Leaf v The Queen - [2011] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

CA655/2010
[2011] NZCA 116

BETWEEN CHARLES MURRAY LEAF
Appellant

AND THE QUEEN
Respondent

Hearing: 24 March 2011

Court: Randerson, Simon France and Lang JJ

Counsel: Appellant in person
N P Chisnall for Respondent

Judgment: 29 March 2011 at 3 p.m.

JUDGMENT OF THE COURT

The application for an extension of time to appeal against conviction and sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

Mr Leaf appeals against his conviction after jury trial in the District Court on 1 October 2009 for assault with intent to injure. He was sentenced on 2 November 2009 by the presiding Judge, Judge Butler, to 150 hours community work. [1] He has served that sentence.
[1] R v Leaf DC Wellington CRI-2009-085-917, 2 November 2009.
Mr Leaf now appeals against conviction and sentence. The appeal against conviction is advanced on three principal grounds which we treat as a contention that the jury’s verdict was unreasonable. To use Mr Leaf’s words:
(a)        The prosecution did not prove beyond reasonable doubt that there was an intention to injure.
(b)       The prosecution did not disprove self-defence.
(c)        The prosecution did not prove to the jury that the evidence at trial was true.
(d)       The prosecution did not prove that the charge of intent to injure was just a single event under s 329(6) of the Crimes Act 1961.
The appeal was filed nearly a year out of time and the Crown opposes any extension of time. We examine the merits nevertheless.
The sentence appeal is advanced only on the footing that the sentence must be set aside if the conviction appeal succeeds.

Background facts

The prosecution arose from an altercation between Mr Leaf and a fellow employee (a Mr Sanderson) at their place of work. Some basic elements of the incident are not in dispute:
(a)        There was a verbal dispute between the two men.
(b)       Mr Sanderson was responsible for some provocation by using offensive language towards Mr Leaf.
(c)        Mr Leaf pushed Mr Sanderson back by placing his two hands on Mr Sanderson’s chest.
(d)       At a later point, Mr Leaf placed his left hand on Mr Sanderson’s neck with sufficient force to leave red marks on Mr Sanderson’s neck which were photographed.
(e)        During the struggle, Mr Sanderson’s finger went into Mr Leaf’s mouth and was bitten.
In other respects the evidence was disputed. The principal witnesses for the prosecution were Mr Sanderson and the manager, a Mr White. The gist of their evidence was that Mr Leaf became angry; pushed Mr Sanderson away causing him to nearly lose balance; Mr Leaf then grabbed Mr Sanderson about the neck; and finally pushed him on to a desk and did not let go until Mr Sanderson slumped to the floor. Mr Sanderson said he was finding it difficult to breathe and that his finger accidentally went into Mr Leaf’s mouth as he (Mr Sanderson) tried to push Mr Leaf away.
Mr Leaf…

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 Leaf v The Queen

Details

AGLC: Leaf v The Queen [2011] NZCA 116
Case: [2011] NZCA 116
Decision Date: 29 March 2011

CaseChat Overview and Summary

In Leaf v The Queen, Charles Murray Leaf appealed against his conviction and sentence for assault with intent to injure, which had been handed down by the District Court on 2 November 2009. The appeal was heard by the Court of Appeal of New Zealand on 24 March 2011, and the judgment was given by Randerson J on 29 March 2011. Leaf appealed on three principal grounds, arguing that the jury's verdict was unreasonable due to the prosecution failing to prove beyond reasonable doubt that there was an intention to injure, that self-defense was disproven, and that the evidence presented at trial was true. The Crown opposed any extension of time for the appeal, which had been filed nearly a year out of time. The appeal against the sentence was only advanced on the condition that the conviction appeal succeeded.

The central issue before the Court of Appeal was whether the jury's verdict was unreasonable given the evidence presented at trial. The Court held that the test to be applied under s 385(1)(a) of the Crimes Act was refined by the Supreme Court in Owen v R, which held that a verdict would be unreasonable if the evidence could not have reasonably satisfied the jury that the accused was guilty. The Court emphasised that an appellate court is performing a review function and does not substitute its own view of the evidence. In this case, the Court found that the evidence from the principal witnesses for the prosecution, Mr Sanderson and Mr White, could reasonably have satisfied the jury that Leaf was guilty. Therefore, Leaf's first three grounds of appeal were dismissed.

The Court also dismissed Leaf's submission in relation to s 329(6), as the prosecution did not rely on more than one action by Leaf as constituting the assault. The Court found that Leaf's submission on this point did not afford any valid appeal ground. The Court did not comment on any other issues raised by Leaf as they did not afford any basis to challenge the validity of the conviction.

In conclusion, the Court of Appeal declined Leaf's application for an extension of time to appeal against his conviction and sentence. The Court held that the delay was long, there was no adequate explanation for it, and the appeal could not succeed on the merits. Consequently, the conviction and sentence were upheld, and Leaf's appeal was dismissed.

Orders