Gurran v The Queen - [2015] NZCA 64

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/2013
[2015] NZCA 64

BETWEEN	DION EDWARD GURRAN Appellant
AND	THE QUEEN Respondent

Hearing:	18 February 2015
Court:	Miller, MacKenzie and Lang JJ
Counsel:	F E Guy Kidd and JAT Ross for Appellant JEL Carruthers for Respondent
Judgment:	11 March 2015 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to withdraw the notice of abandonment of Mr Gurran’s appeal is granted. Directions are made in paragraph [30] to timetable the hearing of his appeal.

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REASONS OF THE COURT

(Given by Miller J)

Mr Gurran moves to withdraw the notice by which he abandoned his appeal against conviction for wounding Ian Robertson with intent to cause grievous bodily harm and the sentence of seven years, six months imprisonment.

The facts

The conviction resulted from an incident which took place on 3 January 2012 at the home of Mr Robertson, a 75-year old man who had become a friend of Mr Gurran’s. For our purposes a brief narrative will suffice.
Mr Gurran and Mr Robertson had been drinking together. At about 8.00 pm Mr Gurran, who is now aged 44, phoned his mother, Delphine Gurran, and said that Mr Robertson was hurt. She found Mr Robertson lying on the kitchen floor with multiple injuries including ten broken ribs and a collapsed lung. There was a significant amount of blood in the kitchen and in the toilet.
Mrs Gurran deposed that her son slapped and kicked Mr Robertson in her presence and accused Mr Robertson of attacking him. She said he also attacked her; that was the subject of a separate charge, on which Mr Gurran was acquitted.
Mr Gurran himself told an ambulance officer that Mr Robertson had attacked him, and at interview several hours later, still intoxicated, he claimed that he had reacted with a punch when Mr Robertson made a sexual advance.
About 10 days later Mr Robertson made a statement to the police in which he said that Mr Gurran had attacked him out of the blue while they were drinking in the lounge.
Mr Gurran was denied bail pending trial. He spent the remand at Waikeria Prison.

The trial and sentencing

The trial began on 25 March 2013. The Crown witnesses included Mrs Gurran and the ambulance officer, Craig Hooper. Mr Gurran’s DVD interview was played. Police witnesses gave scene evidence, and an ESR witness gave evidence about bloodstains found at the scene. Mr Robertson did not give evidence. He was affected by dementia when the incident happened, and by the time of trial his condition had advanced to the point where he was unable to give evidence. His statement was admitted in evidence over the opposition of defence counsel. The jury were told that he was unwell, but not that he had been suffering from dementia at the time of the incident.
Mr Gurran gave evidence. His account was that Mr Robertson fell in the toilet, which must have accounted for the broken ribs. There…

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 The Queen

Details

AGLC: Gurran v The Queen [2015] NZCA 64
Case: [2015] NZCA 64
Decision Date: 11 March 2015 at 11.30 am

CaseChat Overview and Summary

Dion Edward Gurran appeals against his conviction and sentence for wounding Ian Robertson with intent to cause grievous bodily harm. The appeal was initially abandoned, but Gurran now seeks to withdraw the notice of abandonment. The Court of Appeal of New Zealand, comprising Miller, MacKenzie, and Lang JJ, granted the application for leave to withdraw the notice of abandonment and directed the timetable for hearing the appeal. The court recognised that setting aside a notice of abandonment is not without precedent and can be done in exceptional circumstances, taking into account the importance of finality in criminal cases, the circumstances in which the notice was given, and the necessity for the applicant to satisfy the court that the reasons for the application are of an exceptional nature.

The court considered the circumstances in which Gurran abandoned his appeal. Gurran's trial counsel believed the appeal had good prospects of success, but Gurran was unsure whether he wished to continue with the appeal. He was concerned about being returned to Waikeria Prison, where he had been assaulted while on remand. The court also considered Gurran's psychological condition, including a moderate traumatic brain injury and a personality disorder causing paranoia, low self-esteem, social anxiety, difficulty relating to others, and avoidance of group therapy. A consultant psychiatrist opined that Gurran's disordered personality was the cause of his decision to abandon the appeal, as it magnified his fear of leaving segregation and returning to the general prison population as a remand prisoner.

The court found that the circumstances of this case were sufficiently exceptional to justify leave for Gurran to withdraw the notice of abandonment. The court noted that some of the proposed grounds of appeal had prospects of success, such as the trial judge's failure to adequately sum up the defence case, warn the jury regarding reliance on hearsay evidence, and provide adequate directions on intoxication. The court directed that steps be taken to comply with the Court of Appeal (Criminal) Rules 2001, with time running from the date of delivery of this judgment.

The final orders of the court are as follows: (1) the application for leave to withdraw the notice of abandonment of Mr Gurran's appeal is granted; (2) directions are made in paragraph [30] to timetable the hearing of his appeal.

Orders