The Queen v Boote - [2007] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND
CA347/06
[2007] NZCA 137
THE QUEEN
v
CRAIG ROBERT BOOTE
Hearing:6 March 2007

Court:Ellen France, John Hansen and Williams JJ
Counsel:J H M Eaton for Appellant

D La Hood for Crown

Judgment:19 April 2007 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by John Hansen J)
Introduction
[1] Following a trial before Judge Doherty and a jury in the Christchurch District Court, the appellant was convicted on 17 August 2006 on two counts of assault with intent to injure. He was fined $2,000 for each offence and was ordered to make total reparation of $6,075.10.
[2] The written notice of appeal lists three grounds:
(a)The failure of the learned trial Judge to adequately and fairly put the defence case;
(b)Material misdirection in answering the jury’s questions during jury deliberations;
(c)Material misdirection in failing to adequately and fairly warn the jury as to the risks associated with reliance on the security surveillance video.

[3] In submissions, the appellant relied on the following further alleged material misdirections by the trial judge:
(a)Standard of proof.
(b)Comment pursuant to s 366(1) Crimes Act 1961.

Background
[4]        At around 1 am on Friday 17 December 2004 the appellant, his brother Donald Boote, and their partners were concluding a meal at the Ashburton Hotel Sports Bar. One of the complainants, Phillip Tapara, was a contractor employed by a roading company and was staying at the hotel with fellow employees.
[5]        Mr Tapara was refused service at the bar because of his intoxication. Following this there was an exchange of words between Mr Tapara and the appellant which, the Crown alleges, included the appellant directing racial abuse at Mr Tapara. The Crown case was that the appellant instigated the verbal sparring and was trying to start a fight by baiting Mr Tapara. He was overheard saying words to the effect “I have been waiting for this.”
[6]        The exchange of words escalated to a physical confrontation. The appellant got the better of Mr Tapara, and the Crown allege that whilst he was on the ground the appellant continued to punch him. At this point Mr Tapara’s associates, Samuel Henry (who had not been drinking) and Graham Cameron, became involved in an attempt to break up the fight. They had managed to separate the appellant and Mr Tapara when Donald Boote became involved and knocked Mr Cameron to the ground. Mr Henry, who was holding the appellant, let him go to assist Mr Cameron. The Crown alleges the appellant then went back to Mr Tapara and punched and kicked him while he was on the ground. The appellant next went over to Mr Cameron, pushed past his own partner, and punched and kicked Mr Cameron. He then returned to punching Mr Tapara before finally returning to Mr Cameron and punching him while he was on the ground.
[7]        As a consequence, the appellant was charged with assault with intent to injure…

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 The Queen v Boote

Details

AGLC: The Queen v Boote [2007] NZCA 137
Case: [2007] NZCA 137
Decision Date: 19 April 2007

CaseChat Overview and Summary

Craig Robert Boote appeals against his conviction on two counts of assault with intent to injure. The trial took place in the Christchurch District Court before Judge Doherty and a jury. The appellant was fined $2,000 for each offence and ordered to make reparation of $6,075.10. The appellant submits three grounds of appeal against his conviction: (a) the failure of the trial Judge to adequately and fairly put the defence case; (b) material misdirection in answering the jury’s questions during jury deliberations; and (c) material misdirection in failing to adequately and fairly warn the jury as to the risks associated with reliance on the security surveillance video. The Crown submits that the trial Judge’s summing up was adequate and fair, and that the Judge did not misdirect the jury in any way. The Court of Appeal found no merit in the grounds of appeal. The appeal against conviction on both counts is dismissed.

Orders