undisputed. The second is that Ms Gray had accepted being “stunned” after being struck by the appellant and that there was a gap in her memory before she “came to”. This, it was said, was at a crucial moment in the altercation between the appellant and Mr Tunnicliff. The third is that Ms Gray’s brother, Nicholas Gray, gave evidence that when he saw Ms Gray a week after the incident she could not remember what had happened and that he thought she would have “blacked out” because she is an alcoholic. The Judge had this to say:

[14]   The defence characterised Ms Gray as a drunk who remembered little if anything of what occurred. Ms Gray’s memory of events may not have been perfect. That is hardly surprising in the circumstances. She was clearly reluctant   to   say   anything   initially.    Constable   Madsen   described    Mr Tunnicliff’s face being swollen, both eyes being swollen, his lips being swollen, nose bleeding and struggling to breathe.  Constable Madsen said  Mr Tunnicliff kept telling Ms Gray not to say anything. Ms Gray said she ultimately spoke to Police because she heard the defendant had attacked another person with a knife and she did not want that to continue. I am satisfied that Ms Gray told the truth about what she could remember.

[28]   In my view, the Judge addressed concisely the three points the appellant has raised. It was open to him to make the credibility assessment he did. He provided sufficient reasons for it: he accepted that Ms Gray’s memory of events may not have been perfect. But clearly, having heard her evidence, he accepted that she had not “blacked out” all together. While he did not refer explicitly to Nicholas Gray’s

evidence, he did refer to the essential substance of his oral evidence; and of the defence’s characterisation of Mr Gray as a consequence; that Ms Gray was “a drunk” and could not remember the events.

[29]   Having regard to the seriousness of the charge, which carries a maximum period of imprisonment of 14 years, the several other factors the Judge found as pointing to the conclusion that Ms Gray’s account of events was more plausible than the appellant’s, (listed at paras [14](a)–[14](c) above) and to the burden on the Judge to determine a case like this promptly alongside other requirements, I do not accept that the Judge expressed a merely conclusory credibility preference or that his assessment amounted to a miscarriage of justice in any other way.

[30]   I mention two other points raised by the appellant. The first, that the Judge should not have been “fortified” in his view by virtue of the appellant’s pattern of behaviour because the Judge’s conclusion on the disputed fact hearing was incorrect, cannot succeed in my view because, as I discuss below, I do not agree that the Judge formed the wrong conclusion in the disputed facts hearing.

[31]   The second, that the Judge erred in referring to the appellant’s self-defence argument as “convenient”, cannot succeed because it was a finding open to the Judge and because, in any event, it was not a fundamental pillar of the Judge’s reasoning that, if flawed, would justify a miscarriage of justice finding.

Conclusion on the judge-alone trial

[32]   I do not find that the Judge, in terms of s 232(2) of the Criminal Procedure Act, 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 conviction for causing grievous bodily harm with intent to cause grievous bodily harm is upheld.

Disputed facts hearing

What happened?

[33]   The following facts are undisputed. On 28 August 2019, the appellant was at his home with two friends who became the victims of his offending, Mr Carruthers and Mr Colwill. The men were consuming alcohol until the appellant took exception to Mr Carruthers having moved a box of beer, purchased by Mr Colwill, into the hallway. The appellant confronted Mr Carruthers and punched him in the head. This was the subject of the uncontested common assault charge.

[34]   Mr Colwill then intervened, after which the appellant asked him to leave his home. Mr Colwill went to leave the flat. The appellant armed himself with a hunting knife and followed Mr Colwill out into the hallway. From this point on, Mr Carruthers could not see what happened, but Mr Carruthers gave evidence that he could hear banging and crashing in the hallway and bathroom. It was these events, in the hallway and bathroom, that were the subject of the hearing.

[35]   Also undisputed is the  fact  that,  as  a  result  of  the  appellant’s  actions,  Mr Colwill suffered severe injuries that meant he had to be taken by ambulance to the hospital, where he underwent almost 10 hours of emergency surgery and required blood donations equivalent to 10 times his entire blood volume. Mr Colwill had the following injuries:

(a)3 cm long laceration (i.e., cut of the skin) to right temple with injury to underlying temporal artery;

(b)1 cm long laceration to right nose with injury to internal nasal structures, and an underlying bone fracture;

(c)two lacerations to upper (3 cm long) and lower (4 cm long) lips, with the lower lip laceration penetrating through the lip and into the oral cavity;

(d)10 cm laceration to left cheek, deep to muscle tissue and injuring an underlying branch of the facial nerve;

(e)three separate penetrating wounds to the left side of the neck, one of which penetrated the carotid sheath, which is the canal which carries the carotid artery and internal jugular vein;

(f)1.5 cm long wound to left chest wall, adjacent to the sternum, into the pectoral muscle;

(g)4 cm long wound which penetrated 15–20 cm deep, through the left chest wall, through the left lung, through the diaphragm, through the stomach and ending in the pancreas;

(h)3 cm laceration to the base of the left thumb with lacerations to the underlying artery and nerves; and

(i)2 cm incision to right upper arm.

