Taingahue v The Queen - [2016] NZHC 1310

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2016-416-00009 [2016] NZHC 1310

BETWEEN
CHARLENE TAINGAHUE

Appellant

AND

THE QUEEN Respondent

Hearing: 18 May 2016

Counsel:

V Thorpe for Appellant
F Cleary for Respondent

Judgment:

16 June 2016

JUDGMENT OF BROWN J

Introduction

[1] On 7 January 2015 the appellant and two other women, one of whom, Destiny Taingahue, was identified and also charged, attacked Jade Taylor by dragging her from a motor vehicle and assaulting her on the kerb of a Gisborne street.1 Ms Taylor suffered facial injuries and abrasions to her hands and arms and was hospitalised for a short time.

[2] The appellant was charged under s 189(1) of the Crimes Act 1961 with injuring Jade Taylor with intent to cause her grievous bodily harm. After a defended hearing on 9–10 November 2015 before Judge W P Cathcart in the District Court at Gisborne the appellant was convicted of the charge. On 29 January 2016 she was sentenced to three years’ imprisonment. The appellant appeals against both the
conviction and sentence.

1 A fourth woman was also charged although she did not participate directly in the assault. See
Hubbard v The Queen [2016] NZHC 1311.

Grounds of appeal

[3] The notice of appeal dated 29 January 2016 specified the grounds of appeal as follows:

The learned Judge erred in determining that there was sufficient evidence from which he could infer that the appellant had formed the necessary intention as a party to cause grievous bodily harm to the victim.

The sentence opposed (sic) was manifestly excessive, and the learned Judge failed to give adequate discount for mitigating factors.

Approach on appeal

[4] On an appeal against conviction under s 229 of the Criminal Procedure Act

2011 the appeal court must allow the appeal if satisfied that:2

(a) the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b) in any case, a miscarriage of justice has occurred for any reason. The appeal court must dismiss the appeal in any other case.

[5] An appeal against conviction is by way of rehearing. The approach of the

Court is as explained in Austin, Nichols & Co Inc v Stichting Lodestar:3

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error of the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[6] An appeal against sentence is brought under s 244 of the Criminal Procedure
Act…

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] NZHC 1310
Case: [2016] NZHC 1310
Decision Date: 16 June 2016

CaseChat Overview and Summary

Charlene Taingahue appealed against her conviction and sentence for injuring Jade Taylor with intent to cause her grievous bodily harm. The appellant and two other women had assaulted Ms Taylor by dragging her from a motor vehicle and assaulting her on the kerb of a Gisborne street. Ms Taylor suffered facial injuries and abrasions to her hands and arms and was hospitalised for a short time. The appellant appealed against both the conviction and sentence. The grounds of appeal were that the learned Judge erred in determining that there was sufficient evidence from which he could infer that the appellant had formed the necessary intention as a party to cause grievous bodily harm to the victim and that the sentence imposed was manifestly excessive and that the learned Judge failed to give adequate discount for mitigating factors. The court found that there was no error in the Judge’s approach and the appeal against conviction was dismissed. The court found that there was no error demonstrated in the sentencing analysis and the appeal against sentence was dismissed. The final orders were that the appellant’s appeal against conviction was dismissed and the appellant’s appeal against the sentence of three years’ imprisonment was dismissed.

Orders