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

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…

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 MacKay v The Queen

Details

AGLC: MacKay v The Queen [2017] NZCA 337
Case: [2017] NZCA 337
Decision Date: 4 August 2017 at 4.00 pm

CaseChat Overview and Summary

The appeal by Lance Bruce MacKay against his convictions and sentence was dismissed by the Court of Appeal of New Zealand. MacKay had been convicted in the District Court of assault with intent to injure, injuring with intent to injure, and wounding with intent to injure, all against his then wife. MacKay's appeal against his convictions focused on two issues: the admission of evidence about his 14-month absence from home, which the defence argued was unfairly prejudicial, and the disallowance of cross-examination questions about a potential collusion between the complainant and a female friend to commit perjury in an unrelated Family Court proceeding. The Court found that the evidence about MacKay's absence was not unfairly prejudicial, as it was part of the relevant narrative and there was no reference to his incarceration. Furthermore, the disallowance of the cross-examination questions was justified as there was no evidential basis for the questions and no evidence to support the allegation of collusion. The appeal against sentence was based on the argument that the District Court judge was wrong to refuse a discount for provocation. The Court of Appeal agreed with the District Court that a discount for provocation was not warranted as the attack was prolonged and continued after MacKay had the opportunity to calm down.

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