McGlaughlin v The Queen - [2014] NZCA 547

IN THE COURT OF APPEAL OF NEW ZEALAND

CA150/2014
[2014] NZCA 547

BETWEEN	PHILLIP RAURU MCGLAUGHLIN Appellant
AND	THE QUEEN Respondent

Hearing:	22 October 2014
Court:	White, Simon France and Asher JJ
Counsel:	N M Dutch for Appellant J E Mildenhall for Respondent
Judgment:	13 November 2014 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

The appellant, Phillip Rauru McGlaughlin, was found guilty after a second jury trial at the Tauranga District Court on one count of injuring with intent to injure and one count of injuring with intent to cause grievous bodily harm.[1] These counts arose from two separate incidents. He was sentenced to a total sentence of three years and nine months’ imprisonment, being composed of cumulative sentences of one year’s imprisonment on the first count and two years and nine months’ imprisonment on the second.[2]
[1]In the first trial, the jury was unable to reach a verdict in relation to the second incident. A verdict of guilty was entered on the first incident, but an appeal was allowed and a new trial ordered: McGlaughlin v R [2013] NZCA 601.
[2]R v McGlaughlin DC Tauranga CRI-2012-070-3549, 17 March 2014.
In relation to the first incident, which arose at a bar on the evening of 26 June 2012, it was the Crown’s case that the complainant, Ms A, was drunk and grieving the death of her grandchild. She took offence at some of Mr McGlaughlin’s words and actions and punched him. In response Mr McGlaughlin punched Ms A in the body and head causing her to fall to the ground. While she was on the ground, he repeatedly kicked her. Bar patrons pulled him away but he managed to break free from them as the victim continued to act aggressively. He approached her again and punched her with closed fists until he was again restrained. Mr McGlaughlin admitted that he was involved in an incident with the complainant but stated that he never had any intention to injure her, and disputed the extent of her injuries, and the extent of the assault.
In relation to the second incident, the second victim, Ms B, had been staying at Mr McGlaughlin’s house. The Crown alleged that on 11 July 2012 she was asleep in bed with Mr McGlaughlin’s son, X, when Mr McGlaughlin came into the bedroom unannounced, pulled her out of bed by her hair and took her out into the hallway where he repeatedly punched and kicked her head and upper body. In the course of the assault the victim lost control of her bladder. The photographs of the second victim’s face show numerous lumped bruises on the forehead above the eyes, consistent with a savage beating focussed on the head. The catalyst for the attack, it was suggested, was Mr McGlaughlin’s anger at the second victim and his son some days earlier having…

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 McGlaughlin v The Queen

Details

AGLC: McGlaughlin v The Queen [2014] NZCA 547
Case: [2014] NZCA 547
Decision Date: 13 November 2014 at 2.30 pm

CaseChat Overview and Summary

Phillip Rauru McGlaughlin was found guilty by a jury in the Tauranga District Court of injuring with intent to injure in relation to an incident at a bar on 26 June 2012, and injuring with intent to cause grievous bodily harm in relation to an incident on 11 July 2012 at Mr McGlaughlin’s house. He appealed against both his conviction and his sentence. Mr McGlaughlin’s counsel submitted that prosecutorial misconduct, judicial error and the admission of an impermissible piece of evidence resulted in a miscarriage of justice. Counsel also submitted that the sentence was manifestly excessive and wrong in principle. The Court of Appeal rejected all of these arguments and dismissed both appeals. In relation to the appeal against conviction, the Court found that while the prosecutor had made a number of remarks which amounted to prosecutorial error, they did not prejudice the jury. In relation to the appeal against sentence, the Court found that the sentence was within the range of available penalties and was not manifestly excessive.

Orders