| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA259/2016 [2017] NZCA 337 |
| BETWEEN | LANCE BRUCE MACKAY |
| AND | THE QUEEN |
| Hearing: | 24 July 2017 |
Court: | French, Simon France and Toogood JJ |
Counsel: | R A B Barnsdale for Appellant |
Judgment: | 4 August 2017 at 4.00 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr MacKay was convicted at trial in the District Court of one count of assault with intent to injure, one count of injuring with intent to injure, and one count of wounding with intent to injure. The complainant in relation to all charges was his then wife.[1]
[1]After the trial, Mr MacKay pleaded guilty and was convicted of a fourth charge — breach of a protection order — also relating to his wife.
The presiding judge, Judge Burnett, sentenced Mr MacKay to a term of imprisonment of three and a half years.[2]
[2]R v MacKay [2016] NZDC 10224.
Mr MacKay now appeals his convictions and his sentence.
Background
The Crown case was that while Mr MacKay was in prison his wife had an affair with another man. Shortly after his release, she told him about the affair while they were in a car. Also in the car was a female friend of the complainant whom the complainant had brought along for protection. Mr MacKay punched the complainant in the face. He then got out of the car because he had that same day undergone surgery on his nose and his nose was bleeding. After attending to his nose, he got back into the car and continued punching the complainant in the head. She suffered a number of injuries including a wound to her tongue caused by her biting it due to the force of the punches.
Later, after they had returned home, Mr MacKay renewed the attack. He grabbed the complainant by the throat and choked her until she eventually lost consciousness. When she regained consciousness, it was to find Mr MacKay kicking her on the ground. He was wearing work boots. Eventually the complainant escaped.
At trial, Mr MacKay gave evidence. He admitted the initial punch, but denied continuing the attack.
Appeal against conviction
The first ground of appeal against conviction relates to evidence that was given about Mr MacKay being away from home for 14 months. Counsel Mr Barnsdale submitted this evidence should have been excluded as unfairly prejudicial because the jury would have drawn the inference that Mr MacKay was in prison. We do not accept that submission. The fact he was away was part of the relevant narrative as was the length of the absence. In his evidence Mr MacKay himself referred to being away. There was no reference by anyone to his being in prison and nothing suggested or implied incarceration was the reason for his absence. If the jury did draw any inference, it is much…
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- AGLC
- MacKay v The Queen [2017] NZCA 337
- Case
- [2017] NZCA 337
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CaseChat Overview and Summary
The legal issues in this case involved the admissibility of certain evidence and the proper application of the Sentencing Act 2002. The Court of Appeal considered whether the evidence about MacKay's absence was unfairly prejudicial, whether the disallowance of certain cross-examination questions was justified, and whether a discount for provocation was appropriate under the circumstances. The Court found that the trial judge's decisions were correct and that there had been no miscarriage of justice. The Court of Appeal upheld the District Court's convictions and sentence, dismissing both the appeal against conviction and the appeal against sentence.
In summary, the Court of Appeal of New Zealand dismissed Lance Bruce MacKay's appeal against his convictions and sentence. The appeal against conviction was based on the admissibility of evidence about MacKay's 14-month absence from home and the disallowance of certain cross-examination questions. The Court found that the evidence and the disallowance of questions were properly admitted and excluded, respectively. The appeal against sentence was based on the argument that a discount for provocation was warranted, but the Court of Appeal found that a discount was not appropriate under the circumstances. The Court of Appeal upheld the District Court's convictions and sentence, dismissing both appeals.
Orders
Orders of the court
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Background
Background to the litigation
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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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