Gowing v The Queen - [2017] NZCA 133

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/2017
[2017] NZCA 133

BETWEEN	NIGEL FRASER GOWING Appellant
AND	THE QUEEN Respondent

Hearing:	9 March 2017
Court:	Winkelmann, Woodhouse and Collins JJ
Counsel:	N M Dutch for Appellant R D Butler for Respondent
Judgment:	26 April 2017 at 3 pm

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence on appeal is declined.
BThe appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Winkelmann J)

Following a four-day judge-alone trial in the District Court at Tauranga before Judge J E MacDonald, Mr Gowing was convicted of one charge of injuring with reckless disregard for the safety of others.[1] He was found not guilty on an alternative charge of injuring with intent to cause grievous bodily harm. On 20 January 2017 he was sentenced to six months’ home detention and ordered to pay reparation of $4,000.[2] He appeals against both conviction and sentence.

Background

The offending

[1]R v Gowing [2016] NZDC 26887.

[2]R v Gowing [2017] NZDC 925 at [19]–[20].

Mr Gowing drove his quadbike into the complainant, at speed, resulting in the complainant having a broken leg and severe bruising. The only material issue at trial was whether the collision was accidental or not. Most of the narrative of events was not in dispute.
At the time of these events, Hollie was Mr Gowing’s partner and the mother of his children. The family lived on a rural property. The complainant is married to Hollie’s mother. The couple decided to visit Hollie and the children on the morning of 22 November 2015. Mr Gowing was angered by the proposed visit and, in an attempt to prevent them coming to the house, drove his vehicle to the bottom of the driveway to padlock the gate. The couple simply climbed the gate and started walking up the lengthy driveway to the house.
Hollie sent a number of texts to her mother. We do not set those out here but they conveyed, in very plain terms, that Mr Gowing was enraged by the proposed visit and did not want the couple on the property.
As the two made their way up the incline of the driveway, Mr Gowing began travelling down it on his quadbike. Coming around a corner in the driveway he saw the complainant and his wife. He veered onto the grass shoulder of the driveway, striking the complainant in the leg. An ambulance was called and the complainant was taken to a hospital where he was found to have bruising and a broken fibula.
Mr Gowing’s account of what occurred was that he had been riding his quadbike to his parents’ house. The corner in question is a blind corner about 600 metres from his house. He was in fifth gear and was going as fast as he could. As he rounded the corner he saw the complainant and his wife walking on the left‑hand side of the driveway, with the complainant’s wife to…

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 Gowing v The Queen

Details

AGLC: Gowing v The Queen [2017] NZCA 133
Case: [2017] NZCA 133
Decision Date: 26 April 2017 at 3 pm

CaseChat Overview and Summary

The appellant, Mr Gowing, was convicted in the District Court of injuring with reckless disregard for the safety of others after driving his quadbike into the complainant. The complainant suffered a broken leg and severe bruising. Mr Gowing was acquitted of injuring with intent to cause grievous bodily harm. He appeals against his conviction and sentence. The Court of Appeal declines the application to adduce fresh evidence on appeal. The appeals against conviction and sentence are dismissed. The Court of Appeal found that the District Court Judge was entitled to accept the evidence of the complainant and his wife in respect of where they were standing when Mr Gowing came around the corner. They had moved off the road onto the shoulder when they heard the quadbike approaching. The Court of Appeal found that the District Court Judge was not wrong to reject the expert evidence on the issue of speed. The Judge accepted Mr Gowing’s evidence as to the speed he was travelling and was satisfied that he drove in a reckless manner, knowing full well that his actions were likely to jeopardise the safety of others. The Court of Appeal found that the District Court Judge was correct to find the offending was at a high level of recklessness. The bike was effectively a weapon and the consequences could have been much worse. The sentence of six months’ home detention was appropriate.

Orders