Gorrie v Police - [2019] NZCA 54

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA553/2018
[2019] NZCA 54

BETWEEN	DONALD JAMES GORRIE Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Clifford, Mallon and Wylie JJ
Counsel:	Applicant in person M L Wong for Respondent
Judgment: (On the papers)	14 March 2019 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

Mr Gorrie was convicted on one charge of assaulting a child following a Judge‑alone trial before Judge Mabey QC in the District Court at Whakatane.[1] He then appealed against both conviction and sentence. The appeal was dismissed by Edwards J.[2]
[1]Police v Gorrie [2018] NZDC 4160.
[2]Gorrie v Police [2018] NZHC 2129.
Mr Gorrie now seeks leave to further appeal both his conviction and sentence, pursuant to ss 237 and 253 of the Criminal Procedure Act 2011. The Crown opposes the grant of leave.

Background

Mr Gorrie owns supermarket premises in Edgecumbe. On 18 January 2017, the complainant, a 10 year old boy, was near the entrance to Mr Gorrie’s supermarket. The complainant had previously been banned from entering Mr Gorrie’s supermarket.
According to the complainant, when he saw Mr Gorrie he went to ride off on his bicycle because he knew he had been banned. Mr Gorrie followed him and grabbed him by a hood forming part of his jacket. He was pulled off his bicycle and thrown to the ground. Mr Gorrie then kneed him in the back, releasing him only when his brother arrived.
Mr Gorrie’s version of events was rather less dramatic but there was no dispute that a physical altercation occurred and that that altercation constituted an assault.
The issue at trial was whether Mr Gorrie acted in defence of another under s 48 of the Crimes Act 1961. Mr Gorrie gave evidence. He said that he assaulted the child to protect people who may have been coming around the corner into the alleyway from being hit by the complainant on his bicycle.
In the District Court, Judge Mabey found that Mr Gorrie had not acted in defence of another. He accepted the evidence of the complainant and another eye witness. The Judge found that there were no other persons in the alleyway and he was satisfied beyond reasonable doubt that Mr Gorrie had not acted in defence of another when he assaulted the complainant. Rather, the Judge found that the Mr Gorrie was angry at the complainant, wanted to chase him away and, if he could catch him, teach him a lesson.[3]
[3]Police v Gorrie, above n 1, at [12].
Mr Gorrie’s appeal against conviction was advanced primarily on the ground that the trial Judge erred in the way in which he considered the issue of defence of another. It was argued that Judge Mabey erred in analysing the issue of defence of another and that he departed from the stepped…

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 Gorrie v Police

Details

AGLC: Gorrie v Police [2019] NZCA 54
Case: [2019] NZCA 54
Decision Date: 14 March 2019 at 3 pm

CaseChat Overview and Summary

Donald James Gorrie applied for leave to bring a second appeal against his conviction and sentence for assaulting a child, which were upheld on appeal by the High Court. The applicant in person was represented by M L Wong for the respondent, New Zealand Police. The Court of Appeal declined the application for leave to bring a second appeal. The Court found that the proposed appeal did not involve matters of general or public importance or a miscarriage of justice. The Court held that the trial judge's findings of fact were supported by evidence and that the sentencing was not manifestly unjust. The Court also dismissed the applicant's claims of a breach of the New Zealand Bill of Rights Act 1990 and inadequate legal representation. The Court noted that the applicant's belated submission regarding the potential loss of his manager's certificate under the Sale and Supply of Alcohol Act 2012 lacked proper evidence and was best assessed by the relevant licensing authority.
The Court of Appeal declined the application for leave to bring a second appeal. The Court found that the proposed appeal did not involve matters of general or public importance or a miscarriage of justice. The Court held that the trial judge's findings of fact were supported by evidence and that the sentencing was not manifestly unjust. The Court also dismissed the applicant's claims of a breach of the New Zealand Bill of Rights Act 1990 and inadequate legal representation. The Court noted that the applicant's belated submission regarding the potential loss of his manager's certificate under the Sale and Supply of Alcohol Act 2012 lacked proper evidence and was best assessed by the relevant licensing authority.

Orders