R v McDonald - [2007] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND
CA356/06
[2007] NZCA 142
THE QUEEN
v
PALMIRO MCDONALD
Hearing:15 March 2007

Court:O'Regan, Arnold and Ellen France JJ
Counsel:C W J Stevenson for Appellant

M F Laracy for Crown

Judgment:20 April 2007 at 12 noon

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1] The appellant was convicted in the District Court at Palmerston North of wounding with intent to injure. He was acquitted on a charge of assault with a weapon. He appeals his conviction to this Court.
Grounds of appeal
[2] The grounds of appeal raised by the appellant are:
(a)The trial Judge, Judge Dawson, erred in declining a defence application for an included charge of assault;
(b)There were a number of references in the evidence of the complainant and others to previous assaults or alleged assaults by the appellant on the complainant;
(c)A comment made in closing by Crown counsel impugned the character of defence counsel and prejudiced the defence.

[3]       The appellant submits that either individually or cumulatively these matters led to a miscarriage of justice.
Facts
[4]       The complainant, who was the appellant’s girlfriend, was staying at her home. The appellant turned up and accused the complainant of being unfaithful. An argument ensued. It became physical.
[5]       The appellant’s version of events, as recorded in his statement to the police, was that he and the complainant were in the lounge and the complainant became angry and began hitting and punching him. She then kicked the appellant in his testicles. He “lost it” and punched her in the face. In response the complainant hit the appellant repeatedly. He pushed her away. The complainant’s sister, who was present, then took a golf club and threatened to hit the appellant with it. The appellant wrestled the golf club away from the complainant’s sister. The complainant abused the appellant. After this the appellant and the complainant went for a short walk and then returned to the house. The complainant had a bleeding nose. The appellant called for an ambulance after laying the complainant down on her bed so she could rest. The appellant said that in total he had hit the complainant a couple of times. He had not meant to hit her as hard as he did.
[6]       The Crown’s version of events was that the appellant chased the complainant after she initially hit him in the lounge. He, not the complainant’s sister, grabbed the golf club and prepared to strike the complainant with it. However the complainant’s sister intervened to prevent this. The complainant tried to call the police, but the appellant took the phone from her and chased her into the bedroom. The appellant kicked her in the face while she was on the floor of the bedroom.
[7]       The assault with a weapon charge arose from the incident with the golf club. The wounding with intent to injure charge arose out of the other injuries sustained by 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 McDonald

Details

AGLC: R v McDonald [2007] NZCA 142
Case: [2007] NZCA 142
Decision Date: 20 April 2007

CaseChat Overview and Summary

In the appeal from the Court of Appeal of New Zealand, Palmiro McDonald appeals his conviction for wounding with intent to injure, stemming from an altercation with his girlfriend. The appeal raises three grounds: the trial judge's refusal to include an assault charge, references to past assaults by the complainant, and a comment by the prosecutor impugning the defence counsel. The Court examines each ground in turn. Regarding the first ground, the Court found no error in the judge's decision to not include an assault charge, as there was no proper evidential basis for such a charge. The second ground concerned the complainant's references to past assaults by the appellant, which the Court deemed illegitimate and prejudicial but ultimately curable by the trial judge's direction to the jury to ignore such comments. The third ground, involving the prosecutor's comment, was found to be an attack on the defence case rather than the defence counsel's character or tactics. The Court concludes that none of the grounds demonstrate a miscarriage of justice and dismisses the appeal.

The Court of Appeal affirms the conviction and sentence of Palmiro McDonald. The appeal is dismissed, and the original conviction and sentence stand.

Orders