Grace v The Queen - [2019] NZSC 56

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 19/2019
[2019] NZSC 56

BETWEEN	ROBERT JOHN SOLOMON GRACE Applicant
AND	THE QUEEN Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person R K Thomson for Respondent
Judgment:	12 June 2019

JUDGMENT OF THE COURT

A An extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is dismissed.
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REASONS

The applicant was convicted after a jury trial on:
(a)One count of wounding with intent to injure. This was an alternative to the original charge of wounding with intent to cause grievous bodily harm; and
(b)One count of injuring with intent to injure. This was an alternative to the original charge of injuring with intent to cause grievous bodily harm.
The applicant appealed against conviction and sentence to the Court of Appeal. That Court dismissed the appeal.[1] The applicant seeks leave to appeal to this Court. The application is made out of time but the respondent raises no issue with this and we grant the necessary extension of time.
[1]Grace v R [2018] NZCA 254 (French, Ellis and Woolford JJ). The appeal against sentence was not pursued in the Court of Appeal: at [3].
The applicant’s appeal in the Court of Appeal related to the way the alternative (included) charges were added to the charge sheet during the trial and the taking of verdicts on the alternative included charges when the jury had not reached verdicts on the original charges. The applicant seeks leave to pursue again in this Court the arguments rejected by the Court of Appeal in relation to the first of these issues. He also seeks leave to pursue a number of additional grounds that were not pursued in the Court of Appeal.
We deal first with the point relating to the alternative counts. The circumstances are set out in detail in the Court of Appeal’s judgment and we will not repeat that account.[2] In the Court of Appeal, the submissions of the applicant (then represented by counsel) were to the effect that it was not open to the trial Judge to add new charges to the charge sheet after the commencement of the trial. The applicant has placed before us a copy of those submissions and adopts them in support of his application for leave.
[2]At [9]–[23].
The Court of Appeal found that the “additional” charges were, in fact, included charges and the amendment of the charge list to refer to them was permitted under s 143 of the Criminal Procedure Act 2011.[3] We see no appearance of a miscarriage in the way the Court of Appeal determined this point.
[3]At [24]–[26].
The Court of Appeal went on to consider two further points.
The first was the fact that the applicant had been asked to plead to the included charges after the charge sheet had been amended. This was unnecessary and therefore an irregularity, but the Court of Appeal…

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 Grace v The Queen

Details

AGLC: Grace v The Queen [2019] NZSC 56
Case: [2019] NZSC 56
Decision Date: 12 June 2019

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application by Robert John Solomon Grace for leave to appeal against his conviction and sentence. Grace was convicted of wounding with intent to injure and injuring with intent to injure, with the jury returning verdicts on these alternative charges even though they had not reached verdicts on the original charges. Grace appealed to the Court of Appeal, which dismissed the appeal. He now sought leave to appeal to the Supreme Court, arguing that the trial judge should not have added the alternative charges after the trial had commenced and that the verdicts on the alternative charges were irregular. The Court of Appeal found that the charges were included charges and not added after the trial had begun, and that the irregularity did not result in a miscarriage of justice. The Supreme Court found no error in the Court of Appeal's reasoning and declined to grant leave on these issues. The Supreme Court also found that Grace's additional arguments, which were not raised in the Court of Appeal, did not warrant leave to appeal.

The legal issues before the Supreme Court were whether the trial judge should have added the alternative charges after the trial had commenced and whether the verdicts on the alternative charges were irregular. The Court of Appeal had rejected Grace's arguments on these issues, finding that the charges were included charges and that the irregularity did not result in a miscarriage of justice. The Supreme Court found no error in the Court of Appeal's reasoning and declined to grant leave on these issues. The Supreme Court also found that Grace's additional arguments, which were not raised in the Court of Appeal, did not warrant leave to appeal. The Court held that it will grant leave on grounds not raised in the Court of Appeal only in exceptional circumstances, and that none of Grace's additional arguments met this standard.

The Supreme Court granted an extension of time for Grace to apply for leave to appeal, as the respondent did not object to this. However, the Court dismissed the application for leave to appeal. The Court found that the Court of Appeal had correctly determined that the alternative charges were included charges and that the irregularity in taking verdicts on the alternative charges did not result in a miscarriage of justice. The Court also found that Grace's additional arguments, which were not raised in the Court of Appeal, did not warrant leave to appeal. The Court held that it will grant leave on grounds not raised in the Court of Appeal only in exceptional circumstances, and that none of Grace's additional arguments met this standard. Therefore, the application for leave to appeal was dismissed.

The final orders of the Court were to grant an extension of time for Grace to apply for leave to appeal and to dismiss the application for leave to appeal. The Court found no error in the Court of Appeal's reasoning on the issues that Grace sought to raise on appeal, and that his additional arguments did not warrant leave to appeal. The Court held that it will grant leave on grounds not raised in the Court of Appeal only in exceptional circumstances, and that none of Grace's additional arguments met this standard. Therefore, the application for leave to appeal was dismissed. The Supreme Court did not make any further orders in relation to Grace's conviction and sentence.

Orders