Magee v Police

[2024] NZHC 1819

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-013

[2024] NZHC 1819

ASHLEY MAGEE

v

NEW ZEALAND POLICE

Hearing:	27 June 2024
Counsel:	M W Anderson and K J Paterson for Appellant A M Barham for Respondent
Judgment:	5 July 2024

JUDGMENT (REASONS) OF GRAU J

[Conviction appeal]

[1]    Mr Magee was charged with assaulting his partner with intent to injure her. He was found guilty following a Judge-alone trial  in the District Court at Levin on     21 September 2023. But the Judge found Mr Magee guilty of a different charge, of injuring with intent to injure. The Judge subsequently sentenced Mr Magee to five months’ community detention and six months’ supervision.

[2]Mr Magee appeals his conviction but not his sentence.

[3]    At the appeal hearing, I allowed the appeal, quashed Mr Magee’s conviction, and made no order for a re-trial. These are my reasons.

MAGEE v NEW ZEALAND POLICE [2024] NZHC 1819 [5 July 2024]

Background to the charge

[4]    On 23 March 2023, the complainant fled from an address where she had been living with Mr Magee for a number of years as his partner. She had a swollen lip, a bleeding nose, and bruising to the side of her face. She drove to a neighbour’s address and told the neighbour that Mr Magee had hit her. Police were called and arrived to find her holding a blood-soaked tea towel to her face.

[5]    Mr Magee was spoken to by Police and admitted arguing with the complainant and said she smashed a pot plant. Mr Magee was charged with assault with intent to injure under s 193 of the Crimes Act 1961.1

[6]    At Mr Magee’s Judge-alone trial, the Judge heard from the complainant, two Police officers, and Mr Magee.2 In his evidence Mr Magee admitted to an argument but said the complainant came at him and he put his hands up. If he caused the complainant’s injuries, it was accidental because he was protecting himself. He denied that he had attacked the complainant.

Decision under appeal

[7]    In a reserved decision dated 9 October 2023, the Judge began by summarising the allegations and Mr Magee’s defence. He then recorded that Mr Magee was charged with “injuring the complainant with intent to cause her injury”.3

[8]    His Honour reminded himself of the burden and standard of proof. He set out the elements of the offence; that he must be sure that Mr Magee injured the complainant and intended to  do  so.  He  directed  himself  that  he  must  be  sure Mr Magee’s actions were not justifiable by self-defence or otherwise. He noted that there was no obligation for Mr Magee to give evidence, and that it was for the prosecution to disprove self-defence beyond reasonable doubt.4

1      Maximum penalty three years’ imprisonment.

2      The Notes of Evidence incorrectly record that Judge Rowe was the trial Judge. Judge Krebs was the trial Judge.

3      New Zealand Police v Ashley Magee [2023] NZDC 20437 At [3].

4 At [4].

[9]    After traversing the complainant’s evidence (in the form of a victim video statement), photographs that the Judge determined were injuries to her face consistent with her description of the incident, and notes recorded by attending ambulance officers, the Judge turned to the cross-examination of the complainant, noting there were inconsistencies between her victim video statement and an affidavit she had sworn the previous month in Family Court proceedings. The Judge considered, however, that the inconsistency was explainable and he said nothing turned on it.5

[10]   The Judge then turned to Mr Magee’s evidence, again reminding himself that Mr Magee had not assumed any obligation to prove anything. Mr Magee’s account was that the complainant had been confrontational and there was an argument. After she threw a pot plant on the floor he followed her through the house telling her to go and not to return until she had calmed down. When he reached a position in the hallway, she suddenly turned on him and approached him. Mr Magee used the word “charging”. He put his hands up with his wrists crossed to protect himself. He denied punching or assaulting the complainant in any way. If there was contact it is possible that her bleeding nose, cut lip and bruised face were caused as a result of her charging into his hands. There was also a suggestion the complainant must have been trying to headbutt him, but that was not put to the complainant.6 Mr Magee had also given evidence of a visit to a doctor the following day with a sore wrist that, on examination, was found to be a fracture in his right hand which he had reported as a defensive injury. The complainant had been cross-examined about her suggestion that Mr Magee had hit the wall at some point, but she was not asked to explain the broken bone in his right hand.7

[11]   The Judge then turned to consider self-defence. The Judge decided that the defence of self-defence failed “at the first hurdle” because Mr Magee did not accept that he deliberately assaulted the complainant, but rather, contended his actions were purely to protect himself. The Judge said if that was the case, Mr Magee would be

