Hearing:	9 July 2015
Court:	Cooper, Keane and Kós JJ
Counsel:	F E Guy Kidd and JAT Ross for Appellant JEL Carruthers for Respondent
Judgment:	4 August 2015 at 10.30 am

JUDGMENT OF THE COURT

ALeave to adduce further evidence is declined.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Kós J)

On the evening of Tuesday 3 January 2012 Mr Ian Robertson was seriously injured inside his Mt Maunganui flat. He had 10 broken ribs, a collapsed lung, bleeding in his chest cavity, a cut to the back of his head and wounds and bruising to his chest, back, arms and legs. The only other person present at the time was Mr Dion Gurran.
A jury in the Tauranga District Court convicted Mr Gurran of wounding Mr Robertson with intent to cause grievous bodily harm.[1] Judge Wolff sentenced him to seven and a half years’ imprisonment.[2] Mr Gurran now appeals both conviction and sentence.

Background

[1]It acquitted him on a second charge of assaulting his mother.

[2]R v Gurran DC Tauranga CRI-2012-070-208, 27 May 2013.

Mr Gurran was 40 and Mr Robertson, 75. Mr Gurran and Mr Robertson were friends, despite their very different ages. They would drink together at the Mt Maunganui RSA, and sometimes at Mr Robertson’s flat.
At about 7.30 pm on Tuesday 3 January 2012 Mr Gurran telephoned his mother. He asked her to come to Mr Robertson’s and help him. He said that Mr Robertson was hurt. When she arrived she found Mr Robertson lying hurt on his kitchen floor. In evidence, she stated that she asked him what had happened, “He kinda went — the young fella had punched him. Just went like that [indicating a boxing motion].” Mr Gurran said, “Don’t be silly. You, you just fell over you silly old bugger.” Mr Robertson replied, “You, you hit me.”
Mrs Gurran’s evidence was that as she rang for an ambulance, her son came around behind her, kicked Mr Robertson on the floor and “smacked him on the side of the face”. He did both actions perhaps three to five times. Her evidence as to the force used varied between “stomping” and “nudging”.[3]
[3]A physical exchange of some sort between Mr Gurran and his mother when she was attending to Mr Robertson gave rise to the charge of assault.
The ambulance officer arrived at about 8.15 pm. He found Mr Robertson injured, but coherent. In evidence he stated that Mr Robertson told him, pointing at Mr Gurran, “That bastard kicked [or punched] the shit out of me.” The officer was not quite sure whether the word used was “kicked” or “punched”.
At about 8.30 pm the police arrived. They arrested Mr Gurran for assaulting Mr Robertson. A little before 1.00 am they interviewed Mr Gurran. We will come back 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 Gurran v R

Details

AGLC: Gurran v R [2015] NZCA 347
Case: [2015] NZCA 347
Decision Date: 4 August 2015 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Dion Gurran appeals against his conviction and sentence for wounding with intent to cause grievous bodily harm to Ian Robertson. Gurran was sentenced to seven and a half years’ imprisonment. The appeal raises six issues: whether trial counsel erred in not ensuring evidence of the complainant’s mental impairment was before the jury, whether the Judge erred in failing to give the jury an adequate reliability warning regarding the complainant’s evidence, whether the cross-examination of the appellant and the prosecutor’s closing address infringed s 32 of the Evidence Act 2006, whether the Judge’s summing-up inadequately summarised the defence, whether any errors identified gave rise to a miscarriage of justice, and whether the sentence imposed was manifestly excessive. The appeal against conviction and sentence is dismissed. The Court finds that trial counsel was not in error in not ensuring evidence of Robertson’s mental impairment was before the jury, as Robertson’s account was consistent and the defence was weakened by Gurran’s inconsistent accounts. The Court also finds that the warnings given by the Judge in his summing-up were sufficient for the purposes of s 122 of the Evidence Act, and that the prosecutor’s cross-examination and closing address did not infringe s 32 of the Evidence Act. The Court finds that the Judge’s summing-up put the nature of the defence case adequately, and that the case against Gurran remained overwhelming. The Court finds that the sentence imposed was not manifestly excessive.

Orders