McDonald v R - [2007] NZSC 66

IN THE SUPREME COURT OF NEW ZEALAND

SC 36/2007
[2007] NZSC 66
PALMIRO MCDONALD
v
THE QUEEN
Court:Elias CJ, Blanchard and Tipping JJ
Counsel:C W J Stevenson for Applicant

F E Guy Kidd for Respondent

Judgment:21 August 2007

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
[1]     The applicant applies for leave to appeal to this court, his appeal against conviction for wounding with intent to injure having been dismissed by the Court of Appeal on 20 April 2007.[1] The applicant was tried on two charges before Judge Dawson and a jury at Palmerston North. He was found not guilty of assault with a weapon but found guilty of assault with intent to injure. Both charges related to incidents involving the same complainant, with whom the applicant was in a relationship.
[1] [2007] NZCA 142, O’Regan, Arnold and Ellen France JJ.
[2]     Two grounds are advanced in support of the application for leave to appeal further the conviction on the charge of wounding with intent to injure. First, it is said that the trial Judge was wrong to decline an application by the defence under s 339(1) of the Crimes Act 1961 to leave to the jury a charge of assault in addition to the charge of wounding with intent to injure, on the basis that such charge is included in the more serious charge. The second ground advanced is that the complainant and her father in their evidence referred to the applicant’s earlier conduct towards the complainant, which entailed assaults but which had not resulted in convictions. A further point concerns hearsay evidence given by the father. It is said that a mistrial should have been granted on the application of the defence. Notwithstanding the firm direction given by the Judge that they must ignore such references, the applicant contends that the prejudice in the inadmissible evidence occasioned a miscarriage of justice.
[3]     Both the points sought to be raised on further appeal were fully addressed in the judgment of the Court of Appeal, delivered by O’Regan J. The Court applied the principles summarised in R v Mokaraka.[2] It is not suggested on the present application that the principles there discussed about the application of s 339(1) are wrong. It is a matter for the trial Judge whether an included charge should be left to the jury. The mere fact that an included charge is available does not make that course appropriate.
[2] [2002] 1 NZLR 793 (CA).
[4]     The Crown case was that the applicant had kicked the complainant in the face while in a bedroom in her family home. The applicant, who did not give evidence at trial, had acknowledged in his statement, which was produced in evidence, that while in the lounge he had punched the complainant, in retaliation for her punching or kicking him. It was argued that the jury might have accepted the applicant’s version of a punch and that the distinct charge of assault or male assaults…

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 McDonald v R

Details

AGLC: McDonald v R [2007] NZSC 66
Case: [2007] NZSC 66
Decision Date: 21 August 2007

CaseChat Overview and Summary

Palmiro McDonald applied for leave to appeal against his conviction for wounding with intent to injure, following the dismissal of his appeal by the Court of Appeal on 20 April 2007. The applicant was tried on two charges relating to incidents involving the same complainant, with whom the applicant was in a relationship. He was found not guilty of assault with a weapon but found guilty of assault with intent to injure. Two grounds were advanced in support of the application for leave to appeal. Firstly, the applicant argued that the trial judge was wrong to decline an application by the defence to leave to the jury a charge of assault in addition to the charge of wounding with intent to injure. Secondly, the applicant argued that a mistrial should have been granted on the application of the defence due to the complainant and her father referring to the applicant’s earlier conduct towards the complainant, which entailed assaults but which had not resulted in convictions. The court dismissed the application for leave to appeal, finding that the trial judge did not exercise the power he had under s 339(1) of the Crimes Act 1961 incorrectly. The court also found that there was no basis upon which it could be concluded that a substantial miscarriage of justice may have occurred.

The court considered the first ground advanced by the applicant, which was that the trial judge was wrong to decline an application by the defence to leave to the jury a charge of assault in addition to the charge of wounding with intent to injure. The court found that the trial judge did not exercise the power he had under s 339(1) of the Crimes Act 1961 incorrectly. The court noted that it is a matter for the trial judge whether an included charge should be left to the jury, and that the mere fact that an included charge is available does not make that course appropriate. The court found that there was evidence of all such elements, and that the jury could have been in no doubt that it had to find all elements proved. The court concluded that there was no basis upon which the judge would have been obliged to leave the included offence to the jury.

The court also considered the second ground advanced by the applicant, which was that a mistrial should have been granted on the application of the defence due to the complainant and her father referring to the applicant’s earlier conduct towards the complainant, which entailed assaults but which had not resulted in convictions. The court found that the references to previous assaults emerged for the most part indirectly as the complainant explained her normal practice of taking up defensive positions when the applicant had previously “threatened”, “hit” and “manhandled” her. The court found that the references to previous assaults were general and did not provide details of the past abuse. The court also found that the firm direction given by the Judge in his summing-up overcame any potential prejudice. The court concluded that there was no risk of miscarriage of justice.

The court dismissed the application for leave to appeal, finding that neither ground advanced met the criteria for leave to appeal under s 13 of the Supreme Court Act 2003. The court found that the trial judge did not exercise the power he had under s 339(1) of the Crimes Act 1961 incorrectly, and that there was no basis upon which it could be concluded that a substantial miscarriage of justice may have occurred. The court found that the references to previous assaults were general and did not provide details of the past abuse, and that the firm direction given by the Judge in his summing-up overcame any potential prejudice.

Orders