[36]   While the appellant accepts that he used unreasonable force, he argues that he was acting in self-defence. His account of events was that, when Mr Colwill and the appellant were in the hallway, Mr Colwill had immediately put his arm around the appellant’s neck in a headlock, leading to a struggle that placed them in the bathroom, with the appellant still in a headlock. The appellant said he was struggling to breathe and was terrified and panicked. The appellant said that Mr Colwill flipped him into the bath, with both of them ending up there – the appellant was underneath Mr Colwill in the bath, on his back, with Mr Colwill on top of him, still having him in a headlock.

[37]   The appellant said that he started to swing wildly with the knife to break free of the chokehold because he thought he was going to pass out and had no other option. The appellant said that, after this, he was able to break the headlock and breathe again. He said he then left the bath, punched Mr Colwill a few times and slashed him once more with the knife in the face.

[38]   The appellant called two expert witnesses. The first was Dr Drummond, who gave evidence that confirmed a person could be strangled without suffering any visible injury and that, if the strangulation lasted sufficiently long and was sufficiently hard, it would cause impairment of cognition due to oxygen deprivation of the brain. The second was Ms McElhinney, a forensic scientist, who gave evidence on the distribution of blood found at the scene.

[39]   The Crown called several witnesses, including Mr Colwill, who remembered nothing of the altercation itself, and Mr Carruthers, who had not seen the altercation. The key Crown witnesses were Ms Knight, a forensic scientist who gave expert evidence on the distribution of blood found at the scene, and two police detectives, both of whom gave evidence that, when they spoke to the appellant at the scene, he put an arm over his face rather than his neck in demonstrating the way in which he said that Mr Colwill had strangled him. Both forensic scientists gave similar evidence on the distribution of blood found at the scene, as I come on to describe.

The Judge’s decision

[40]   The Judge began by explaining that the burden was on the prosecution to negate beyond reasonable doubt that the appellant was acting in self-defence. The Judge accepted the evidence given by Dr Drummond on strangulation. He did not understand there to be any significant difference in the opinions of the two expert forensic scientists about the blood found at the scene; no difference that was material to the decision he was required to make.

[41]   The Judge found that the appellant had not acted in self-defence because his account was not credible. In particular, he made the following findings:

(a)The appellant’s account that he had remained calm and measured, particularly in relation to the location of the box of beer and his desire for Mr Colwill to leave the flat, was not reflected by the evidence: having already punched Mr Carruthers, he followed Mr Colwill with a knife.

(b)The appellant’s account of being flipped into the bath while still in a headlock was intuitively implausible.

(c)The appellant’s account of being flipped into the bath and inflicting the vast majority of the injuries while underneath Mr Colwill, was contradicted by the following forensic evidence:

(i)Both forensic experts agreed that at some point Mr Colwell was at the foot of the bath as blood had dripped from an injury there.

(ii)Ms Knight was of the opinion that some of Mr Colwell’s injuries were likely to have occurred as he stood at the foot of the bath because of the damage to the shower curtain and the blood on the inside of the curtain.

(iii)There was evidence that a sharp object had penetrated the shower curtain from the outside of the curtain in several places and, in some places, the knife had gone through blood that had been deposited already on the inside of the curtain.

(d)The appellant’s account of inflicting the vast majority of the injuries while underneath Mr Colwill, on his back and in a headlock, was implausible given the nature of some of the wounds. The Judge pointed in particular to the 15–20 cm deep wound through Mr Colwill’s pectoral muscle and the multiple wounds to Mr Colwill’s face.

(e)The event, and the claim of self-defence, was very similar to the actions he found established for the charge of causing grievous bodily harm.

(f)The appellant’s explanation, including that he only inflicted one of the 12 wounds after escaping the headlock, was convenient.

[42]The Judge concluded:

[37] Ultimately having considered the evidence I am satisfied that the defendant was upset and aggressive illustrated by his actions which included him initially punching Mr Carruthers. The defendant has pursued Mr Colwill with a knife. When Mr Colwill was confronted by the defendant with the knife there has been a struggle between the defendant and Mr Colwill. I cannot rule out the possibility that during the struggle Mr Colwill has at some point had the defendant in a headlock. While it contradicts even the defendant’s evidence, I cannot rule out the possibility that some injury was sustained by Mr Colwill during this struggle. However, I am sure that the significant and serious injuries sustained by Mr Colwill to his face and chest area were sustained by him when he was sitting and or prone in the area of the bath where the majority of the blood was located after any threat to the defendant had passed and that when the defendant inflicted those injuries, he was not acting in self-defence but rather out of anger and frustration.