5      At [12]-[21].

6      At [22]-[32].

7      At [25]-[26].

innocent of “the charge of assault”8. That is correct. Self-defence was not available because accidental force is not covered by s 48 of the Crimes Act.9

[12]   Next, the Judge considered and rejected Mr Magee’s evidence. He did not believe Mr Magee’s claim he was charged at by the complainant. He also commented that it had not been put to the complainant that she headbutted Mr Magee, although she had vehemently denied she had been the aggressor which was suggested to her.10

[13]   The Judge also considered medical evidence of the fracture to Mr Magee’s hand, but said there was no indication whether that injury would require a direct strike or could have been the result of a fist striking a wall or some other hard surface such as a person’s head.11 However, he considered the injuries to the complainant were inconsistent with her face having struck Mr Magee’s arms as he raised them to protect his face, given they were in different parts—her nose, her teeth and lips, and to the side of her head. That was instead consistent with her description of events. He rejected Mr Magee’s account that the injuries to the complainant occurred by accident and put Mr Magee’s evidence in that regard to one side.12

[14]   Next, the Judge stated that he was convinced by the complainant’s evidence to the point that he was sure Mr Magee deliberately injured the complainant—being satisfied that the events occurred as she had described. He said he was satisfied that she was set upon by Mr Magee, who held her against the wall and punched her in the face and head with both hands causing the bleeding to her nose, the cut to her bottom lip, pain to her teeth, and pain and bruising to the side of her head. He was satisfied she was telling the truth because her evidence was internally consistent, she was unshaken under cross-examination, her description was consistent with the injuries seen in the photographs taken shortly after, the Police officer’s description of what he observed, and her behaviour following the incident.13

8      At [35]–[39].

9      Fairburn v R [2010] NZCA 44 at [46], reaffirmed by Rawle v R [2019] NZCA 249 at [25].

10     At [40]-[42].

11 At [43].

12 At [44].

13     At [45]–[49].

[15]   His Honour also said the complainant impressed him as a witness trying hard to give an accurate account of events actually experienced, and did not appear to exaggerate events or in any way make matters worse for Mr Magee. For example, she told the neighbour that Mr Magee did not usually behave violently, and would never hurt his daughter. When it was suggested otherwise, she denied that Mr Magee had pushed her down the steps.14

[16]   The Judge found that the charge was proved, Mr Magee was guilty, and the Judge said he entered a conviction against him.

[17]   I observe here that, according to Mr Magee’s criminal record, the conviction that has been entered against him is one of assault with intent to injure, not injuring with intent to injure, the charge the Judge said he was deciding.

Approach on appeal

[18]   An appeal against conviction is brought pursuant to s 232 of the Criminal Procedure Act 2011. Under that section, in the case of a Judge-alone trial, a first appeal court must allow an appeal where it is satisfied the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred; or, in any case, a miscarriage of justice has occurred for any reason.15

[19]   A miscarriage of justice is any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity.16

Discussion

[20]There are two significant errors in this case:

[21]   First, the Judge has delivered a decision finding Mr Magee guilty of injuring with intent to injure17—a charge that is different (and more serious) than the charge

14 At [50].

15     Criminal Procedure Act 2011, s 232(2)(b) and (c).

16     Section 232(4).

17     Crimes Act 1961, s 189(1); maximum penalty five years’ imprisonment.

Mr Magee faced, which was a charge of assault with intent to injure.18 I observe that the Judge later sentenced Mr Magee to five months’ community detention and six months’ supervision, which also suggests he was (still) under the impression that the charge was the more serious charge of injuring, rather than assault with intent to injure.19 Enquires were made of the Police prosecutor who conducted the trial. He had since left the Police but did not recall requesting any amendment to the charge, or the Judge making any amendment. He was said to be “pretty sure” the trial proceeded on the basis of assault with intent to injure.

[22]   Second, the Judge has found Mr Magee guilty (on the wrong charge) without finding beyond reasonable doubt that Mr Magee intended to injure the complainant. Although it is possible that the Judge’s finding that Mr Magee “did …deliberately injure the complainant”20 was meant to convey that Mr Magee intended to injure the complainant, it is more apt to describe a finding that the injury was deliberately, rather than accidentally inflicted. It is also consistent with what he had earlier said—that the Crown had to prove the complainant’s injuries were deliberately inflicted. It is not consistent with the direction he gave himself that he must be sure the defendant intended to injure the complainant.

