Owen v The Queen - [2011] NZCA 348

IN THE COURT OF APPEAL OF NEW ZEALAND

CA44/2011
[2011] NZCA 348

BETWEEN DAVID PAUL OWEN
Appellant

AND THE QUEEN
Respondent

Hearing: 19 July 2011

Court: Stevens, Potter and Ronald Young JJ

Counsel: C J Tennet for Appellant
R J Collins for Respondent

Judgment: 29 July 2011 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Potter J)

Introduction

The appellant David Paul Owen was charged together with Lennox Stones that they intentionally injured Jamie Hughes on 4 October 2009 at Dunedin. Following trial by jury in the District Court at Dunedin before Judge Kellar, they were convicted of that charge. A verdict on an alternative charge of injuring in circumstances such that if death had been caused they would have been guilty of manslaughter was not required.
The appellant now appeals his conviction.

Grounds of appeal

Seven grounds of appeal were identified in the written submissions of Mr Tennet, counsel for the appellant. Two were abandoned in the course of oral submissions. They were that the verdict was unreasonable and not supported by the evidence and that the Judge failed to direct on lies giving rise to a miscarriage of justice. A further somewhat novel ground, which focussed on the presence in the indictment of the alternative charge, was that the prosecution overcharged. Mr Tennet did not press this ground but asked the Court to consider it in the event of a retrial.
The remaining grounds of appeal were that there were substantial misdirections by the trial Judge amounting to a miscarriage of justice in respect of the following:
(1)       parties;
(2)       self defence;
(3)       intention;
(4)       inferences.
Mr Tennet approached his oral submissions on the basis that the strongest grounds of appeal related to the claimed misdirections in relation to parties and self defence.

Factual background

The facts were in a narrow compass. There was a brief physical altercation in which the appellant and Mr Stones were involved at about 1.30 a.m. on 4 October 2009 in Princes Street, Dunedin. Mr Stones and a female friend were having a heated discussion in the entranceway to the flat of a Mr Duncan Robertson. Mr Robertson wanted to gain access to his flat and they were blocking the way. There was some sort of physical confrontation between Mr Robertson and Mr Stones. Mr Hughes intervened and grabbed Mr Stones. The appellant, who was a friend of Mr Stones, then intervened. Punches were thrown. There was disputed evidence as to who threw punches at Mr Hughes and where they struck him. The evidence of the prosecution witnesses (Mr Hughes and Mr Robertson) was that there were multiple punches to the back of Mr Hughes’ head, and Mr Hughes also said around his right ear and to the side of his head. The appellant said he hit Mr Hughes in the face which damaged his hand and caused him quite a bit of pain. Mr Stones said he did not recall…

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 Owen v The Queen

Details

AGLC: Owen v The Queen [2011] NZCA 348
Case: [2011] NZCA 348
Decision Date: 29 July 2011

CaseChat Overview and Summary

The appeal concerns the conviction of Mr Owen, one of the appellants, for assault occasioning actual bodily harm, affray, and riot. The case was heard in the High Court of Australia, which heard the appeal from the decision of the Queensland Court of Appeal. The key legal issues were whether the trial judge failed to properly marshal the evidence and whether the judge misdirected the jury on the elements of the charges, specifically concerning the intent to injure and the assessment of the reasonableness of force used in self-defence.

The court examined whether the trial judge's summary of the evidence was adequate and whether the judge properly directed the jury on the essential elements of the charges. The appellant argued that the judge did not adequately address the element of intent to injure and failed to consider whether the restraint of Mr Stones by Mr Hughes amounted to false imprisonment. The court found that the judge's summary of the evidence was succinct and that the defence case was fairly presented. The court also determined that any direction on the issue of false imprisonment would have been inappropriate as it would have distracted the jury from the core issues of the appellant's perception of the circumstances and the reasonableness of his response.

The High Court held that the trial judge's summation of the evidence was appropriate and that the judge adequately directed the jury on the intent to injure and the reasonableness of the force used. The court rejected the appellant's arguments, finding that the judge's directions to the jury were sufficient. The appeal was dismissed, and the conviction of Mr Owen was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Judge’s failure to marshal evidence[11]Mr Tennet submitted an additional memorandum after the hearing and drew to the Court’s attention the judgment of this Court in R v Kingi CA122/05, 10 August 2005. We have considered the judgment but it does not assist in this case. The Judge summarised the facts quite briefly. This was a short trial occupying two days before the Judge summed up to the jury. He explained to the jury he would provide an outline of some of the evidence in relation to the elements of the charges against Mr Owen and Mr Stones but did not propose to go over all the evidence as covered by counsel in their closing addresses. Having summarised the evidence he concluded:[12]Overall, the defence is that the Crown has not proved that Mr Owen and/or Mr Stones were not acting in defence of themselves or each other but also that the force they used was reasonable in the circumstances that they believed them to be. Hence, the defence is that the Crown has not satisfied you beyond reasonable doubt that the force used was not reasonable in the circumstances.[12] At [34]. He then asked the jury to retire to consider their verdicts. The evidence was succinctly summarised by the Judge and the defence case was fairly put. There is nothing in this point. False imprisonment: The restraint of Mr Stones by Mr Hughes was part of the factual matrix for the jury to consider. In summarising the facts the Judge said to the jury:[13]We know also that Mr Owen sees Mr Hughes restraining his friend Mr Stones, and that Mr Owen comes to Mr Stones’ aid.[13] At [20]. It was for the jury to assess what Mr Owen perceived the circumstances to be when he saw his friend being restrained by Mr Hughes and then to assess whether in those circumstances he acted in defence of Mr Stones and whether the force he used was reasonable. Whether or not Mr Hughes’ restraint of Mr Stones amounted in a legal sense to “false imprisonment” was irrelevant and a direction on this aspect would not have been appropriate. It would have moved the jury’s focus away from the essential issues, namely the circumstances as Mr Owen perceived them to be and whether his response to those circumstances was reasonable. The circumstances as Mr Owen perceived them to be were graphically put to the jury in closing by defence counsel with this question:His friend is being restrained with his head against the concrete, was he supposed to just stand there? That was the context in which it was suggested the jury should assess Mr Owen’s perception of the circumstances. The issue of false imprisonment did not arise. Therefore, all aspects of this ground of appeal must fail. The appellant contends that the Judge “... did not deal with intention either adequately or at all”. In summing up the Judge directed the jury:[14]So if you are sure that Mr Owen and/or Mr Stones injured Mr Hughes, then you ask yourself, “Are you sure that they or either of them did so with intent to injure Mr Hughes?” And then if you’re unsure about that, as the issue table shows, so if you find you’re unsure about that, then find Mr Owen and/or Mr Stones not guilty.[14] At [21].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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