R v Gray - [2019] NZHC 941

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-009-007857

[2019] NZHC 941

THE QUEEN

v

HAYDEN ANTHONY GRAY

Hearing: 20, 21, 22, 25, 27 March 2019

Appearances:

D L Elsmore and R E Harcourt for the Crown

E C Bulger for the Defendant (at trial), J M Stringer for the defendant (at verdict)

Judgment:

1 May 2019

JUDGMENT OF OSBORNE J

(Reasons judgment)

[1] Hayden Anthony Gray faces two charges in relation to his conduct towards his infant son, Carter Hutton. Carter was born on 24 June 2017. He suffered injuries in the first month of his life. He subsequently died, at home under palliative care, on 25 July 2018.

[2] A further charge was dismissed under s 147 Criminal Procedure Act 2011. For convenience, the remaining two charges have been renumbered in this judgment to be Charges 1 and 2.

R v GRAY [2019] NZHC 941 [1 May 2019]

[3]The charges are:

Charge 1

Wounding with intent to cause grievous bodily harm, under s 188(1) Crimes Act 1961, alleging that Mr Gray, between 24 June and 24 July 2017 at Christchurch, with intent to cause grievous bodily harm to Carter Hutton, caused him grievous bodily harm.

Charge 2

Wounding with intent to cause grievous bodily harm, also under s 188(1), alleging that Mr Gray on 24 July 2017 at Christchurch with intent to cause grievous bodily harm to Carter Hutton, caused him grievous bodily harm.

Charges under s 188 Crimes Act

[4] To prove the charges under s 188(1) of the Crimes Act the Crown must prove that on each occasion or period:

(a)the defendant intended to cause grievous bodily harm to Carter; and

(b)he did cause grievous bodily harm.

[5]“Grievous bodily harm” means really serious hurt or harm.1

Proof of intention

[6] The Crown must prove specific intent. Proof of recklessness does not suffice. It is not enough that the Crown proves that the defendant had foreseen that such harm as occurred was a likely consequence of the defendant’s conduct or that the defendant had been reckless when such harm results.2

1 R v Waters [1979] 1 NZLR 375 (CA) at 379.
2 R v Belfon [1976] 1 WLR 741 (CA).

[7] On the other hand, the judge of fact may find that the defendant intended the harm to occur if the defendant knew that such harm was a certain or near-certain outcome of the conduct. Such a situation is illustrated by the facts which occurred in Albert v R, where the defendant discharged a shotgun at relatively close range at the lower part of the complainant’s body.3 The defendant accepted in cross-examination that deliberately shooting someone even in the legs would likely cause serious injury. The Court of Appeal found that the jury was entitled to infer that the defendant intended to cause serious injury, observing:4

…grievous bodily harm from such a shot seems inevitable and the intention of the shooter.

Proof of each charge

[8] In…

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 Gray

Details

AGLC: R v Gray [2019] NZHC 941
Case: [2019] NZHC 941
Decision Date: 1 May 2019

CaseChat Overview and Summary

Hayden Anthony Gray has been convicted of two charges of wounding with intent to cause grievous bodily harm to his infant son, Carter Hutton. The infant died in hospital under palliative care on 25 July 2017. The first charge relates to injuries that occurred between 24 June and 24 July 2017 and the second to an incident on 24 July 2017. The Court found that the Crown had proved the charges beyond reasonable doubt. The first charge was proved by evidence of historic fractures to Carter's ribs, and the second by evidence of injuries to Carter's brain and eyes. The Court found that the Crown's evidence of the fractures and injuries was compelling and had not been challenged. The Court was satisfied that the evidence established that Carter had suffered severe injuries from the application of severe acceleration/deceleration forces to his body, and that Mr Gray intended to cause really serious harm to Carter.

Orders