Flavell v The Queen - [2015] NZCA 336

IN THE COURT OF APPEAL OF NEW ZEALAND

CA744/2014
[2015] NZCA 336

BETWEEN	SONNY WIREMU FLAVELL Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2015
Court:	Stevens, Heath and Collins JJ
Counsel:	A G Speed for Appellant M A Corlett for Respondent
Judgment:	28 July 2015 at 10.15 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against conviction for breaching a protection order is allowed and the conviction is quashed.
CThe appeal against conviction for injuring with intent to injure is dismissed.
DThe appeal against sentence is allowed. The sentence of two years and three months’ imprisonment is quashed and substituted with a sentence of two years’ imprisonment.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

Following a jury trial in the Auckland District Court Mr Flavell was convicted on two charges, namely:
(a)injuring with intent to injure (the injuring charge);[1] and
(b)breach of a protection order (the protection order charge).[2]
[1]Crimes Act 1961, s 189(2).
[2]Domestic Violence Act 1995, s 19.
The jury acquitted Mr Flavell on one charge of male assaults female.[3] Mr Flavell was sentenced to two years and three months’ imprisonment on the injuring charge and 18 months’ imprisonment on the protection order charge.[4] The sentences are concurrent.
[3]Crimes Act, s 194(b).
[4]R v Flavell DC Auckland CRI-2013-004-10738, 18 September 2014 [sentencing notes].
Mr Flavell has applied to appeal out of time his convictions on two grounds, namely:
(a)that the protection order charge was wrong in law and should never have been before the jury; and
(b)the evidence relating to the protection order charge was so prejudicial to the injuring charge, that Mr Flavell suffered a miscarriage of justice in relation to that conviction.
The Crown properly raises no objection to Mr Flavell’s appeal being pursued out of time. Mr Flavell’s appeal raises issues that require consideration by this Court and we therefore grant leave to appeal.

Background

In 2000 a protection order was issued against Mr Flavell in favour of his former partner. At that time, the protection order extended to Mr Flavell’s son, Taylor Flavell, who was then living with his former partner. The protection order contained standard conditions, including the requirement Mr Flavell not physically abuse her or Taylor Flavell.
Under s 16(1A) of the Domestic Violence Act 1995, a protection order ceases to apply to a child of the person in whose favour an order is made once the child turns 17 and if he or she is no longer “ordinarily or periodically” residing with the person who has been granted the protection order.
As at 21 September 2013, Taylor Flavell had turned 20 and was living with his partner at an address in Mt Roskill. Mr Flavell’s former partner lived at her home a short distance from where Taylor Flavell and his partner lived. Mr Flavell lived at another address, also near where Taylor Flavell and his partner lived.
On the evening of 21 September 2013 Taylor Flavell…

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 Flavell v The Queen

Details

AGLC: Flavell v The Queen [2015] NZCA 336
Case: [2015] NZCA 336
Decision Date: 28 July 2015 at 10.15 am

CaseChat Overview and Summary

Sonny Wiremu Flavell sought to appeal his conviction and sentence imposed by the Auckland District Court. Flavell was convicted of injuring with intent to injure and breaching a protection order. Flavell's appeal was out of time and required special leave. The Court of Appeal granted leave to appeal and allowed the appeal against the protection order conviction, quashing it. The appeal against the injuring charge conviction was dismissed, as was the appeal against sentence in part. The Court of Appeal substituted a lesser sentence of two years' imprisonment.

The primary legal issue was whether the inclusion of the protection order charge and the evidence relating to it caused a miscarriage of justice in relation to the injuring charge. The Court of Appeal held that while the evidence regarding the protection order may have been prejudicial, there was no real risk it affected the jury's verdict on the injuring charge. There was no miscarriage of justice. However, the Court of Appeal did allow the appeal against the protection order conviction as it was wrong in law. The Court of Appeal substituted a lesser sentence of two years' imprisonment for the injuring charge.

Orders