McGregor v The Queen - [2019] NZHC 1069

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2019-442-3

[2019] NZHC 1069

BETWEEN
DAVID GILES MCGREGOR

Appellant

AND

THE QUEEN

Respondent

Hearing: 15 May 2019

Counsel:

A J Heward for Appellant

J W Cameron for Respondent

Judgment:

15 May 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] On 20 June 2018, the appellant, David McGregor, facing one charge of breaching a protection order,1 applied for the charge to be dismissed under s 147 of the Criminal Procedure Act 2011. He did so on the basis that no properly instructed jury could convict and there had been a failure to disclose relevant evidence.
Judge Zohrab at the Nelson District Court dismissed that application.2

[2] A Judge-alone trial on 4 December 2018, concluded with Judge Zohrab finding the charge proven.3

1      Domestic Violence Act 1995, ss 19(1)(d) and 49(3); maximum penalty three years’ imprisonment.
2      New Zealand Police v McGregor [2018] NZDC 13467.
3      R v McGregor [2019] NZDC 27067.

MCGREGOR v R [2019] NZHC 1069 [15 May 2019]

[3] The same day, Mr McGregor made a further s 147 application on the grounds that the offending was trivial and there had been a failure to disclose relevant evidence.
This application was dismissed.4

[4] On 18 February 2019, Mr McGregor applied for a discharge without conviction under s 106 of the Sentencing Act 2002. This application was declined, the Judge convicting and then discharging Mr McGregor.5

[5] Mr McGregor appeals his conviction and the decisions to dismiss the two s 147 applications on the following grounds:

(a)that no jury, on the evidence, could have found him guilty; and

(b)that the Judge erred in dismissing the s 147 applications.

Factual background

[6] Mr McGregor and the complainant had been domestic partners. She had a protection order against him.

[7] On the night of 8 December 2017, the complainant was sitting outside at a bar with friends when she made eye-contact with Mr McGregor. This was a random meeting and there was no intimidatory behaviour between the two of them. However, after making eye-contact, Mr McGregor went inside, ordered a drink, and came back outside, sitting at a table facing the complainant. Feeling uncomfortable, she left shortly afterwards.

[8] The complainant and her friends went to another bar and got a table. She was starting to feel more relaxed when Mr McGregor walked in and sat at a table nearby. After about a minute, she left. There was no physical or verbal interaction between them.

4 R v McGregor [2018] NZDC 26994.
5 R v McGregor [2019] NZDC 2930.

District Court decisions

First s 147 decision

[9] The Judge noted that the test for discharge on a s 147 application is whether a jury properly directed could find the charge proven.6 He said that, “in these types of hearing, context is everything,” and that, while he did not know the background circumstances leading to the granting of the protection order, the complainant had said…

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.

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Details

Case: [2019] NZHC 1069
Decision Date: 15 May 2019

CaseChat Overview and Summary

The appeal in this case was brought by David Giles McGregor against his conviction for breaching a protection order, which was imposed due to domestic violence. The appeal focused on the dismissal of two applications to discharge the charge under s 147 of the Criminal Procedure Act 2011, which states that a charge must be dismissed if there is a failure to disclose evidence or if no properly instructed jury could convict. The appeal was heard by Churchman J. The primary issues were whether the Judge erred in finding that no miscarriage of justice had occurred and whether the evidence was sufficient to establish that McGregor’s actions amounted to psychological abuse.

The court found that the Judge did not err in his assessment of the evidence. The CCTV footage, which was no longer available, would not have altered the outcome of the trial as both parties' presence at the bars was accepted. The court also held that the Judge was entitled to consider the toxicity of the relationship between the parties, based on the complainant's evidence, which the Judge found credible. Furthermore, the court ruled that the evidence given by the complainant about a statement made during Family Court proceedings was not hearsay and did not result in a miscarriage of justice. Finally, the court found that the Judge was correct in concluding that McGregor's actions amounted to psychological abuse, given the overall context of the case and the complainant's description of their relationship as toxic.

The appeal was dismissed, and the conviction stood.

Orders