Grace v The Queen - [2018] NZCA 254

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA699/2017
[2018] NZCA 254

BETWEEN	ROBERT JOHN SOLOMON GRACE Appellant
AND	THE QUEEN Respondent

Hearing:	21 May 2018 (further material received on 6 June 2018)
Court:	French, Ellis and Woolford JJ
Counsel:	L A Andersen for Appellant C A Brook for Respondent
Judgment:	16 July 2018 at 10.30 am

JUDGMENT OF THE COURT

A The application for an extension of time is granted.

B The appeal against sentence is dismissed.

C The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Ellis J)

Mr Grace was convicted at trial on charges of wounding with intent to injure and injuring with intent to injure.[1] Those two charges were put to the jury as alternatives to the original charges of wounding with intent to cause grievous bodily harm and injuring with intent to cause grievous bodily harm, respectively.[2] He now appeals his conviction on the ground that the two alternative charges were improperly added to the charge list during the course of the trial. He says the convictions are nullities.
[1]He was sentenced to three years and six months’ imprisonment: R v Grace [2017] NZDC 21509.
[2]Mr Grace also faced a charge of threatening to kill and a charge of aggravated burglary.
The appeal was filed out of time. Because the delay was short and has been explained, an extension of time was not opposed and we grant it accordingly.
Mr Grace’s sentence appeal was not pursued before us and is therefore dismissed.

Background

The offending

Mr Grace was friends with Ms Brownlie. On the night in question he, Ms Brownlie and the complainant, Mr Howley, had been drinking at Mr Grace’s house. Mr Grace became angry with Mr Howley for reasons to do with their respective relationships with Ms Brownlie. We do not need to venture into the details here. According to Mr Howley, Mr Grace hit him about four times about the head with a sharp weapon of some kind. One of the blows cut Mr Howley’s right index finger and one cut his forehead. Both cuts required medical attention.
Mr Howley then fled the house. He knocked over a wheelie bin full of bottles as he left. Later, he returned briefly to take Ms Brownlie back to her own house, which was a short distance away.
At about 5 am the next morning, Mr Grace went to Ms Brownlie’s house carrying a cricket bat. He banged on the front door but it was locked. Ms Brownlie and Mr Howley (who were in bed together) ignored him. Mr Grace climbed in an unlocked side window. He later said he had done this many times before, during his friendship with Ms Brownlie.
Mr Grace entered the bedroom where Ms Brownlie and Mr Howley were. He began hitting Mr Howley with the cricket bat. He directed the blows at Mr Howley’s head, re-opening the cut on his forehead. Eventually Mr Howley managed to get out…

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 [2018] NZCA 254
Case: [2018] NZCA 254
Decision Date: 16 July 2018 at 10.30 am

CaseChat Overview and Summary

Robert John Solomon Grace was convicted of wounding with intent to injure and injuring with intent to injure. The Court of Appeal of New Zealand heard his appeal against the conviction. The primary legal issues the court had to decide were whether the alternative charges were properly added during the trial and whether convicting Grace on the alternative charges while the original charges remained live resulted in a miscarriage of justice. The Court held that the alternative charges were properly included and that convicting Grace on the alternative charges did not result in a miscarriage of justice as the Crown decided not to pursue a retrial on the original charges. The appeal against the conviction was dismissed.

Orders