R v Wi - [2009] NZCA 81

IN THE COURT OF APPEAL OF NEW ZEALAND
CA586/2008
[2009] NZCA 81
THE QUEEN
v
AARON MARK WI
Hearing:4 March 2009

Court:Arnold, Ronald Young and Venning JJ
Counsel:G J King for Appellant

N P Chisnall for Crown

Judgment:17 March 2009 at 10 am

JUDGMENT OF THE COURT

A Leave to file an affidavit from Mr Earwaker is granted.
B The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by Arnold J)

INTRODUCTION
[1]       Following a jury trial before Judge Harding the appellant was found guilty on one charge of wounding a police constable with intent to cause him grievous bodily harm and one count of assaulting another constable with intent to injure him (ss 188(1) and 193 of the Crimes Act 1961 respectively). The Judge sentenced him to seven years imprisonment, with a minimum period of imprisonment (MPI) of four years, on the wounding count and to 18 months imprisonment on the aggravated assault count, to be served concurrently.
[2]       The appellant now appeals against both conviction and sentence.
Factual background
[3]       Senior Constable Bennett and Constable Horler were on patrol in a police car in the Papamoa area on the evening/early morning of 15/16 November 2003. As they were checking a car park adjacent to a restaurant sometime after midnight they heard someone yelling. The voice was that of a male. He was directing invective at them. They decided to check what was happening. Both were in uniform. They left the car and walked to where the noise was coming from.
[4]       The appellant, his mother, his partner, his two brothers and the partner of one of them had been guests at a wedding function held at the restaurant. When the function finished shortly after midnight on 16 November they were the only guests left. They were standing outside an exit from the restaurant. Three female staff members were tidying up in the restaurant. The appellant’s group had watched a delayed telecast of a rugby game, which New Zealand had lost. The appellant was apparently upset by the result and was aggressive and abusive towards members of his family, who were attempting to calm him down.
[5]       Constable Bennett approached the group by walking up a grass bank. As he came to the top of it, he heard a woman screaming and the sound of a struggle. He ran to the top of the bank. He saw the group, but could not see clearly what was happening. As the constable approached, the appellant’s mother interposed herself between him and the appellant. The constable pushed her aside. The Crown said that the appellant ran at the constable, hitting him on the head with a beer handle. Constable Bennett then grabbed the appellant in a rugby tackle. The appellant continued to hit him on the head with the beer handle, striking him somewhere between six and ten times in total. One of the appellant’s brothers, Varian, was also swinging punches at Constable Bennett.
[6]       At this point…

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 Wi

Details

AGLC: R v Wi [2009] NZCA 81
Case: [2009] NZCA 81
Decision Date: 17 March 2009

CaseChat Overview and Summary

Aaron Mark Wi appeals against his conviction and sentence for charges of wounding a police officer with intent to cause grievous bodily harm and assaulting another officer with intent to injure. The appellant was sentenced to seven years imprisonment with a minimum period of imprisonment (MPI) of four years on the wounding count, and 18 months imprisonment on the aggravated assault count, to be served concurrently. The Court of Appeal of New Zealand was tasked with determining the validity of the appeal against conviction and sentence. The court found that the evidence presented was sufficient for the jury to reasonably conclude that the appellant was guilty of both charges. The court rejected the appellant's argument that the evidence did not support the jury's verdicts, and that the judge erred in allowing cross-examination based on a letter written to the Police Complaints Authority. The court also rejected the appellant's claim that his trial was rendered unfair due to his counsel's closing address being given when the jury was tired. In regards to the sentence appeal, the court found that the sentence was not manifestly excessive and that the imposition of a MPI was justified. The appeal against conviction and sentence was dismissed, and the original sentence was upheld.

Orders