MacKay v The Queen

[2017] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

CA259/2016
[2017] NZCA 337

BETWEEN	LANCE BRUCE MACKAY Appellant
AND	THE QUEEN Respondent

Hearing:	24 July 2017
Court:	French, Simon France and Toogood JJ
Counsel:	R A B Barnsdale for Appellant I R Murray for Respondent
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

1. 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.

2. 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.

3. Mr MacKay now appeals his convictions and his sentence.

Background

1. 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.

2. 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.

3. At trial, Mr MacKay gave evidence.  He admitted the initial punch, but denied continuing the attack.

Appeal against conviction

1. 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 more likely they thought the couple had separated.  There was evidence that the relationship was a fraught one and there had been separations in the past.

2. The second ground of appeal relates to the cross-examination of the complainant and certain questions that were disallowed by the Judge.  In particular, the Judge disallowed questioning about an allegation the complainant and the female friend had colluded to commit perjury in an unrelated Family Court proceeding between the complainant and a third person.

3. On appeal it was contended this line of questioning should have been allowed because the evidence of the female friend who claimed to have witnessed the assaults in the car was critical.  However, defence counsel (not Mr Barnsdale) had no evidential basis for putting the question and in our view the Judge was entitled to prevent it from being put.  It was of course legitimate to raise the possibility of collusion on the basis of the close friendship of the two women.  That was done and was before the jury.

4. We note too that on appeal it is still the case there is no evidence to support the allegation about the Family Court proceeding.

5. Other questions that were disallowed at trial related to the complainant’s personal life — an unsuccessful police search of the complainant’s property for firearms, the character of the man with whom she had had the affair, and her possible relapse into drug use.  It was argued this evidence was relevant to the issue of Mr MacKay’s intent and therefore, by preventing defence counsel from exploring these issues, the Judge unduly hampered the defence.

6. We disagree.  We do not accept there is any logical connection between this evidence and the necessary intent.  The evidence was not relevant and the Judge was correct to prevent the questions being asked.

7. Neither ground of appeal has any merit.[3]  There has been no miscarriage of justice and the appeal against conviction is accordingly dismissed.

Appeal against sentence

[3]Two other grounds of appeal relating to the prosecutor’s opening address and the Judge’s summing-up were not pursued at the hearing.

1. The sole ground of appeal against sentence is that the Judge was wrong to have refused to discount the sentence on account of provocation.  Mr Barnsdale submitted a reduction was warranted in accordance with s 9(2)(c) of the Sentencing Act 2002[4] because the genesis of the assault was the victim’s unexpected disclosure of infidelity at a time when Mr MacKay was recovering from the effects of surgery.

   [4]Sentencing Act 2002, s 9(2)(c) provides “the conduct of the victim” is a mitigating factor to be taken into account by a court when applicable.

2. However, this Court has held that only in exceptional cases will infidelity on the part of the victim mitigate a violent retributive response by their partner, a possible example of an exceptional case being where the reaction is essentially instantaneous and a product of a complete loss of control.[5]  We agree with Judge Burnett that on the evidence this was clearly not such a case.  The attack was prolonged and was continued by Mr MacKay after he had the opportunity to calm down.

   [5]Wairau v R [2015] NZCA 215 at [39]; and Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [60] and [71].

3. We are satisfied a discount for provocation was not warranted.  The sentence was within range.  The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent