Dunn v The Queen - [2020] NZSC 58

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 8/2020
[2020] NZSC 58

BETWEEN	DARRELL EDWARD JAMES DUNN Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	Applicant in person S K Barr for Respondent
Judgment:	22 June 2020

JUDGMENT OF THE COURT

A The application for an extension of time is granted.
B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant, Mr Dunn, was convicted by a jury of manslaughter and sentenced to seven years and six months’ imprisonment.[1] His appeal against conviction was dismissed by the Court of Appeal.[2] The applicant seeks leave to appeal that decision.

Extension of time

[1]R v Dunn [2016] NZHC 2552.

[2]Dunn v R [2019] NZCA 608 (Kós P, Venning and Thomas JJ) [CA judgment].

The notice of application for leave was filed two weeks out of time.[3] The applicant is self‑represented and has given an explanation for the delay. The Crown does not oppose an extension. We grant the application.

Background

[3]Supreme Court Rules 2004, r 11.

Mr Dunn and the victim, Mr Wharawhara, were homeless. On the evening of 10 November 2015, they and three others were listening to music and drinking alcohol at a picnic table in a park near the Auckland Domain. An argument broke out between Mr Dunn and Mr Wharawhara, which became a fight. It was contested at trial whether Mr Wharawhara tried to attack Mr Dunn with a knife and whether Mr Dunn subsequently kicked Mr Wharawhara in the head, but it is common ground that Mr Dunn hit Mr Wharawhara several times. Mr Dunn and the other members of the group then left the park. It was about 10 pm.
Shortly after, Mr Topia (another homeless man in the park) found Mr Wharawhara lying on his back by the picnic table and attempted to resuscitate him, but without success. Mr Topia ran to alert the nearby hospital’s emergency department, and was told to wait there for the ambulance so he could show them Mr Wharawhara’s location. A police car was despatched to the hospital. But by the time police arrived at 10.37 pm, Mr Topia had gone.
In the meantime, other homeless people in the park had checked on Mr Wharawhara and made a second call for an ambulance and the police. Another police car was despatched at 10.58 pm to investigate this report. When it arrived at the park, Mr Wharawhara could not be found. In fact, Mr Topia had returned and carried Mr Wharawhara to hospital. In the absence of a victim, Sergeant Kirtlan, who responded to the second call, stood the ambulance down at 11.14 pm.
When Mr Wharawhara arrived at the emergency department, he was already clinically dead. Efforts to revive him were unsuccessful, and he was declared deceased at 11.19 pm.

Court of Appeal judgment

At trial, the forensic pathologists (Dr Garavan called by the Crown and Dr Hamilton called by the defence) agreed…

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 Dunn v The Queen

Details

AGLC: Dunn v The Queen [2020] NZSC 58
Case: [2020] NZSC 58
Decision Date: 22 June 2020

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal by Darrell Edward James Dunn against his conviction and sentence for manslaughter. The applicant, Mr. Dunn, was convicted by a jury and sentenced to seven years and six months' imprisonment. His appeal against conviction was dismissed by the Court of Appeal, and he now seeks leave to appeal that decision. The notice of application for leave was filed two weeks out of time, but the applicant provided an explanation for the delay. The Crown did not oppose the extension, and the Supreme Court granted the application for an extension of time.

The legal issues before the court were whether the application for an extension of time should be granted, and whether leave to appeal should be granted. The court assessed the application based on the arguments presented by Mr. Dunn, which included the claim that the experts breached the code of conduct for expert witnesses, the delay in the ambulance service and specifically Sergeant Kirtlan's decision to stand the ambulance down constituted an intervening cause of death, Mr Topia carrying Mr Wharawhara could also have been an intervening cause, the force Mr. Dunn used was reasonable as self-defence, or he committed the assault involuntarily under a state of automatism, and the trial Judge should have warned the jury about the reliability of the Crown's lay witnesses because they were affected by alcohol. The Crown argued that the Court of Appeal had already dealt with these issues and found them to be without merit.

The Supreme Court found that the application raised no issue of general or public importance and that there was no appearance of a miscarriage of justice arising out of the Court of Appeal's treatment of the arguments. The court did not permit an appeal on a ground not raised in the Court of Appeal unless there was a real possibility the ground could reveal a miscarriage of justice. The arguments relating to automatism and a reliability direction were not raised in the Court of Appeal, and neither argument suggested such a possibility in this case.

The Supreme Court granted the application for an extension of time and dismissed the application for leave to appeal. The applicant's conviction and sentence for manslaughter stood.

Orders