Jamie Dion Edward Gurran v The Queen - [2016] NZSC 1

IN THE SUPREME COURT OF NEW ZEALAND

SC 96/2015
[2016] NZSC 1

BETWEEN	JAMIE DION EDWARD GURRAN Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Glazebrook and O'Regan JJ
Counsel:	F E Guy-Kidd for Applicant J E L Carruthers for Respondent
Judgment:	1 February 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Gurran was convicted after a District Court jury trial of wounding with intent to cause grievous bodily harm.[1] The victim was a 75 year old man who was a friend of Mr Gurran.

Crown case

[1]The applicant was sentenced to seven and a half years’ imprisonment: R v Gurran DC Tauranga CRI-2012-070-208, 27 May 2013 (Judge Wolff).

The Crown case was that Mr Gurran over-reacted to what he perceived to be a homosexual advance (groping of the groin area) and severely beat the complainant. After the incident leading to the complainant’s injuries, Mr Gurran telephoned his mother, who went to the scene. She telephoned for an ambulance. Her evidence was that while she was doing this the applicant kicked the complainant on the floor and smacked him on the side of face three to five times. The ambulance officer arrived soon after. The complainant told him that he had been kicked (or punched, the ambulance officer could not remember which) by Mr Gurran.
The police arrived and arrested Mr Gurran. Some hours later they conducted an interview with him. In that interview he referred to the complainant trying to touch him and that he had punched him as a result (he conveyed this by punching his hand and saying “[b]oom, that’s what he got”). Later he said “I whacked him in the head, is that alright, that’s what I did”.
The complainant gave a statement to police approximately two weeks after the event. He described being kicked in the shins, stomach, ribs and around the head, and also being slapped on the face. He denied making a homosexual advance.

The trial

The complainant was unable to give evidence at trial. By the time of the trial he was suffering advanced dementia. As a result of a pre-trial ruling, the complainant’s written statement was admitted in evidence at the trial. The complainant died after the trial, apparently of natural causes.
At the trial the applicant gave evidence to the effect that the complainant fell in the toilet (between the toilet bowl and the wall) and got stuck there. The applicant said he rescued him and that the groping occurred while he was taking the complainant back into the living area. The defence case was, then, that the significant injuries suffered by the complainant occurred because of a fall in the toilet, not because of a beating and kicking by the applicant.
After the trial, but before sentencing, the applicant wrote to the sentencing Judge in terms which the Court of Appeal said could only sensibly be read as an admission to the offending.[2] He expressed regret for what happened and apologised.

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.

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Details

Case: [2016] NZSC 1
Decision Date: 1 February 2016

CaseChat Overview and Summary

Jamie Dion Edward Gurran has applied for leave to appeal against his conviction and sentence for wounding with intent to cause grievous bodily harm. The case was heard by the Supreme Court of New Zealand, with Elias CJ, Glazebrook, and O'Regan JJ presiding. The primary legal issues were whether a warning under section 122 of the Evidence Act 2006 should have been given regarding the complainant's evidence, whether fresh evidence should have been admitted, whether the trial counsel's failure to present evidence of the complainant's mental impairments constituted an error, and whether the summing up was deficient.

The court found that a warning under section 122 of the Evidence Act 2006 was not necessary as the warnings given by the trial judge were sufficient to alert the jury to the need for caution in accepting the complainant's evidence. The court also determined that the fresh evidence presented by the applicant was of very modest probative value and did not warrant admission. Regarding the complainant's mental impairments, the court found that the trial counsel's failure to present evidence of these impairments was not an error as it would not have affected the outcome. Finally, the court concluded that the summing up was not deficient and that any deficiencies in the jury materials would not have caused a miscarriage of justice given the overwhelming Crown case.

The Supreme Court of New Zealand dismissed the application for leave to appeal, stating that the criteria for granting leave to appeal were not met. The court found no risk of a miscarriage of justice and no matters of public importance arising from the case.

Orders