Gash v R - [2013] NZCA 309

IN THE COURT OF APPEAL OF NEW ZEALAND

CA808/2012
[2013] NZCA 309

BETWEEN	PHILIP JOHN GASH Appellant
AND	THE QUEEN Respondent

Hearing:	20 June 2013
Court:	Wild, Miller and MacKenzie JJ
Counsel:	A J McKenzie and R D Ashton for Appellant J E Mildenhall for Respondent
Judgment:	17 July 2013 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

The appeal

The appellant faced trial in the High Court at Christchurch before Kós J and a jury on one count of attempted murder, an alternative count of wounding with intent to cause grievous bodily harm, one count of assault with intent to injure, one count of male assaults female, one count of threatening to kill or cause grievous bodily harm, and one count of aggravated burglary. He was acquitted on the count of attempted murder and convicted on all other counts.
He appeals against his convictions on the following grounds:
(a)that certain evidence ruled admissible in a pre-trial judgment should not have been admitted;
(b)the trial Judge erred in permitting amendments to the alternative count in the indictment, by amending it from causing grievous bodily harm with that intent, to wounding with intent to cause grievous bodily harm;
(c)there was late disclosure of, and failure to correct an error in, the date of a witness statement;
(d)misdirection by the Judge in the summing up in a number of respects; and
(e)the evidence of one of the complainants was so unreliable that no reasonable jury could have relied on his evidence in relation to count 2.
The appellant submits that the above grounds individually or in combination constitute a miscarriage of justice to such a degree that a retrial is warranted.

Facts

The appellant and Ms A were married in 2008 and separated in November 2010. On 9 April 2011 the appellant went to Ms A’s home. She warned him to leave and called the police. A trespass notice was issued by police. A week later, on 16 April 2011, Ms A met with the appellant to discuss matters relating to the termination of their marriage. She had applied for a protection order. Ms A’s evidence was that the appellant told her that if she did not drop the protection order and the requirement that the appellant do a Stop Violence course, he would not be doing it and “if I made him do it then he was going to come to my house, cut my cat’s throat and my throat and anybody else that got in his way.”[1] That formed the basis for the count of threatening to kill or do grievous bodily harm.
[1]Notes of Evidence at 8/9–11 [NOE].
About two months later, on 24 June 2011, the appellant went to a caravan located on Ms A’s property which was being used by Ms A and Mr D, another person living at the property, as a bedroom. They were both in the caravan. He entered the caravan armed…

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 Gash v R

Details

AGLC: Gash v R [2013] NZCA 309
Case: [2013] NZCA 309
Decision Date: 17 July 2013 at 10 am

CaseChat Overview and Summary

Philip John Gash appealed his convictions on various charges, including attempted murder, assault with intent to injure, and aggravated burglary. Gash and Ms A were married in 2008 but separated in November 2010. Gash's appeal was based on several grounds, including the admissibility of certain evidence, the amendment of an alternative count in the indictment, late disclosure of a witness statement, alleged misdirections by the trial judge, and the reliability of one of the complainants' evidence. The Court of Appeal examined each ground of appeal and found them to be without merit. The evidence in question was deemed admissible as it was relevant to the context of the relationship breakdown and the protection order. The amendment of the indictment was found to be justified under the relevant section of the Crimes Act. The late disclosure of the date of a witness statement did not prejudice Gash's case, and the trial judge's summing up did not contain any misdirections. Finally, the Court held that it was not its function to revisit the jury's verdict on the basis of the written record of the evidence, and the evidence of the complainant was not so unreliable that no reasonable jury could have relied on it. Consequently, the appeal was dismissed.

Orders