Deo v The Queen - [2012] NZCA 482

IN THE COURT OF APPEAL OF NEW ZEALAND

CA207/2012
[2012] NZCA 482

BETWEEN SHARN LIONEL BLACK
Appellant

AND THE QUEEN
Respondent

Hearing: 11 October 2012

Court: Stevens, Venning and Dobson JJ

Counsel: H D M Lawry for Appellant
D J Boldt for Respondent

Judgment: 19 October 2012 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Venning J)

Following trial in the District Court at Auckland Sharn Black was convicted on one count of wounding with intent to cause bodily harm. He appeals against the conviction on the grounds of miscarriage of justice.
The basis for the appeal is his challenge to a ruling by Judge Gibson declining to allow trial counsel to cross-examine the complainant about his own previous conviction for injuring with intent to injure.[1]

Facts

[1] R v Black DC Auckland CRI-2011-044-2126, 15 November 2011.

On the evening of 1 April 2011 there was a party at Amber Collins’ home in Torbay, North Shore. The appellant was present. During the course of the evening the complainant, together with two of his associates, also came to the party. The appellant and the complainant were known to each other. They had formerly been friends but apparently that relationship had broken down. Issues had developed between them and the appellant was concerned about retribution.
The appellant was standing in a doorway at the property. When he saw the complainant arriving he went down the hallway, into the bathroom, locked the door and then climbed out the window into the garden at the back of the house. The complainant said that Ms Collins told him she wanted the appellant to leave the party. He followed the appellant down the hallway to the bathroom. The complainant banged on the bathroom door, heard a noise that sounded like the window and figured that the appellant had jumped out the window.
The complainant then went around the side of the house, up the driveway to the corner of the house, and at that stage noticed someone standing in or by a hedge. It was the appellant. The complainant said he walked over to the appellant, touched his shoulder, raised his arm and said to the appellant words to the effect “You’ve gotta go,” and “You have to f— off ...”. The complainant said that while telling the appellant to go he felt like he had been punched in the ribs. He said he then grabbed the appellant and they tussled. The complainant said he was not paying too much attention to the punch as they tussled. But he says that a short time later he saw a knife that looked like a hunting knife in the appellant’s hand. After they broke free of the tussle the appellant ran off. It was only then that the complainant noticed one side of his chest was warm. He felt weird. He then noticed blood pouring out of his shirt.
The complainant collapsed shortly afterwards and was taken to…

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 Deo v The Queen

Details

AGLC: Deo v The Queen [2012] NZCA 482
Case: [2012] NZCA 482
Decision Date: 23 October 2012

CaseChat Overview and Summary

The appeal was brought by Sharn Lionel Black against the decision of the District Court at Auckland, which found him guilty of wounding with intent to cause bodily harm. The sole basis for the appeal was a ruling by the trial judge, Judge Gibson, which declined to allow trial counsel to cross-examine the complainant about a previous conviction for injuring with intent to injure. The appellant argued that the ruling constituted a miscarriage of justice.

The primary legal issue was whether the trial judge correctly exercised his discretion to exclude the cross-examination about the complainant's prior conviction. The court examined whether the evidence was relevant under s 7 of the Evidence Act 2006 and, if so, whether it should be excluded due to potential prejudice under s 8. The appellant argued that the evidence was relevant because it suggested the complainant might have brought a knife to the incident. However, the trial judge found that the evidence was not relevant as there was no basis to suggest the complainant had the knife.

The Court of Appeal found that the evidence of the complainant's previous conviction was not relevant to the determination of the proceeding because there was no evidentiary basis to support the theory that the complainant brought the knife to the incident. The court also noted that the risk of prejudice to the complainant outweighed any potential probative value of the evidence. The court concluded that the trial judge did not err in his ruling and dismissed the appeal.

The appeal was dismissed, and no further orders were made.

Orders