[23]   I observe here that even if the Judge had determined the correct charge of assault with intent to injure, this same error would be present. Of course, it would have been open to him to infer that Mr Magee, by intentionally punching the complainant’s head, must have intended to cause her bodily harm. But he did not. The respondent suggested I could infer that the Judge had inferred an intent to injure. I declined that suggestion. As the Supreme Court has said, a reasoned judgment is essential to a fair trial.21

18 Section 193; maximum penalty three years’ imprisonment.

19 No sentencing notes were available. The Provision of Advice to Courts report recorded the charge as assault with intent to injure and recommended supervision and reparation. A starting point on that charge would have been in the region of nine months’ imprisonment. Mr Magee is 65 without any convictions apart from a minor and very historic driving offence and had already completed a Family Violence programme. Thus a sentence of five months’ community detention and six months’ supervision would appear excessive.

20 At [45].

21 Sena v Police [2019] 1 NZLR 575 at [36].

[24]   Section 232(c) is concerned with whether something material has gone wrong with the trial beyond the sufficiency of the evidence. The concept of miscarriage involves a two-step process:

(a)whether there was an error, irregularity or occurrence in or in relation to or affecting the trial; and

(b)whether that error must have created a real risk the outcome of the trial was affected, or that it resulted in an unfair trial or a trial that was a nullity.

[25]   As above, I have identified two significant errors—a decision on a charge that was different (and more serious) to the charge faced by Mr Magee, and a failure to determine one of the elements of that charge (which would also have been a failure to determine the common second element of the correct charge).

[26]   I consider that these errors render Mr Magee’s trial unfair. They are of sufficient seriousness to warrant setting aside the conviction without further enquiry into the potential effect of the errors on the trial outcome. Mr Magee has been found guilty of a charge he did not face and without a finding of proof beyond reasonable doubt on all of the elements of that charge. Although the formal record of conviction is on a charge of assault with intent to injure, there remains no finding of an intention to injure. In addition, it appears on the face of it that Mr Magee has been sentenced on the basis of a more serious charge that he was never charged with.

[27]   It is also possible that this is a case where a fundamental procedural error has occurred, making the trial a nullity.22 I have not been able to find a case directly on point, but I note that a conviction entered to an incorrect charge has been found to be a nullity.

[28]   In Kyrke-Smith v Ministry of Transport, the appellant was charged with “failing to accompany” but the charge was amended at the start of the hearing to “refusing to

22     See generally Yu v New Zealand Customs Service [2015] NZHC 539 at [32], citing Condon v R

[2006] NZSC 62 at [77] and [78].

accompany.” The Judge’s decision appeared to have overlooked the amendment because his reasons for judgment made it clear he had convicted for “failing”, not for “refusing”. On appeal, the Judge rejected a submission that s 204 of the Summary Proceedings Act 1957 (the predecessor to s 379 of the Criminal Procedure Act) would apply, being of the view that the elements of the two charges were different. Nor did the Judge consider it appropriate to substitute the charge on appeal.23

[29]   In this case, Mr Magee has been charged and (formally) convicted on the same charge, but the Judge has actually found him guilty of a different charge. One of the elements of the two charges is different (although the Judge’s finding that Mr Magee injured the complainant by punching her, would necessarily include a finding that he assaulted her). But the other element common to both charges was never determined. I consider it likely, therefore, that the trial was a nullity, but I do not need to reach a concluded view, given my finding of an unfair trial.

[30]   Finally, I record my reasons for not ordering a re-trial. The primary reason is that Mr Magee has already served (without incident) at least half of his sentence of community detention, which as I have said, appears to have been an excessive sentence on a charge of assault with intent to injure. The accompanying sentence of supervision has also proceeded without incident, but without any need for further programmes or intervention when Mr Magee had already completed a Family Violence Programme ordered by the Family Court, as a requirement of the protection order imposed on him to protect his former partner. I also take into account the inevitable delay to a re-trial and the effect on the complainant of having to give evidence again. Finally, even if Mr Magee was convicted at a re-trial on the less serious charge of assault with intent to injure, his age, lack of previous criminal history, the time he has already spent subject to bail conditions followed by conditions of community detention, mean that any further penalty is likely to be minimal.

23     Kyrke-Smith v Ministry of Transport HC Wellington AP 233/89, 6 November 1989.

Result

[31]   For the reasons above, I allowed the appeal, quashed the conviction and made no order for a re-trial.

Grau J

Solicitors:

Crown Solicitor, Palmerston North, for Respondent cc: M W Anderson, Lower Hutt for Appellant