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Ogden v R

Ogden v R

Case [2016] NZCA 214 20 May 2016

Jurisdiction

Miscarriage of Justice

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA609/2015
[2016] NZCA 214

BETWEEN	MICHAEL BRIAN OGDEN Appellant
AND	THE QUEEN Respondent

Hearing:	14 April 2016
Court:	French, Asher and Williams JJ
Counsel:	C J Nicholls for Appellant J M O'Sullivan for Respondent
Judgment:	20 May 2016 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

The appellant, Mr Ogden, was charged with three counts of male assaults female against a single complainant, his ex-partner. He was tried in a judge-alone trial before Judge Tompkins in the Wellington District Court. He was convicted on all three counts on 2 September 2015.[1] On 2 October 2015 Judge Tompkins sentenced the appellant to 18 months’ imprisonment.[2] The appellant appeals both conviction and sentence.

Facts

[1]R v Ogden DC Wellington CRI-2014-096-3978, 2 September 2015.

[2]R v Ogden [2015] NZDC 19875.

The appellant and the complainant lived together in the complainant’s flat in Upper Hutt between June and September 2014. The complainant’s young daughter also lived with them at various points during this period.
The three assaults allegedly occurred in August and September of 2014.
The first charge related to an incident that is alleged to have occurred between 25 and 31 August 2014. The appellant and complainant argued in the lounge of the flat. The appellant punched the complainant in the face at least once. She had visible injuries and did not leave the flat for a period afterwards because of concern about her appearance.
The second charge related to an alleged incident on 9 September 2014. The pair were at the TAB and the complainant gave the appellant money from her bank account to gamble with but capped his expenditure at $50. The appellant lost that money and the complainant refused to give him more. She left and returned home, but the appellant remained. As she did not have a key, she waited outside the flat. When the appellant arrived later he was angry both for the lost money and for being abandoned at the TAB. The appellant kicked the complainant in the ribs while she sat waiting for him. She had to lie down once inside the house in order to ease the pain. As she lay down inside, the appellant then stomped on the back of her head.
The third charge related to events two days later on 11 September 2014. The Crown alleged that the complainant had accompanied the appellant to a counselling session. He met with the counsellor alone and the complainant waited outside. They caught the bus home. They had an argument, verbal to begin with, and then physical. The appellant eventually punched the complainant in the mouth with a closed fist, splitting her lip.

Grounds of appeal

In relation to the conviction appeal, the appellant advanced two grounds:
(a)The Judge, in his decision, had relied upon a formal written statement that was on the court…

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 Ogden v R

Details

AGLC: Ogden v R [2016] NZCA 214
Case: [2016] NZCA 214
Decision Date: 20 May 2016 at 12.30 pm

CaseChat Overview and Summary

Michael Brian Ogden was convicted by the Wellington District Court of three counts of male assaults female against his ex-partner. The conviction and sentence were appealed by the appellant, leading to the case being heard by the Court of Appeal of New Zealand on 14 April 2016. The appeal was dismissed by French, Asher, and Williams JJ on 20 May 2016.

The court considered two grounds of appeal against conviction. The first was that the trial judge relied on a formal statement from a witness that had not been admitted in evidence, which created an error or irregularity that had resulted in an unfair trial such as to amount to a miscarriage of justice. The second was that the case was a “his word against her word” case and the complainant’s evidence was not supported by other evidence such that no proper basis was available upon which the trial judge could prefer the complainant’s evidence over the appellant’s. The court rejected both grounds of appeal against conviction.

The court then considered two grounds of appeal against sentence. The first was that the appellant was not interviewed by a probation officer for the purposes of a pre-sentence report. The second was that the end sentence was manifestly excessive having regard to the fact that it was added to a sentence the appellant was already serving in relation to separate offending that occurred around the same time as the offending at issue in this case. The court rejected both grounds of appeal against sentence.

The appeal against conviction and sentence was dismissed.

Orders