R v MacDonald - [2009] NZCA 428

IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/2009
[2009] NZCA 428

THE QUEEN

DAMIAN HARLEY MACDONALD

Hearing:31 August 2009
Court:Glazebrook, Gendall and Asher JJ
Counsel:D L Stevens QC for Appellant

K J Beaton for Crown
Judgment:23 September 2009 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction  [1]
Background  [3]
The Judge’s directions  [12]
Submissions on behalf of Mr MacDonald  [20]
Crown submissions  [25]
Our assessment  [30]
Result  [36]

Introduction

Mr MacDonald was convicted on one count of murder following a jury trial before Miller J in the High Court at Nelson. He appeals against his conviction on the sole ground that the trial Judge failed to give a tripartite direction in relation to evidence given by him at trial.
The tripartite direction, as approved by the majority of this Court in R v McI [1998] 1 NZLR 696 at 708 (CA), is as follows:
[I]f you accept the accused’s evidence on the key issues, you should acquit; if you consider there is a reasonable possibility the accused’s evidence on the key issues might be true, you should acquit; if you reject the accused’s evidence on the key issues, you must not automatically conclude he is guilty, you must still examine all the evidence which you do accept and decide whether it establishes the accused’s guilt beyond reasonable doubt.

Background

The evidence at trial of the events leading to the death of the victim (Mr Winter) was somewhat complicated. We summarise only the essential elements.
Mr Winter lived in a flat on the top floor of a Nelson house with his partner and her two year old child. Mr MacDonald was, at the relevant time, living in a flat on the ground floor with a flatmate. Shortly after 11.00 pm on 18 March 2007, Mr Winter went downstairs to his car to retrieve a television set.
The Crown contended that, while Mr Winter was carrying the television back towards the house, Mr MacDonald struck him to the ground with a large piece of “half round” fencing post. Once Mr Winter was incapacitated on the ground, it was the Crown case that Mr MacDonald struck him at least once more over the head. The expert evidence as to blood splatter was that Mr Winter’s head was very close to ground level at the time of the second blow.
The blows caused complex skull fractures and the facial injuries Mr Winter suffered were described by the pathologist as being at the extreme end of such injuries. As a result of his injuries, Mr Winter’s airways were blocked by blood. The evidence was that he would have needed immediate expert medical intervention to have survived.
The Crown case was that, in striking Mr Winter with the post, Mr MacDonald knew who he was assaulting and did so deliberately. It was argued that Mr MacDonald was behaving aggressively and therefore not acting in self-defence and…

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 MacDonald

Details

AGLC: R v MacDonald [2009] NZCA 428
Case: [2009] NZCA 428
Decision Date: 23 September 2009

CaseChat Overview and Summary

The appellant, Damian Harley MacDonald, appealed against his conviction of murder by the High Court at Nelson. MacDonald was convicted following a jury trial, which included his testimony that he believed the deceased, Mr Winter, was an assailant. The appeal hinged on whether the trial judge failed to provide a tripartite direction to the jury regarding MacDonald's evidence. The tripartite direction, approved by the Court of Appeal of New Zealand in R v McI, instructs the jury to acquit if they accept the accused's evidence on key issues, consider acquitting if there is a reasonable possibility the accused's evidence might be true, and examine all evidence to decide if the accused's guilt is established beyond reasonable doubt if they reject the accused's evidence. MacDonald's counsel argued that the omission of the tripartite direction was a significant error, as it did not account for the possibility of rejecting MacDonald's account without accepting the Crown's case. In contrast, the Crown contended that the trial judge's directions adequately conveyed the standard of proof and the jury's consideration of the evidence. The Court of Appeal held that the absence of a tripartite direction did not lead to a miscarriage of justice, as the trial judge's directions were comprehensive and tied to the evidence presented. The Court found that a general tripartite direction would have been inappropriate and potentially confusing in this case, particularly regarding the defence of self-defence and the issue of intoxication. The appeal was dismissed, and MacDonald's conviction of murder was upheld.

Orders