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R v Gardner

R v Gardner

Case [2009] NZCA 113 2 April 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA665/2007
[2009] NZCA 113
THE QUEEN
v
DARIN JOSEPH GARDNER
Hearing:3 March 2009

Court:Arnold, Ronald Young and Venning JJ
Counsel:B J Hart, G J King and H D M Lawry for Appellant

A F J Perkins and M D Downs for Crown

Judgment:2 April 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by Arnold J)

Table of Contents
PARA NO
Introduction  [1]
Factual background   [3]
Basis of appeal  [12]
DISCUSSION  [13]
Conduct of trial  [13]
             Our evaluation  [30]
      Discharge of juror  [34]
             Our evaluation  [39]
      Defence of another  [43]
             Our evaluation  [44]
      Provocation  [48]
             Section 169(6) – killing someone other than the provoker by accident     [50]
             Onus and standard of proof  [69]
             Threshold set too high  [71]
             Evaluative assessment  [78]
             Corrections  [81]
      Sentence appeal  [83]
Decision  [87]
Introduction
[1]       Following a jury trial before Hugh Williams J the appellant was convicted of two counts of murder, two counts of injuring with intent to cause grievous bodily harm and two counts of injuring with intent to injure. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 18 years six months on the murder counts. He was also sentenced to six years imprisonment on each of the injuring with intent to cause grievous bodily harm counts and to two years imprisonment on one of the injuring with intent to injure counts and 15 months imprisonment on the other. All sentences are to be served concurrently.
[2]       The appellant now appeals against his conviction and sentence on the murder counts.
Factual background
[3]       The appellant and two friends, Anton De Graaff and James Rixon, were drinking at a bar in the Highland Park complex at Howick, Auckland, in the late evening of Saturday 7 October and the early morning of Sunday 8 October 2006. The complex is adjacent to the Pakuranga Highway and there is a service station nearby.
[4]       About 1 am, Mr Rixon was ejected from the bar. The appellant and Mr De Graaff stayed on, drinking and dancing. They left the bar when it closed at 3 am. As there were several other bars in the complex closing at the same time, there were numerous groups of people in the area outside the complex.
[5]       The appellant and Mr De Graaff met up again with Mr Rixon and the three of them began to walk off, past a service station. They came across another group of three people, a woman and two men, who had been at another bar. Mr De Graaff began to shout abuse at these people and then attacked one of the men, rendering him unconscious. The appellant attacked the other man, causing him injury. In addition, the appellant was seen kicking the unconscious man. These attacks were the subject of the two injuring with intent to injure counts against the appellant.
[6]       Numerous other people in the vicinity saw the…

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 R v Gardner

Details

AGLC: R v Gardner [2009] NZCA 113
Case: [2009] NZCA 113
Decision Date: 2 April 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Darin Joseph Gardner, was convicted of two counts of murder, two counts of injuring with intent to cause grievous bodily harm and two counts of injuring with intent to injure. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 18 years six months on the murder counts. He was also sentenced to six years imprisonment on each of the injuring with intent to cause grievous bodily harm counts and to two years imprisonment on one of the injuring with intent to injure counts and 15 months imprisonment on the other. All sentences are to be served concurrently. The appellant now appeals against his conviction and sentence on the murder counts. The court rejected the appeal against conviction and sentence. The court found that the trial did not miscarry as a result of the layout of the courtroom or the discharge of one of the jurors. The court also found that the Judge did not make material errors in his summing up in relation to the partial defence of provocation or in imposing a MPI of 18 years six months.

Orders