Davidoff v The Queen - [2019] NZSC 30

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 112/2018
[2019] NZSC 30

BETWEEN	JOHN GARRY DAVIDOFF Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person Z A Fuhr for Respondent
Judgment:	20 March 2019

JUDGMENT OF THE COURT

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

BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Davidoff was convicted after trial of assault with intent to injure, threatening to kill and possessing a knife in a public place without reasonable excuse. He was sentenced to an effective term of imprisonment of six months.[1] His appeal to the Court of Appeal against conviction was dismissed.[2] His sentence was reduced on the appeal to a term of imprisonment of five months. Mr Davidoff now seeks leave to appeal to this Court against conviction and sentence.

Background

[1]R v Davidoff [2018] NZDC 15763 (Judge Glubb) [Sentencing remarks].

[2]Davidoff v R [2018] NZCA 439 (Kós P, Woolford and Dunningham JJ) [CA judgment].

The incident giving rise to the charges took place at backpackers’ accommodation in Auckland at which both Mr Davidoff and the complainant were residents. A fight between the two men broke out. Mr Davidoff’s defence was that the complainant initiated the attack and he was acting in self‑defence.
Mr Davidoff also faced three other charges in relation to this incident, injuring with intent to injure, assault with intent to injure and assault with a weapon. He was found not guilty of these charges.
The trial Judge, Judge Glubb, in sentencing Mr Davidoff considered the jury by its verdicts was “either unsure” which of the two men initiated the attack or having decided which of the two did so determined that Mr Davidoff’s actions at that point were in self‑defence.[3]
[3]Sentencing remarks, above n 1, at [3].
The charges of which Mr Davidoff was found guilty related to events that occurred subsequently. At that point Mr Davidoff was, as the Court of Appeal noted, “effectively being pulled away by others and it was at that time that Mr Davidoff deliberately kicked the complainant to the back of the head”.[4] After the two men had been separated, the Crown case was that Mr Davidoff threatened to kill the complainant. When Mr Davidoff was spoken to by the police he had a folding knife.

The proposed appeal

[4]CA judgment, above n 2, at [5].

The proposed grounds of appeal canvas a number of matters including the submission there has been a miscarriage of justice arising from the evidence produced at trial; that confidential medical notes relating to the complainant should have been ruled admissible at trial; the sentence was manifestly excessive; and that counsel’s conduct of the trial was not competent. In terms of the conviction appeal Mr Davidoff essentially maintains the position he did not start the fight and was acting in self‑defence.
The first three matters were considered by the Court of Appeal.…

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 Davidoff v The Queen

Details

AGLC: Davidoff v The Queen [2019] NZSC 30
Case: [2019] NZSC 30
Decision Date: 20 March 2019

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicant, John Garry Davidoff, sought leave to appeal against his conviction and sentence for assault with intent to injure, threatening to kill, and possessing a knife in a public place without reasonable excuse. Davidoff's appeal against conviction was previously dismissed by the Court of Appeal, and his sentence was reduced from six months to five months. Davidoff sought leave to appeal to the Supreme Court, arguing that there had been a miscarriage of justice due to the trial evidence, that confidential medical notes should have been admitted, the sentence was manifestly excessive, and that his trial counsel's conduct was incompetent.

The court had to decide whether there were any matters of general or public importance that warranted leave to appeal. The court noted that the principles applicable to inconsistent verdict appeals had been addressed in B (SC 12/2013) v R. The court also found that the issues raised by Davidoff were specific to the particular factual circumstances of his case and did not give rise to the appearance of a miscarriage of justice. The court found that the new matters raised did not indicate a risk of a miscarriage.

The court granted the application for an extension of time to appeal but dismissed the application for leave to appeal. The court found that the issues raised by Davidoff were specific to the particular factual circumstances of his case and did not give rise to the appearance of a miscarriage of justice. The court found that the new matters raised did not indicate a risk of a miscarriage. The court found that the principles applicable to inconsistent verdict appeals had been addressed in B (SC 12/2013) v R.

This case serves as a reminder that leave to appeal to the Supreme Court is not automatically granted and must be justified on the basis of matters of general or public importance. The court found that the issues raised by Davidoff were specific to the particular factual circumstances of his case and did not give rise to the appearance of a miscarriage of justice. The court found that the new matters raised did not indicate a risk of a miscarriage.

Orders