Murray v R

[2013] NZCA 177

IN THE COURT OF APPEAL OF NEW ZEALAND

CA743/2012
[2013] NZCA 177

BETWEEN  KIT JOHN MURRAY
Appellant

AND  THE QUEEN
Respondent

Hearing:         15 May 2013

Court:             Randerson, Rodney Hansen and Lang JJ

Counsel:         A G Speed
B D Tantrum and J M Pridgeon for Respondent

Judgment:      23 May 2013 at 3:00pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

1. The appellant Mr Murray was convicted after trial before a High Court jury on one count of manslaughter.[1]  The victim, Mr William Dawson, was punched by the appellant outside an Auckland bar and died in consequence. 

   [1]      R v Murray CRI-2011-004-18901, 27 August 2012. 

2. The presiding Judge at the appellant’s trial, Keane J, later sentenced Mr Murray to five years imprisonment.[2] 

   [2]      R v Murray [2012] NZHC 2626.

3. Mr Murray appeals against his sentence on the ground that it was manifestly excessive.  A central issue on the appeal relates to the Judge’s assessment of the degree of force involved in the punch which killed Mr Dawson. 

Background facts

1. The incident occurred in the early hours of the morning in the Viaduct Harbour area in Auckland.  The appellant was one of a group of four men.  It appears Mr Dawson walked into the group and collided with one member of it.  Some of the group, but not the appellant himself, assaulted Mr Dawson but the altercation was stopped after a doorman at a local bar intervened.  Mr Dawson began to break away from those accompanying the appellant but was still very agitated and continued his verbal exchange with them.  The appellant went up to Mr Dawson and pushed him away.  Mr Dawson continued to break away but maintained his verbal abuse of the appellant’s companions.

2. The Judge described what happened next:

   [6]       Outside the entrance to Danny Doolan's Bar, Mr Dawson reached a point some 10 metres away from the entrance to the Spy Bar where those with you remained and that is where he stopped.  He remained standing, but continued to upbraid those with you.  They responded but remained where they were.  Despite that, the Crown case at trial was, you suddenly punched Mr Dawson with considerable force with your right hand to the left side of his face.  He fell straight backwards, striking the back of his head with a loud impact on the pavement.  The Crown case was that in all likelihood you had rendered him immediately unconscious with your punch. 

3. Mr Dawson lay, clearly unconscious, on the pavement, bleeding profusely from his nose and mouth.  Others came to Mr Dawson’s assistance but the appellant did not attempt to do so and left immediately with his associates by taxi. 

4. At trial, the appellant denied punching Mr Dawson.  He accepted he had pushed his right forearm into Mr Dawson’s face but claimed he had done so in self defence.  Mr Dawson was a much bigger man than he and, as a result of head injuries the appellant had…