Legal Research
Cases
Dunn v The Queen

Dunn v The Queen

Case [2019] NZCA 608 3 December 2019

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA561/2016
[2019] NZCA 608

BETWEEN	DARRELL EDWARD JAMES DUNN Appellant
AND	THE QUEEN Respondent

Hearing:	31 October 2019
Court:	Kós P, Venning and Thomas JJ
Counsel:	Appellant in person P E Dacre QC as standby counsel S K Barr for Respondent
Judgment:	3 December 2019 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mr Dunn and Mr Wharawhara were members of Auckland’s homeless community. They lived on the streets and in the parks of that city. They would spend time together, walking the streets, “hustling” for money, and drinking. On the evening of 10 November 2015, they and three others found themselves in Outhwaite Park, across the road from the Auckland Domain. An argument broke out between Mr Dunn and Mr Wharawhara. The argument became a fight. The end result was that Mr Wharawhara died and Mr Dunn now resides in the Auckland South Corrections Facility.
Mr Dunn appeals his conviction for manslaughter. He does not complain about the sentence.[1] Or about Palmer J’s summing up. Or about his counsel at trial, although he has since dispensed with his services and those of a number of other lawyers.[2] Rather, Mr Dunn says there is fresh evidence that casts doubt on the cause of death. And that would support self-defence.
[1]Mr Dunn was sentenced to seven years and six months’ imprisonment: R v Dunn [2016] NZHC 2552 [Sentencing notes]. An appeal against sentence was abandoned on 10 September 2019.
[2]As a consequence Mr Dacre QC was appointed standby counsel for Mr Dunn, in accordance with the principles stated by this Court in Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392. On the appeal Mr Dacre handled the examination and cross-examination of witnesses, and delivered most of Mr Dunn’s submissions.
Before addressing these claims, we need to set out the exact sequence of events, as it occupied some time at the hearing of this appeal. It is also relevant to an argument Mr Dunn himself presented to us. It was that, had the police or ambulance service responded more promptly, death could have been averted.

The exact sequence of events

The evidence suggests that Mr Dunn and Mr Wharawhara arrived at Outhwaite Park at about 8 pm on the evening of 10 October 2015. They were there with three other men, Jack Roberts, Alfred Manu and Virgil Davidson. The five sat at a picnic table in the park talking, listening to music on Mr Wharawhara’s cellphone, and drinking alcohol.
What happened next was described by the Judge in sentencing:
[4] You and Mr Wharawhara argued — perhaps over the use of his phone or him not being passed drinks. He was irritating you. You hit him and he fell off the bench to the ground. He got back up. You said at trial that Mr Wharawhara said he was going…

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 [2019] NZCA 608
Case: [2019] NZCA 608
Decision Date: 3 December 2019 at 11 am

CaseChat Overview and Summary

The case of Dunn v The Queen involves an appeal by the appellant, Darrell Edward James Dunn, against his conviction for manslaughter. The respondent, The Queen, is the state. Dunn was convicted for the manslaughter of Mr Wharawhara, a fellow member of Auckland's homeless community, following a physical altercation between the two in Outhwaite Park. Dunn claims that fresh evidence casts doubt on the cause of death, suggesting it may support a claim of self-defence.

The legal issues the Court had to decide were whether the new expert evidence presented by Dunn could be admitted on appeal and if it was cogent enough to warrant a different verdict. The Court had to consider the principles governing the admission of new expert evidence on appeal, which include the freshness, credibility, and cogency of the evidence. Fresh evidence is admissible if it might reasonably have led to a different verdict when considered alongside other evidence given at trial.

The Court found that while the new evidence raised the possibility that Mr Wharawhara's death was caused by acute alcohol intoxication rather than the assault, it was not cogent enough to warrant a different verdict. The evidence presented by the Crown's expert, Dr Garavan, and the rebuttal evidence from Dunn's expert, Dr Hamilton, demonstrated a logical and uncontroverted path from the assault to the aspiration of blood and stomach contents, leading to death. The Court concluded that the new evidence did not substantiate the probability of death by an independent cause supervening despite the assault, and thus, it would not have led a jury to be unsure that the assault was a substantial and operative cause of death.

The appeal against conviction was dismissed, and Dunn remains convicted for the manslaughter of Mr Wharawhara.

Orders