[43]The appellant submits that:

(a)the Judge erred in finding that the forensic evidence conflicted with his own evidence; and

(b)the fact that the defendant was acting out of anger and frustration did not preclude a finding of self-defence.

[44]   The appellant emphasises, on both points, that his evidence was the only direct evidence of the incident.

Approach on appeal

[45]   Under s 250 of the Criminal Procedure Act, an appeal from a sentence must succeed if the Court is satisfied that there is an error in the sentence imposed on conviction, for any reason, and that a different sentence should be imposed. This test applies to a finding in a disputed facts hearing, as it relates to the sentence imposed, rather than to a conviction. As with a conviction appeal stemming from a judge-alone hearing, an appeal from the outcome of a disputed facts hearing will proceed by rehearing and the approach set out by the Supreme Court in Sena v Police, explained above, will apply: a failure to provide reasons is an error and the appeal court is to come to its own assessment of the facts while having regard to the trial judge’s advantage in assessing the credibility of witnesses.24

[46]   In a disputed facts hearing where self-defence is advanced, the prosecution has the burden of negating beyond reasonable doubt that the defendant was acting in self- defence – as noted by the Judge.

Discussion

[47]   The appellant argues that the appellant’s account of events was not inconsistent with the  forensic  evidence.  He  draws  particular  attention  to  the  evidence  of  Ms Knight, who accepted there were many aspects of the scene that were not certain, including that it was not possible to be certain where different injuries were sustained.

24     Marsh v R [2019] NZHC 310 at [25].

[48]   I cannot accept that there was an error on the basis alleged. The Judge acknowledged the limits of the forensic evidence given and he was entitled to accept it as “likely” that Ms Knight thought that some injuries occurred while Mr Colwill was standing at the foot of the bath. Had that been the only evidence the Judge had relied on in coming to the conclusion he did, a view could well be reached that the Crown had not discharged its burden of proof. However, the Judge relied on a number of factors, of which this was but one.

[49]   The appellant argues that the final sentence of the Judge’s decision sets out a binary that permeates the Judge’s reasoning: the appellant was “not acting in self- defence but rather out of anger and frustration”.25 He submits that this is wrong, because the appellant could have been acting out of anger and frustration and acting in self-defence.

[50]   Reference is made by the appellant to the Court of Appeal’s decision in R v Howard where the Court recognised that a defendant who is angry – or even acting out of revenge or spite – may also fear a future assault so that their actions are a reasonable response to a perceived threat. The Court observed that an angry or spiteful mindset would not prevent a defendant from availing themselves of the defence.26

[51]   I do not regard the Judge’s decision on this point as being binary. He did not suggest that a person could not be acting in self-defence while angry and frustrated. Instead, I believe the Judge to be saying in the final sentence that in this case, the appellant was not acting to defend himself because he was acting exclusively with a different motive; he was angry at and frustrated with Mr Colwill. The Judge found that the appellant was not calm, as he had tried to portray himself, but, rather, frustrated and angry, as set out in [41](a)] above. This finding conflicted with the appellant’s general account of events and undermined his general credibility. The way in which the Judge expressed his conclusion on the point was not in my view reflective of a binary approach.

25     R v Downes (judge-alone trial and disputed facts hearing decision) at [37] and [32] was emphasised also.

26     R v Howard (2003) 20 CRNZ 319 (CA) at [25]–[27].

[52]   The appellant has submitted also that the Judge did not acknowledge sufficiently several miscellaneous pieces of evidence that he says are favourable to his account of events. I do not view them as material in the face of the significant evidence that conflicted with the appellant’s account and, when considering the context of the decision, do not believe their exclusion amounted to a lack of adequate reasoning.

Conclusion

[53]   Accordingly, I do not find there to have been any error in the Judge’s decision on the disputed facts hearing.

The appellant’s sentence

[54]   It was agreed during the hearing that the appropriate approach would be for findings to be made on the appeal against conviction following the judge-alone trial and on the appeal against the Judge’s findings in the disputed facts hearing in the first instance. Separate submissions could then be received to consider whether adjustments should be made to the defendant’s sentence as a consequence. On the basis of the findings I have made, further submissions on sentence are not needed.

Conclusion

[55]The appeal is declined.

Radich J

Solicitors:

Hunter de Groot, Wellington for Appellant Crown Solicitor, Wellington for Respondent