Malone v The Queen - [2018] NZHC 1059

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000023 [2018] NZHC 1059

BETWEEN
MICHAEL JOHN MALONE

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 May 2018

Appearances:

J A T Ross for the Appellant R W Donnelly for the Crown

Judgment:

15 May 2018

JUDGMENT OF NATION J

Background

[1] The Police served on Mr Malone a trespass notice prohibiting him from going to the property of the complainant, a woman with whom he had earlier been in a relationship. The complainant also had the Police issue Mr Malone with a warning under the Harassment Act 1997.

[2] At around 2.00 am on 3 July 2016, Mr Malone assaulted a man who was in the company of the complainant at the Bunker Bar in Queenstown.

[3] Around 3.42 am on 3 July 2016, Mr Malone entered the Queenstown home of the complainant. Neither the complainant nor any of the other usual occupants of the address were there. Mr Malone put a tea towel in the oven, turned the oven to a high temperature with the oven fan on and left it there to burn. Before leaving the home, he picked up a bottle of whiskey but left it lying on the driveway.

MALONE v R [2018] NZHC 1059 [15 May 2018]

[4] Mr Malone was charged with assault, an offence under the Trespass Act 1980, burglary and attempted arson.

[5] At his hearing in the District Court, Mr Malone defended all charges. His defence on the assault charge was that he was acting in self-defence. He denied that he was the person who had gone to the complainant’s home in the early hours of the morning.

[6] Mr Malone was convicted on all four charges and sentenced for all the offending to four months’ community detention, 150 hours’ community work and nine months’ supervision with conditions.

[7] Mr Malone now appeals against his convictions for arson and burglary. He does not challenge the Judge’s finding that he was the person who entered the complainant’s home, left the tea towel to burn in the oven and took a bottle of whiskey and left it on the driveway. He argues, however, that the District Court Judge could not reasonably have found that the Police had proved the essential elements of the attempted arson and burglary charges. He appeals against the sentence but only if the convictions for both the attempted arson and burglary charges are overturned.

The District Court decision

[8] As to the charge of assault, the Judge found that Mr Malone had, without provocation or any need to defend himself, pushed his victim so that he fell to the ground and hit his head.

[9] There had been evidence that the complainant had been subject to intensive harassment before the incident, her car had been scratched, its tyres punctured and the petrol tank damaged, paint had been sprayed on the car and her house, taps had been turned on and left on,…

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 Malone v The Queen

Details

AGLC: Malone v The Queen [2018] NZHC 1059
Case: [2018] NZHC 1059
Decision Date: 15 May 2018

CaseChat Overview and Summary

The case of Malone v The Queen involved Michael John Malone, who appealed against his convictions for attempted arson and burglary, as well as his sentence. Malone had been previously involved in a relationship with a woman, who had obtained a trespass notice against him and a warning under the Harassment Act 1997. On 3 July 2016, Malone assaulted a man who was with the complainant at a bar, before entering the complainant's home and leaving a tea towel in the oven, which caught fire, and taking a bottle of whiskey which he left on the driveway. Malone was convicted on charges of assault, trespass, burglary and attempted arson, and sentenced to four months' community detention, 150 hours' community work, and nine months' supervision with conditions.

The appeal against conviction focused on whether the District Court Judge had erred in finding that the Police had proved beyond reasonable doubt the essential elements of the attempted arson and burglary charges. The appellant argued that the Judge could not have reasonably found that he intended to damage immovable property with the attempted arson, and that there was insufficient evidence to show that he intended to commit theft when he entered the building for the burglary charge. The respondent submitted that the evidence was sufficient for the Judge to find that the appellant had intended to damage immovable property and that he intended to commit an imprisonable offence when he entered the property.

The High Court found that the District Court Judge was entitled to infer that Malone had intended to damage the oven or the room it was in by leaving the tea towel to catch fire. The evidence showed that the tea towel was singed when removed from the oven and that there was smoke in the house and pouring out of the oven. The Court found that the appellant's actions on the night, including damaging the complainant's property, showed that he was intending to cause distress and harm in a general sense to the complainant. The fact that the bottle of whiskey was discarded on the driveway after leaving the building could have been consistent with the appellant changing his mind at that point. However, the evidence established that Malone had taken the bottle of alcohol from the complainant’s home in circumstances that showed he intended to deprive the owner of it permanently. The Court found that there was ample evidence on which it was established that Malone unlawfully entered the home with intent to damage property.

The appeal against sentence was dismissed as Malone had not succeeded on his appeal against either the burglary or attempted arson convictions. The Court found that the sentence imposed was appropriate given the nature of the offences and all the circumstances in which they occurred. Malone was to report to the Probation Service within 36 hours of receipt of this judgment.

Orders