Mason v The Queen - [2010] NZCA 170

IN THE COURT OF APPEAL OF NEW ZEALAND
CA481/2009
[2010] NZCA 170
BETWEENJAMES LOUIS MASON

Appellant

ANDTHE QUEEN

Respondent

Hearing:23 March 2010

Court:William Young P, Hammond and Baragwanath JJ
Counsel:J L Mason in person

M E Ball for Respondent

Judgment:5 May 2010 at 4pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
[1]        James Louis Mason appeals against his conviction before Judge Crosbie and a jury on a count of assault on his four-year old son. The appeal is also against the sentence of nine months supervision and the direction that he undertake such treatment programme, counselling or intervention as might be recommended by the probation service, including for anger management. Mr Mason was acquitted on two other counts of assaulting the four-year old boy and his two-year old brother by lifting and thumping on the ground the bicycles on which each was sitting.
[2]        Shortly before Christmas 2007 Mr Mason was taking his three young children across the Bridge of Remembrance over the Avon River in Cashel Street, Christchurch. The two boys were riding bikes with trainer wheels and Mr Mason was pushing their one-year old sister in a pushchair. The younger boy lost control as he turned down a ramp leading down to a park and came off his bike, suffering a nasty injury to his head. Mr Mason picked him up and took him back up the ramp to the bridge. To teach him a lesson he picked his bike up and slammed it hard on the ground three or four times in the course of what he described as a lesson in pedalling and braking, accompanied by obscene language. He then saw the older boy poised to ride down the ramp. On his account, with the pram in his right hand he grabbed “a great hunk” of the older boy’s hair with his left and pulled him hard by it towards himself, swearing as he did.
[3]        Two eyewitnesses, a woman and her son, gave a different version, stating that they saw Mr Mason, who was shouting loudly, swearing at his sons and lifting the bikes and slamming them down, then yank the older boy’s ear and punch his face in, on or under his eye.
[4]        A Senior Constable of Police who was approaching said she heard Mr Mason speaking in an aggressive and angry tone to the children, bouncing the bike of the younger boy and yelling at him. She made a job sheet entry ten minutes later of her recollection of what Mr Mason said to her:
The wee fellow on the bike had gone down the ramp and hit his head on the rail and had fallen off his bike. The wee fellow knows he shouldn’t go away from me as it’s a busy part of the city but they’re used to it as we live in the city. I hit the big one in the face and that…

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 Mason v The Queen

Details

AGLC: Mason v The Queen [2010] NZCA 170
Case: [2010] NZCA 170
Decision Date: 5 May 2010

CaseChat Overview and Summary

The appeal in Mason v The Queen involves James Louis Mason, the appellant, who was convicted by a jury before Judge Crosbie of assaulting his four-year old son. The appeal was also against the sentence of nine months' supervision and a direction for treatment, counselling, or intervention recommended by the probation service, including for anger management. Mr Mason was acquitted on two other counts of assault on his four-year old son and his two-year old brother by lifting and thumping their bicycles on the ground. The court was required to decide several legal issues, including whether the count should have been divided into separate counts in relation to the two allegations, if all police officers involved in the case should have been summoned to give evidence, if the police exercised discretion under s 59(4) to warn Mr Mason and the ensuing prosecution was unjustifiable, if defence counsel’s submissions were cut short prematurely, if Mr Mason’s conduct was justifiable under ss 59 and 20 of the Crimes Act, and if a juror was not impartial. The court reasoned that the Judge’s direction to the jury did not cause any injustice as the jury would have understood the oral direction as requiring intentional application of force, and the written direction would have removed any doubt. The court found that other police officers need not have been called to attest to the facts as they were already established at trial. The court also held that the police exercised their discretion to not prosecute, and the prosecution was not unjustifiable. The court rejected the submission that defence counsel’s submissions were cut short prematurely and that Mr Mason’s conduct was justifiable under ss 59 and 20 of the Crimes Act. The court also dismissed the ground of objection that a juror was not impartial. The appeal against conviction and sentence was dismissed.

Orders