The Queen v Brown - [2008] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND
CA392/07
[2008] NZCA 156
THE QUEEN
v
MATTHEW RICHARD BROWN
Hearing:26 May 2008

Court:William Young P, Randerson and Harrison JJ
Counsel:C J Tennet for Appellant

B M Stanaway for Crown

Judgment:9 June 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
An appeal against conviction
[1]       Following a trial before Judge Doherty and a jury in the District Court at Christchurch, the appellant was found guilty of injuring Mark Oakenshield with intent to injure him. He subsequently received a community based sentence.
[2]       He now appeals against conviction.
[3]       In support of the appeal against conviction, Mr Tennet argued that:
(a)The appellant was incompetently represented by his counsel;
(b)The Judge should have declared a mistrial because of Mr Oakenshield’s conduct in the witness box;
(c)The prosecutor’s cross-examination of the appellant and closing address were illegitimate;
(d)The Judge misdirected the jury on self-defence; and
(e)The Judge misdirected the jury as to the standard of proof.

We will discuss the case primarily by reference to these contentions but, before we do so, we must say something about the factual background and the course of the trial.
The factual background and the course of the trial
[4]       The case arose out of an incident which occurred at around 9.15am on Thursday 9 March 2006 outside the Crichton Cobbers gymnasium on Chester Street East, Christchurch. The appellant and Mr Oakenshield were both members of the gymnasium. ;There had been some bad blood between them but this was not explored in any detail at trial.
[5]       The Crown case was along the following lines. The appellant saw Mr Oakenshield outside the gymnasium and rushed towards him. He then headbutted Mr Oakenshield in the face and punched him repeatedly to the head. The appellant then pulled Mr Oakenshield to the ground where the struggle continued. Eventually Mr Oakenshield was able to push the appellant away and stand up. But this resulted in the appellant biting his right middle finger and headbutting him again.
[6]       The defence case, supported primarily by the evidence of the appellant but also to some extent by a Mr Douglas Shaw, was that the incident started with Mr Oakenshield assaulting or threatening to assault the appellant. So the defence at trial was essentially one of self-defence although whether the appellant had intended to injure Mr Oakenshield was also in issue.
[7]        The appellant’s evidence was that he lost his two front top teeth in the struggle. Mr Oakenshield’s response was that the appellant just spat out a plate to suggest that he had been struck in the face. His primary reason for saying this seems to have been his contention that he had not landed a punch on the appellant.
[8]       The primary witness for the Crown was Mr Oakenshield. He received reasonably serious injuries in the altercation and, on his account of events, had every…

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 Brown

Details

AGLC: The Queen v Brown [2008] NZCA 156
Case: [2008] NZCA 156
Decision Date: 9 June 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Matthew Richard Brown, appealed his conviction for injuring Mark Oakenshield with intent. The Crown argued that the appellant saw Mr Oakenshield outside the gymnasium and rushed towards him, headbutting him in the face and punching him repeatedly. The defence claimed that the incident started with Mr Oakenshield assaulting or threatening to assault the appellant, and that the appellant's actions were in self-defence. The appeal against conviction raised several issues, including whether the appellant was incompetently represented by his counsel, whether the Judge should have declared a mistrial because of Mr Oakenshield's conduct in the witness box, whether the prosecutor's cross-examination of the appellant and closing address were illegitimate, whether the Judge misdirected the jury on self-defence, and whether the Judge misdirected the jury as to the standard of proof.

The Court found that the appellant was not incompetently represented by his counsel. Although there were some criticisms of the counsel's performance, the Court found that there was no miscarriage of justice. The Court also found that the Judge did not err in not declaring a mistrial because of Mr Oakenshield's conduct in the witness box. The Court further found that the prosecutor's cross-examination of the appellant and closing address were not illegitimate. The Court did, however, find that the Judge misdirected the jury on self-defence, but found that this did not result in a miscarriage of justice. Finally, the Court found that the Judge's direction on the standard of proof, although not following the suggested direction, sufficed in the circumstances.

The appeal was dismissed.

Orders