Old v The Queen - [2015] NZCA 252

IN THE COURT OF APPEAL OF NEW ZEALAND

CA739/2014
[2015] NZCA 252

BETWEEN	SHANE JAMES OLD Appellant
AND	THE QUEEN Respondent

Hearing:	10 June 2015
Court:	Wild, Venning and Williams JJ
Counsel:	R A Barnsdale for Appellant M G Wilkinson for Respondent
Judgment:	17 June 2015 at 11 am

JUDGMENT OF THE COURT

The appeal, both against conviction and sentence, is dismissed.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

Following a trial in the Tauranga District Court in August 2014, the jury found Mr Old guilty on one charge of causing grievous bodily harm with intent to cause grievous bodily harm and one charge of assaulting a police officer with intent to obstruct him in the execution of his duty.
Mr Old appeals against the convictions subsequently entered by Judge Rollo on the basis:
(a)Hearsay: Pre-trial statements by the complainant were wrongly admitted.
(b)Identification: The complainant’s evidence identifying Mr Old as his assailant should have been excluded because the requirements of s 45 of the Evidence Act 2006 were not complied with. Further, the Judge failed to give the jury the warning mandated by s 126 of the Evidence Act.

Both these grounds challenge the conviction only on the grievous bodily harm charge.

An appeal by Mr Old against the sentence of eight and a half years imprisonment with a minimum period of four years imposed on Mr Old by Judge Rollo on 12 November 2014 was not pursued.[1] Accordingly we will formally dismiss the appeal against sentence.

The facts

[1]R v Old DC Tauranga CRI-2014-019-934, 12 November 2014.

On the evening of 6 February 2014 Anthony Bourke and Allen Cooper were drinking and watching television in the home in Whangamata they had been sharing for about six months. They had been doing this for some hours and had each drunk about four or five stubbies of beer. They ran out of cigarettes.
At about 10 or 11 pm Mr Cooper left by car and drove into town to see if he could borrow some cigarettes from his friend Verrall Mayor. He and Mr Mayor had been friends for some 25 years. Mr Cooper found Mr Mayor in his bed, “horribly beaten”. Mr Cooper returned home about 15 minutes later bringing Mr Mayor with him. Mr Mayor was in a bad state. He was covered in dry blood and his head was very swollen. He had obviously been seriously injured. An ambulance was called and took Mr Mayor to the local medical centre. He was subsequently airlifted to Waikato Hospital.
At some point during these events Mr Mayor told Mr Cooper “it was Shane Old”. But when Mr Bourke asked him who had done it, Mr Mayor said “I can’t remember anything”. Constable Richards spoke to Mr Mayor in the ambulance outside the medical centre. Mr Mayor told Constable Richards he had been beaten up by Shane Old who had been living at his address in Achilles Rd. Mr Mayor added “I…

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 Old v The Queen

Details

AGLC: Old v The Queen [2015] NZCA 252
Case: [2015] NZCA 252
Decision Date: 17 June 2015 at 11 am

CaseChat Overview and Summary

Shane James Old appeals against his conviction for causing grievous bodily harm with intent to cause grievous bodily harm and assaulting a police officer with intent to obstruct him in the execution of his duty. The appeal against his sentence was not pursued and is dismissed. The appellant contends the pre-trial statements by the complainant, Verrall Mayor, were wrongly admitted as they were hearsay and the appellant was deprived of his right to an effective defence. The appellant further contends that the complainant's identification of him as the assailant should have been excluded as the police did not follow the requirements of s 45 of the Evidence Act 2006 and the Judge failed to give the jury the warning mandated by s 126 of the Evidence Act 2006. The Court found that the complainant was available as a witness at the trial and was able to be cross-examined. The statements were not hearsay and the Judge was right not to give a s 126 warning as the jury had everything they needed to assess the reliability of the complainant's evidence. The Court also found that the Judge's summing up did sufficiently warn and alert the jury to the need for vigilance when assessing the complainant's evidence. The appeal against conviction is dismissed. The appeal against sentence, which was not pursued, is also dismissed.

Orders