MacDonald v R - [2011] NZCA 446

IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/2011
[2011] NZCA 446

BETWEEN GILLIES TANGATAKINA MACDONALD
Appellant

AND THE QUEEN
Respondent

Hearing: 10 August 2011

Court: Harrison, Rodney Hansen and Andrews JJ

Counsel: B Webby for Appellant
R J Collins for Respondent

Judgment: 8 September 2011 at 12.30 pm

JUDGMENT OF THE COURT

A.The appeal against conviction is dismissed.
B.The appeal against sentence is allowed. The sentence of three years imprisonment is quashed. In its place Mr MacDonald is sentenced to one year nine months imprisonment, subject to the release condition that he attend for an assessment and further treatment with the departmental psychologist.

REASONS OF THE COURT
(Given by Rodney Hansen J)

Introduction

After trial before Judge Adeane and a jury in the Napier District Court, Mr MacDonald was found guilty on one count of wounding with intent to injure. He was convicted and sentenced to three years imprisonment.[1]
[1] R v MacDonald DC Napier CRI-2010-020-2885, 13 April 2011.
Mr MacDonald appeals against conviction and sentence. He contends that a miscarriage of justice occurred as a result of the way in which the trial Judge answered two questions asked by the jury in the course of deliberations. Mr MacDonald’s sentence is said to be manifestly excessive.

Factual background

The incident giving rise to the charge took place at a private house in Hastings on 20 July 2010. At about 1.30 pm Mr MacDonald, who lived about 50 metres away, went to the house to speak to one of the occupants who owed him money. There was a short discussion. The Crown case was that Mr MacDonald then went back to his home before returning to the address a short time later. The complainant was on the porch. He said in evidence that Mr MacDonald told him to leave. While he was bending over to pick up a carton of beer to take with him, he was struck several times on the back of the head by Mr MacDonald using a sock containing heavy objects. On the Crown case, they were the size and weight of billiard balls.
Mr MacDonald’s evidence was that he only went to the address once. He was carrying his walking stick. He said the complainant advanced on him in a threatening manner. He said he struck the complainant with his walking stick to protect himself.
The key issue at trial was self-defence. That could arise only if the jury accepted Mr MacDonald’s evidence. Plainly, self-defence was not available on the Crown case.

Conviction appeal

The jury retired to consider their verdict at 3.52 pm on 10 March 2011. Before retiring for the evening, they formulated four questions. A further question was asked the following morning. All five were answered at 9.37 am The jury retired to consider its verdict at 9.42 am and returned a unanimous verdict at 10.10 am
The two questions in issue were the second and fifth of those dealt with by the Judge. They read as follows:
2 Description of walking…

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 MacDonald v R

Details

AGLC: MacDonald v R [2011] NZCA 446
Case: [2011] NZCA 446
Decision Date: 8 September 2011

CaseChat Overview and Summary

The case of MacDonald v R involved an appeal against the conviction of Mr MacDonald. The dispute centred on whether the trial judge had erred in his handling of jury questions during the trial, specifically whether he should have provided additional facts to the jury regarding Mr MacDonald's age. The matter was heard by the Court of Appeal.

The legal issues before the court were whether the trial judge correctly exercised his discretion under s 128 of the Evidence Act 2006 in not disclosing Mr MacDonald’s age to the jury and whether his comments during the trial unfairly prejudiced the defence. The court had to determine if the judge's actions and comments constituted a miscarriage of justice that warranted a new trial.

The court found that while there was no reason why the judge should not have disclosed Mr MacDonald’s age to the jury, it did not find the omission to be unfair given that it did not prejudice the defence’s case on self-defence. The court also considered the judge's comments, which, though not strictly factual, did not undermine the defence’s argument on self-defence. The judge’s remarks were seen as helpful in refocusing the jury on the critical issues of the case. The court concluded that the judge's answers to the jury, taken as a whole, were accurate and balanced, and did not lead to a miscarriage of justice.

The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The information given by the Judge about Mr MacDonald’s age was an uncontroverted fact in terms of s 128 of the Evidence Act 2006 which provides:128 Notice of uncontroverted facts(1)A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.(2)A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter. As Mr Collins submitted, the fact of Mr MacDonald’s age was capable of accurate and ready determination by reference to sources whose accuracy could not reasonably be questioned. The Judge was able to refer to the information. In our view, there was no reason why the Judge should not have exercised his discretion to disclose that additional fact to the jury. It is drawing a long bow to say it was unfair to the defence for the jury to receive factual information which, at worst, might have corrected a misleading impression created by Mr MacDonald’s appearance and other aspects of the evidence. That said, it is regrettable that the Judge answered the question at all without first conferring with counsel. The invariable practice of trial Judges to invite comment from counsel on the way jury questions should be answered is more than a simple courtesy. Questions from the jury call for particular care as they focus on issues which self-evidently have assumed particular importance during the deliberative process. The input of counsel can promote accuracy and balance and provide a further layer of protection against judicial error. In this case, consultation with counsel may also have avoided the perception of unfairness arising from the Judge’s concluding comment. Answers to jury questions are best kept factual and to the point. Gratuitous remarks, at best, provide an unnecessary gloss. At worst, they risk qualifying or detracting from the essential message. In the context of the trial, we see no risk that the Judge’s remark could have led the jury astray. It conveyed a hint that the jury should resist any attempt by the defence to characterise Mr MacDonald as an old man. But, in our view, it would have done nothing to undermine the defence case that Mr MacDonald’s undisputed health and mobility problems made self-defence a credible explanation for his actions. We take the same view of the Judge’s response to the question about the walking stick. Again, Judge Adeane went beyond the factual to engage in comment that could be taken to convey a certain scepticism with the defence case. But what he said was not inaccurate. His answer redirected the jury to the nub of the case. The other questions he went on to answer required a reiteration of the factual and legal issues bearing on self-defence. There is no criticism of the way they were dealt with. The answers read as a whole leave us no cause for concern with the way in which the jury was directed on the key issues.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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