Taingahue v The Queen - [2016] NZCA 557

IN THE COURT OF APPEAL OF NEW ZEALAND

CA409/2016
[2016] NZCA 557

BETWEEN	CHARLENE JOSEPHINE TAINGAHUE Applicant
AND	THE QUEEN Respondent

Court:

Kós P, French and Venning JJ

Counsel:

G Ghahraman for Applicant
P D Marshall for Respondent

Judgment:

(On the papers)

29 November 2016 at 2 pm

JUDGMENT OF THE COURT

A An extension of time to apply for leave to appeal is granted.
BThe application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Charlene Taingahue seeks leave to commence a second appeal (out of time). On 5 October 2016 Miller J directed Ms Taingahue’s application be dealt with on the papers.
Following a Judge-alone trial before Judge Cathcart in the District Court at Gisborne Ms Taingahue was convicted of one charge of injuring with intent to cause grievous bodily harm.[1] The charge arose from her involvement in an incident in Gisborne on 7 January 2015. The Judge sentenced Ms Taingahue to three years’ imprisonment.[2]
[1]R v Hubbard [2015] NZDC 22361.
[2]R v Hubbard [2016] NZDC 1484.
Brown J dismissed her appeal against conviction and sentence on 16 June 2016.[3]
[3]Taingahue v R [2016] NZHC 1310.
The application for leave to bring a second appeal against conviction should have been filed by 14 July 2016.[4] Although it was not filed until 11 August, the respondent did not take issue with lateness in its submissions.

Brief facts

[4]Criminal Procedure Act 2011, s 239(2).

We take the background facts from the decision of Judge Cathcart:[5]
[129]    I accept [the complainants’] evidence that they were waiting at the address for [defence witness] Ms Fox to return and that she arrived about five minutes later. I accept their evidence that the return of Ms Fox was followed by the other vehicle shortly thereafter. I accept the Crown’s position on the evidence that the three defendants were accompanied by an unknown woman, that they all got out of the vehicle at the same time. On the evidence, I accept that three of the women, including Charlene Taingahue and Destiny Taingahue, went to [the complainant] Ms Taylor’s side of the vehicle and that Ms Hubbard to the driver’s side.
[130]    Also, I accept as both truthful and reliable, Ms Taylor’s evidence that the spanner was used initially and that she was struck over the head, by one of the three women that I have referred to, on her side of the vehicle.
[131]    Most importantly, I accept the evidence of both Ms Taylor and [Ms Taylor’s mother] Ms Dominey, that all three women on Ms Taylor’s side of the vehicle, attacked Ms Taylor. One of them, having dragged her from the vehicle. It appears quite clear now that that was the defendant Charlene Taingahue.
[132]    … it is clear that all three women were involved in the assault. As I have indicated earlier, I accept [Ms Dominey’s evidence] that what took place (while she was sitting in the driver’s seat) when her daughter was…

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 Taingahue v The Queen

Details

AGLC: Taingahue v The Queen [2016] NZCA 557
Case: [2016] NZCA 557
Decision Date: 29 November 2016 at 2 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Charlene Josephine Taingahue sought leave to appeal against her conviction and sentence for injuring with intent to cause grievous bodily harm. Taingahue was convicted and sentenced to three years' imprisonment following a trial in the District Court at Gisborne. Her appeal against the conviction and sentence was dismissed by Brown J. Taingahue applied for leave to appeal a second time, out of time, and the application was dealt with on the papers. The key legal issues were whether the appeal involved a matter of general or public importance, or whether a miscarriage of justice had occurred or may occur. The Court held that the appeal did not involve a matter of general or public importance, as the approach to the assessment of intent had already been addressed by the Court and the Supreme Court. The Court also held that there was no miscarriage of justice, as the trial Judge had found that there was ample evidence to justify the conclusion that at least one of the three women intended to cause grievous bodily harm to the victim. Therefore, the Court granted an extension of time to apply for leave to appeal but declined the application for leave to appeal.

Orders