Joseph v The Queen - [2013] NZCA 290

IN THE COURT OF APPEAL OF NEW ZEALAND

CA221/2012
[2013] NZCA 290

BETWEEN	MICHAEL ANZAC JOSEPH Appellant
AND	THE QUEEN Respondent

Hearing:	19 June 2013
Court:	Wild, Miller and MacKenzie JJ
Counsel:	A J S Snell and M J Phelps for Appellant S B Edwards for Respondent
Judgment:	9 July 2013 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

Mr Joseph (aka Fox) appeals both against conviction and sentence.
At trial in the District Court at Gisborne in February 2012 the jury found Mr Joseph guilty on one count of wounding with intent to cause grievous bodily harm (GBH) and a second count of injuring with intent to injure. He was acquitted on a further count of injuring with intent to injure.
Judge D M Wilson QC subsequently sentenced Mr Joseph to six and a half years imprisonment.[1]
[1]R v Joseph DC Gisborne CRI-2011-016-675, 28 March 2012.
Mr Joseph appeals against his two convictions on the ground that the Judge needed to – but did not – give the jury an identification warning, either in terms of s 126 of the Evidence Act 2006, or along the lines suggested by this Court in R v Turaki. [2] In the result, justice miscarried.
[2]R v Turaki [2009] NZCA 310 at [90].
The basis for Mr Joseph’s sentence appeal is that two things combined to produce a sentence that was manifestly excessive. The first was the Judge’s failure to reflect “excessive self-defence” in his sentencing starting point; the second too great an uplift for the injuring with intent to injure conviction.

Factual background

This case concerns two successive incidents of street violence in Gisborne in the early hours of 20 February 2011.

The Stanley Rd wounding

Mr Joseph was returning, with his partner Ms Campbell, from a reggae concert. While walking along Stanley Rd they became involved in an altercation. It involved another couple, Mr Grace and his partner Ms Mua. There was a suggestion a third man may also have been involved.
While fighting with the other man or men, Mr Grace sustained a number of wounds to his chest, abdomen, lower back and arm. Surgery was required for one of the wounds, stitches for all of them.
Mr Grace did not see the weapon used to inflict the wounds, indeed he did not immediately realise he had been wounded. The Crown alleged that Mr Joseph had smashed a glass bottle and used the neck of the bottle to inflict the wounds. When sentencing Mr Joseph the Judge said that he was not clear what had been used to inflict the wounds.
While the men were fighting, so also were Ms Campbell and Ms Mua.

The Childers Rd injuring

After Mr Grace had collapsed on the road bleeding, Mr Joseph and Ms Campbell left the scene. They went on down Stanley Rd and turned left into Childers Rd. They were pursued…

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 Joseph v The Queen

Details

AGLC: Joseph v The Queen [2013] NZCA 290
Case: [2013] NZCA 290
Decision Date: 9 July 2013 at 2.30 pm

CaseChat Overview and Summary

Joseph v The Queen is an appeal against conviction and sentence. The appellant, Joseph, was found guilty by a jury in the District Court of Gisborne of one count of wounding with intent to cause grievous bodily harm and a second count of injuring with intent to injure. He was acquitted on a further count of injuring with intent to injure. Joseph was sentenced to six and a half years imprisonment. The appellant challenges both his conviction and sentence. In relation to the conviction, Joseph argues that the trial judge failed to give an appropriate identification warning to the jury. The Court of Appeal found that the evidence given by the witnesses did not constitute visual identification evidence and therefore did not require a warning. The Court found no miscarriage of justice and dismissed the appeal against conviction. The Court also dismissed the appeal against sentence, finding that the sentence was not manifestly excessive.

Orders