Paterson v The Queen - [2014] NZCA 235

IN THE COURT OF APPEAL OF NEW ZEALAND

CA425/2013
[2014] NZCA 235

BETWEEN	EDWARD PAUL PATERSON Appellant
AND	THE QUEEN Respondent

Hearing:	20 May 2014
Court:	White, Ronald Young and Simon France JJ
Counsel:	A J McKenzie for Appellant P D Marshall for Respondent
Judgment:	11 June 2014 at 2.00 pm

JUDGMENT OF THE COURT

AApplication for an extension of time granted.
BThe appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

The appellant, Mr Paterson, was convicted in the Christchurch District Court on three charges: assault, threatening to kill and wounding with intent to cause grievous bodily harm. He was sentenced by Judge Neave to five years’ imprisonment.[1]
[1]R v Paterson DC Christchurch CRI-2012-009-3823, 31 May 2013.
Mr Paterson appeals against his conviction and sentence on the third charge. The conviction appeal is on the ground that Judge Neave at the trial erred in his approach to “transferred malice” and failed to direct the jury on the issue of “(in)voluntariness”. The sentence appeal is on the ground that five years’ imprisonment is manifestly excessive.
The appeal was filed two days late. There being no objection, we extend time.

Background

The three charges arose out of incidents in a bar during which Mr Paterson headbutted one of the bar staff, a Mr Fey, and threatened to kill him with a butterfly knife. Then, in the course of a struggle between Mr Paterson and Mr Fey, another bartender, a Mr Davey, who had come to Mr Fey’s assistance, was stabbed in the abdomen.
Mr Paterson pleaded guilty to assaulting and threatening to kill Mr Fey, but defended the third charge, under s 188(1) of the Crimes Act 1961, that, with intent to cause grievous bodily harm to Mr Fey, he wounded Mr Davey.
Mr Paterson’s defence at trial had two elements:
(a)He only intended to scare Mr Fey, not to stab him.
(b)When Mr Davey intervened, Mr Paterson released his pressure on the knife and turned around to “assess the threat”. At that point, he believed Mr Fey pushed the knife into Mr Davey so that even if he had initially intended to stab Mr Fey, Mr Davey’s intervention meant that he no longer had that intention when Mr Davey was stabbed.
The trial Judge framed the key issue for the jury as being, “what was in Mr Paterson’s mind at the time Mr Davey was stabbed”. If the jury was satisfied beyond reasonable doubt that at this time he was trying to stab Mr Fey, he would be guilty. If, however, Mr Paterson was not then intending to stab Mr Fey – either because his intention to stab Mr Fey had been broken by Mr Davey’s intervention or he never intended to stab Mr Fey – he would not be guilty of the offence alleged.
The Judge provided the jury with an “Issues Table” which read:
Has the Crown proven beyond reasonable doubt:
1. That Mr Davey was wounded (i.e. received…

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 Paterson v The Queen

Details

AGLC: Paterson v The Queen [2014] NZCA 235
Case: [2014] NZCA 235
Decision Date: 11 June 2014 at 2.00 pm

CaseChat Overview and Summary

The case of Paterson v The Queen involved an appeal by the appellant, Mr Edward Paul Paterson, against his conviction and sentence on a charge of wounding with intent to cause grievous bodily harm under s 188(1) of the Crimes Act 1961. The appellant was convicted in the Christchurch District Court and sentenced to five years’ imprisonment. The appeal centred on two main issues: firstly, whether the trial Judge erred in his approach to "transferred malice" and failed to direct the jury on the issue of "(in)voluntariness"; and secondly, whether the sentence of five years’ imprisonment was manifestly excessive.

Regarding the conviction appeal, the Court found that the trial Judge had correctly directed the jury on the essential elements of the offence, including the requirement of voluntariness. The Judge had explained that if the stabbing was a pure accident or if Mr Davey walked onto the knife or it was pushed into him by Mr Fey, when Mr Paterson was not at that time trying to stab Mr Fey, Mr Paterson would not be guilty. These directions ensured that the jury understood that Mr Paterson should not be found guilty if they accepted that there was a reasonable possibility that the stabbing was involuntary. The Court concluded that the trial Judge did not err in his approach to "transferred malice" or fail to direct the jury on the issue of voluntariness.

As for the sentence appeal, the Court agreed with the Crown that the seriousness of the injury to Mr Davey was not overstated by the Judge, and the use of a butterfly knife as a weapon justified the starting point of six years’ imprisonment. The Court did not accept that the appellant was entitled to any credit for remorse, as he had pleaded not guilty to the charge involving Mr Davey. Therefore, the Court was not persuaded that the sentence imposed by the Judge was manifestly excessive.

In conclusion, the appeal against conviction and sentence was dismissed by the Court of Appeal of New Zealand. The appellant's conviction for wounding with intent to cause grievous bodily harm and the sentence of five years’ imprisonment were upheld.

Orders