Davidoff v The Queen - [2018] NZCA 439

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA469/2018
[2018] NZCA 439

BETWEEN	JOHN GARRY DAVIDOFF Appellant
AND	THE QUEEN Respondent

Hearing:	11 October 2018
Court:	Kós P, Woolford and Dunningham JJ
Counsel:	R L Thomson for the Appellant M A Corlett QC for the Respondent
Judgment:	18 October 2018 at 10 am

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence is granted.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is allowed. The sentence of six months’ imprisonment on the charge of assault with intent to injure is quashed and a sentence of five months’ imprisonment is substituted on that charge.

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REASONS OF THE COURT

(Given by Woolford J)

Following a trial by jury, John Garry Davidoff was found guilty of assault with intent to injure, threatening to kill and possessing a knife in a public place without reasonable excuse. On 1 August 2018, he was sentenced by Judge K J Glubb to six months’ imprisonment on the assault charge with concurrent sentences of one month’s imprisonment on each of the other two charges.[1] He now appeals against conviction and sentence.

Factual background

[1]R v Davidoff [2018] NZDC 15763.

Mr Davidoff and the complainant were residents at The Station Backpackers in Auckland. Both were in the common area at around 4.00 pm on 31 May 2017. A fight erupted between the two of them. The Crown alleged that Mr Davidoff shoulder barged the complainant without warning. When the complainant confronted him, Mr Davidoff struck the complainant several times in the face. Mr Davidoff maintained that the complainant initiated the attack and that he was at all times acting in self-defence.
Mr Davidoff had, in addition to the three charges on which he was found guilty, been charged with another three charges in relation to the same incident — injuring with intent to injure, assault with intent to injure and assault with a weapon. The jury, however, found him not guilty of these three charges. Those charges related to allegations Mr Davidoff punched the complainant in the face and thereby broke his jaw, gouged his eyes to break a choke hold and threw a chair at the complainant.
The Judge was of the view that the jury by its verdict was either unsure who initiated the attack or, having determined that one or other of them did, concluded that Mr Davidoff’s actions in relation to the charges on which he was acquitted were taken in self-defence and the force he used was reasonable.[2]
[2]At [3].
The three charges of which Mr Davidoff was found guilty all occurred subsequently. Towards the end of the fight the complainant was on the ground and Mr Davidoff was standing above him. Mr Davidoff was 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. Later, having been separated from the complainant, Mr Davidoff explicitly threatened to kill…

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 [2018] NZCA 439
Case: [2018] NZCA 439
Decision Date: 18 October 2018 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, John Garry Davidoff appealed against his conviction and sentence on charges of assault with intent to injure, threatening to kill, and possessing a knife in a public place without reasonable excuse. The Crown accepted the appeal against sentence but did not accept the appeal against conviction. The factual background was that Davidoff and the complainant were residents at The Station Backpackers in Auckland, where a fight erupted between the two. Davidoff maintained that the complainant initiated the attack and that he was acting in self-defence. Davidoff was found not guilty of three charges relating to the same incident, but was found guilty of the three charges for which he now appeals. Davidoff’s appeal against conviction was based on the inconsistency of the jury’s verdicts and the admissibility of propensity evidence. The Court found that the jury could reasonably have determined that Davidoff was acting in self-defence in relation to the charges upon which he was acquitted, but was no longer acting in self-defence in relation to the charges upon which he was convicted. The Court found that the Judge was correct that the medical notes were confidential and that Davidoff was not disadvantaged by their non-production. Davidoff’s appeal against conviction was dismissed.

Davidoff’s appeal against sentence was based on the argument that the sentence of six months’ imprisonment was manifestly excessive. The Court granted Davidoff’s application to adduce fresh evidence in the form of a report from a psychiatrist, Dr Karl Jansen. The psychiatric report disclosed myriad issues, suggesting that Davidoff possibly suffers from a psychotic illness such as schizophrenia or a bipolar disorder, or alternatively a mixed personality disorder with paranoid, schizotypal and narcissistic “vulnerabilities” or possibly a mild form of autistic spectrum disorder. The Court found that Davidoff’s mental health issues were a mitigating factor relevant to the offender and that the sentence of six months’ imprisonment was therefore quashed and replaced by a sentence of five months’ imprisonment. The Court granted the application to adduce fresh evidence, dismissed the appeal against conviction, and allowed the appeal against sentence, substituting a sentence of five months’ imprisonment on the charge of assault with intent to injure.

Orders